Most people Marcus defends on DUI charges have never been arrested before. One night, one decision, and suddenly your license, your job and your reputation all feel uncertain. A DUI arrest is the start of a process, not the end of it, and there is often more room to defend the case than people expect.
This page explains how a first DUI generally works in California and in San Diego County: what the charges mean, how breath, blood and roadside tests are used, what the separate DMV case involves, how a case moves through court, and what can be done afterwards to put it behind you. It is written for people who want to understand their situation before they talk to an attorney, and for family members trying to help.
What a DUI charge means in California
California's main DUI law is Vehicle Code section 23152. In a typical first DUI, two charges are filed together for the same driving:
- Driving under the influence, VC 23152(a). The prosecution claims alcohol impaired your ability to drive with the caution of a sober person. This charge does not depend on a number. It is usually built from the driving the officer saw, your appearance and speech, what you said, and how you did on roadside tests.
- Driving with a blood alcohol concentration of 0.08 percent or more, VC 23152(b). This is often called the "per se" charge. The prosecution does not have to prove you were impaired, only that your blood alcohol was at or above 0.08 percent while you were driving.
Because a test is usually taken some time after the driving, the law includes a rebuttable presumption: if a chemical test taken within three hours of driving shows 0.08 percent or more, it is presumed you were at that level when you drove. "Rebuttable" matters. Evidence about when you drank, what you ate and how alcohol absorbs can sometimes show the level was lower at the time of driving.
If you are convicted, you are generally sentenced on only one of the two charges, even though both were filed. A jury can also find someone not guilty of one and guilty of the other, which is one reason each charge deserves its own analysis.
Related charges
Other parts of section 23152 cover driving under the influence of drugs, and the combined influence of alcohol and drugs. Lower limits apply to commercial drivers and, for alcohol, to people driving passengers for hire. A DUI that causes injury to another person is charged under a different section, Vehicle Code 23153, and can be filed as a felony. This page focuses on DUI cases without injuries. If someone was hurt, see felony defense.
A first DUI without injuries is generally a misdemeanor. That does not make it minor. A misdemeanor conviction is a criminal record, and a DUI carries license and insurance consequences that most misdemeanors do not.
How a San Diego DUI case usually starts
Most DUI cases begin in one of a few ways: a traffic stop for a driving issue such as weaving, speeding or an equipment violation; a collision; a call from another driver; or a sobriety checkpoint. City police departments, the California Highway Patrol and the Sheriff's Department all make DUI arrests in the county.
The investigation at the roadside
Once a driver is stopped, the officer is generally looking for signs of impairment: the odor of alcohol, red or watery eyes, slurred speech, fumbling with a license. The officer usually asks whether you have been drinking, where you are coming from and when you last ate. Then the officer may ask you to step out of the car for field sobriety tests and a preliminary breath test. All of this is evidence, and it is written up in a report that the prosecutor relies on later.
The arrest and the chemical test
If the officer decides there is probable cause, you are arrested and asked to complete a breath or blood test. In many cases the officer takes your physical driver's license and gives you a pink notice that serves as a temporary license, generally valid for 30 days. That notice is also the start of the DMV case, discussed below.
Release and the first court date
Many people arrested for a first DUI are booked and then released within hours, often with a notice listing a court date. The date on the paperwork is not always the date the case is actually heard. Prosecutors may file the case later, and some cases are not filed at all. It is worth having an attorney check where the case stands rather than assuming. For a step-by-step look at the first days, read what happens after a DUI arrest.
What to do in the first few days
- Find your paperwork. Keep the pink notice, any citation, the release papers and any property receipt together. The dates on them matter.
- Write down what you remember. Note where you were, what you drank and ate and when, who you were with, and what the officer said. Memories fade quickly.
- Keep receipts and names. Bar or restaurant receipts and the names of people who were with you can help build a timeline.
- Do not discuss the case on social media, by text, or with anyone other than your attorney.
- Talk to an attorney before the 10-day DMV deadline passes.
Roadside, breath and blood tests
Test results can look like hard facts, but they come from machines, samples and people, and each step has rules. Understanding which tests are voluntary, and which are not, is one of the most common questions after an arrest.
Field sobriety tests
Field sobriety tests are the physical tasks officers ask drivers to perform before an arrest, such as following a pen with your eyes, walking heel to toe along a line, or standing on one leg. In California these tests are generally voluntary, and there is no license penalty for declining them. When they are done, conditions matter: uneven pavement, wind, poor lighting, footwear, nerves, fatigue, age, weight and injuries can all affect performance. An attorney reviews whether the instructions were given properly and whether the officer's scoring matches what the video shows.
The preliminary alcohol screening test
The handheld breath device used at the roadside before an arrest is called a preliminary alcohol screening, or PAS, test. For most drivers 21 and older, California law treats the PAS as voluntary, and the officer is generally required to tell you that you can refuse it. There are important exceptions. Drivers under 21, and drivers who are on probation for a DUI, can be required to take it and face consequences for refusing. Taking or declining the PAS also does not replace the chemical test required after a lawful arrest.
Breath tests after arrest
The breath test given after arrest, usually at a station or in a mobile unit, is regulated in detail by state regulations often called Title 17. Among other things, the subject is generally supposed to be observed for at least 15 minutes beforehand so that burping, vomiting or anything in the mouth does not affect the reading, and two breath samples are expected to agree closely. Devices need regular accuracy checks and maintenance records. Gaps in those records, a skipped observation period, or medical issues such as acid reflux can raise doubts about a breath number.
Blood tests
Blood is often considered more precise, but it carries its own risks. The sample must be drawn properly, mixed with the right preservatives, labeled, stored and transported correctly, and analyzed by a qualified lab. Problems with chain of custody, storage or the analysis itself can affect the result. In many cases part of the sample is kept and may be available for independent retesting, which is worth asking about early.
Timing and rising blood alcohol
Alcohol takes time to absorb. Someone who drank shortly before driving may have had a lower level at the wheel than at the station an hour later. A timeline built from receipts, witnesses and the police report can sometimes support that argument, especially when a result is close to the legal limit.
Already took the test? That does not end the case. Most DUI defenses start with how the stop happened and how the test was given, and those questions are the same whether the number is low or high.
Implied consent and refusing a test
California's implied consent law, Vehicle Code 23612, says that anyone who drives in the state is considered to have agreed to a chemical test of breath or blood if lawfully arrested for DUI. When alcohol is the only suspicion, a driver is generally offered a choice between breath and blood. When drugs are suspected, a blood test may be requested.
What a refusal can mean
Refusing the chemical test after a lawful arrest can bring a longer license suspension than a test result would. For a first refusal, the DMV suspension is generally one year, and longer with prior refusals or DUI convictions. A refusal can also be used as evidence in court and, if there is a DUI conviction, can increase the penalties. In many cases officers also seek a warrant to draw blood after a refusal, so a refusal does not necessarily mean there is no test result.
Refusal cases can be challenged
A refusal is not simply a yes or no question. Officers are expected to explain the consequences of refusing, and confusion, medical problems, language barriers or an unclear exchange can matter. Some drivers who are recorded as refusing actually tried to comply, for example by attempting a breath test they could not complete. The arrest itself also has to be lawful. Refusal allegations deserve careful review in both the DMV case and the court case.
The DMV case and the 10-day deadline
After a DUI arrest there are two cases, not one. The criminal case happens in court. The license case, often called the administrative per se case, happens at the DMV. They run separately, use different rules, and can reach different results.
Days to request a DMV hearing. In California you generally have only 10 days from the arrest notice to request a hearing about your driver's license. If no hearing is requested, a suspension usually takes effect automatically when the temporary license expires. Read about the 10-day deadline.
What the DMV hearing looks at
The hearing is generally limited to a few questions: whether the officer had reasonable cause to believe you were driving under the influence, whether you were lawfully arrested, and whether you were driving with 0.08 percent or more, or refused a test after being properly advised. Hearings are often held by phone or video. Your attorney can review the DMV's evidence, raise objections, present evidence and, in some cases, ask for the officer to testify.
What happens to your license
For an adult driver with no prior DUI who took the test, the DMV suspension for a 0.08 or higher result is generally four months. In many first DUI cases, a driver can get back on the road sooner with a restricted license, often by installing an ignition interlock device, a small breath-testing unit wired into the car's ignition. Requesting the hearing within 10 days often keeps your temporary driving privilege in place until the hearing decision, and it preserves options that may be lost if the deadline passes.
| DMV case | Court case | |
|---|---|---|
| Decides | Your driving privilege | Guilt or innocence, and any sentence |
| Starts with | The pink notice given at arrest | A complaint filed by the prosecutor |
| Key deadline | 10 days to request a hearing | The arraignment date |
| Standard of proof | Lower, administrative standard | Proof beyond a reasonable doubt |
| Possible outcomes | Suspension set aside, or imposed | Dismissal, reduction, acquittal or conviction |
A conviction in court can bring its own, separate license suspension, and the DMV can also require proof of insurance, often called an SR-22, before reinstating your license. Coordinating the two cases is part of defending a DUI well.
DUI involving drugs or prescription medication
You can be charged with DUI in California without any alcohol at all. The law covers driving under the influence of any drug, including cannabis, illegal drugs, over-the-counter medicine and prescription medication. Having a valid prescription is not a defense in itself. The question is whether the substance impaired your ability to drive safely.
How drug DUI cases differ
Unlike alcohol, California has no set legal limit for most drugs. That means the prosecution generally has to prove actual impairment. A blood test can show that a substance was present, but presence alone does not always prove impairment at the time of driving. Some substances, including cannabis, can remain detectable long after their effects have worn off.
Drug recognition evaluations
In many drug DUI cases an officer trained as a drug recognition evaluator conducts a structured evaluation, checking pulse, blood pressure, pupil size, muscle tone and other signs. These evaluations are open to questions about how they were conducted and whether the conclusions follow from the observations. Medical conditions, fatigue and the combination of medications can all produce signs that look like impairment. If your case also involves possession of a controlled substance, see drug crimes.
Underage, commercial and out-of-state drivers
Drivers under 21
California applies stricter alcohol rules to drivers under 21. Under the state's zero tolerance law, a driver under 21 with a blood alcohol level of 0.01 percent or more can face a license suspension through the DMV, even without any criminal charge. A separate law makes it an offense for a driver under 21 to drive with 0.05 percent or more. A young driver at 0.08 percent or above can be charged with a standard DUI. For students and young people starting careers, these cases can affect school, scholarships and future applications, so they are worth taking seriously from the start.
Commercial drivers
Drivers operating a commercial vehicle face a 0.04 percent limit while driving that vehicle. Just as important, a DUI conviction in your personal car can still affect a commercial driver's license, and a first DUI can lead to a disqualification of commercial driving privileges for a year or more. A restricted license for personal driving generally does not cover commercial driving. For anyone who drives for a living, the DMV case and any plea discussion need to be handled with that in mind. Drivers carrying paying passengers, such as rideshare drivers with a passenger in the car, are also subject to a 0.04 percent limit.
Out-of-state drivers
San Diego sees many visitors, students and seasonal workers. If you hold a license from another state, the California DMV can still suspend your privilege to drive in California, and most states share driver information with one another, so a California DUI can affect your home-state license as well. Out-of-state drivers can request the DMV hearing within the same 10 days. In many misdemeanor cases an attorney may be able to appear for you at some court dates, which can reduce trips back to California.
How a DUI case moves through San Diego courts
DUI cases here are heard by the Superior Court of San Diego County, at courthouses that include the Central Courthouse downtown, the East County Regional Center in El Cajon, the South County Regional Center in Chula Vista and the North County Regional Center in Vista. A case is often heard at the courthouse that serves the area where the arrest happened.
Who prosecutes
Misdemeanor DUIs that happen inside the City of San Diego are generally prosecuted by the City Attorney's Office. Misdemeanors elsewhere in the county, and felony DUIs, are generally prosecuted by the County District Attorney. The prosecuting office can affect how a case is negotiated, so it is one of the first things an attorney confirms.
The main stages
- Arraignment. The first court date. The charges are read and a plea is entered, usually not guilty at this stage. In many misdemeanor cases your attorney may appear for you. See what to expect at an arraignment.
- Discovery and investigation. The defense obtains the police report, body camera and dash camera video, breath device records, blood test documentation and other evidence.
- Pretrial or readiness conferences. The defense and the prosecutor discuss the evidence and possible resolutions in front of a judge. Many DUI cases are resolved at this stage.
- Motions. If the stop, detention or arrest was unlawful, the defense can ask the court to suppress evidence. Other motions can address discovery or the admissibility of test results.
- Trial. If the case does not resolve, it can go to a jury trial, where the prosecution must prove each charge beyond a reasonable doubt.
- Sentencing. If there is a conviction, by plea or verdict, the judge imposes a sentence, usually including probation and conditions.
How long it takes
Many misdemeanor DUI cases resolve within a few months, but cases that involve blood testing, motions or trial can take longer. A longer timeline is not always a bad thing. It can give the defense time to investigate and give you time to complete steps that may help your position. For general background on misdemeanor cases, see misdemeanor defense.
What a first DUI conviction can involve
Every case is different, and the outcome depends on the facts, the evidence and the court. In general terms, a first misdemeanor DUI conviction in California can include:
- Probation, usually informal probation lasting several years, with conditions such as not driving with any measurable alcohol and not refusing a test if stopped.
- Fines and assessments. The base fine is increased by state and county assessments, so the total is often much higher than the fine alone.
- A DUI program. First offenders are generally ordered to complete a state-licensed DUI education program, often about three months long, with longer programs possible when the test result was high.
- License consequences imposed through the court and the DMV, which may include a period with an ignition interlock device.
- Jail in some cases. For many first offenses, custody time is limited or may be served through alternatives, but it remains possible, particularly when there are aggravating factors.
Factors that can increase the stakes
Certain facts can make a first DUI more serious, including a blood alcohol level of 0.15 percent or more, a refusal, very high speed or reckless driving, or a collision. Prosecutors and judges often look at these factors closely when deciding what to offer and what to impose.
Ignition interlock devices
An ignition interlock device requires the driver to give a breath sample before the car starts and at intervals while driving. California has expanded the use of these devices in recent years, and for many drivers an interlock is now the practical route to keep driving after a DUI arrest or conviction. The required period depends on the offense and the driver's history.
Defenses and issues an attorney reviews
A good DUI defense starts with the details. These are some of the questions a San Diego DUI attorney looks at in a first offense:
The stop and the detention
An officer needs a lawful reason to stop a car. Checkpoints must follow established guidelines. If the stop was not lawful, evidence gathered afterwards may be suppressed. Once stopped, the officer needs a basis to keep investigating, and probable cause to arrest.
Whether you were driving
California generally requires evidence that the vehicle actually moved while you were in control of it. Cases where someone was found asleep in a parked car, or where no one saw who was driving, can raise real questions.
The test and the timeline
Was the observation period followed? Was the device maintained and checked? Was the blood sample handled correctly? Does the drinking timeline support a rising blood alcohol argument? Do medical conditions, diet or dental work explain a reading? Independent analysis of the evidence is sometimes appropriate.
Statements and video
Body camera and dash camera footage often tells a fuller story than the written report. Video can contradict claims about slurred speech or poor balance. Statements made after an arrest without required warnings may also be challenged in some situations, although questions at the roadside before an arrest generally do not require those warnings.
Reductions and alternatives
When the evidence has weaknesses, a prosecutor may sometimes agree to a reduced charge. One common reduction is a plea to reckless driving involving alcohol, often called a "wet reckless." It can carry lighter consequences than a DUI conviction, but it still counts as a prior if there is a later DUI within 10 years. In some cases a plea to reckless driving without the alcohol designation, or a dismissal, may be possible. California's general misdemeanor diversion law is generally not available for DUI charges, but other options may exist depending on the facts.
Jobs, immigration and military service
For many people, the consequences outside the courtroom are the biggest worry. Planning for them early can shape how the case is handled.
Jobs and professional licenses
A DUI conviction can appear on background checks. Nurses, teachers, real estate agents, contractors and other licensed professionals may have reporting obligations to their licensing boards, and some employers require employees to report arrests or convictions. Jobs that involve driving, and positions that require a security clearance, can be particularly sensitive.
Immigration
A single DUI with no aggravating facts is generally treated less harshly under immigration law than many other offenses, but it can still cause problems, for example for visa holders, DACA recipients and people applying for naturalization. If you are not a U.S. citizen, tell your attorney early so the case can be handled with your status in mind, and consult an immigration attorney about your specific situation.
Military members
This region is home to a large military community. A service member arrested off base is generally prosecuted in state court like any other driver, but the command may also learn of the arrest and take its own action. Current and former service members may be eligible for military diversion in some misdemeanor cases. Whether it can apply to a DUI charge depends on the current law and the facts, so ask Marcus about your situation. If the arrest happened on a base, tell Marcus, because the case may follow a different path.
Insurance and travel
Insurance premiums often rise after a DUI conviction, and some insurers cancel or decline to renew policies. Travel can also be affected: Canada, for example, may deny entry to people with a DUI conviction.
Clearing your record afterwards
A DUI conviction does not have to define you. Many DUI convictions in California can be dismissed under Penal Code 1203.4, often called expungement, once probation has been completed. In some cases it may be possible to ask the court to end probation early.
Expungement can help with many private employment applications, but it has limits. A dismissed DUI still counts as a prior for 10 years if there is ever a new DUI, it remains on your DMV record, and it may still need to be disclosed in some licensing and government applications. Read Can a DUI be expunged in California? and see record sealing and expungement for more on the options.
If you are on probation and something goes wrong, such as a missed class or a new arrest, act quickly. See probation violations and warrants. If you already have a DUI on your record and are facing a new one, read about second and third DUI cases, because the stakes are very different.
Working with Marcus
Marcus E. DeBose has defended San Diego clients since 2001. Early in his career he carried a caseload of 125 felony cases at one time, and he has won multiple "Not Guilty" verdicts at jury trial. Today he is a partner at Tegnelia & DeBose, APC, the firm behind Email My Lawyer.
His approach to a DUI starts with a long first conversation. He wants to know what happened that night, what led up to it, and what is at stake for you: your job, your family, your license, your plans. Many of his clients have never been in trouble before. Once he understands your situation, he reviews the evidence for weaknesses and tells your story to the prosecutor and the judge, so that they see a person, not just a police report.
You work with Marcus directly, not with a rotating team, and you can reach him day or night. He appears in courthouses across San Diego County, from downtown to El Cajon, Chula Vista and Vista, as well as the Southwest Justice Center in Murrieta for clients in southwest Riverside County. Marcus is bilingual in English and Spanish. Hablamos español.
Your first consultation is free. Meet Marcus at the Mission Valley office, or talk by phone or Zoom. Request a consultation or learn more about Marcus.
This page is general information about California law, not legal advice for your situation. Every case is different, and past results do not guarantee a similar outcome.