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4th Offense DUI

A 4th offense DUI is one of the severe forms of DUI that a person can experience. Since DUI is a priorable offense, subsequent offenses within ten years of the first conviction usually carry harsher penalties. Keep in mind that while in most cases, 1st, 2nd, and 3rd DUI offenses are charged as misdemeanors, a 4th offense DUI will be charged as a felony. Thus, it is crucial to have an experienced Los Angeles DUI defense attorney that will explore all the available options that could see your charges reduced or dropped. We invite you to get in touch with us at Leah Legal so that we can represent and defend you depending on the facts of your case.

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An Overview of 4th Offense DUI in California

Driving under the influence is priorable in California. That means every time you're convicted of wet reckless or another DUI offense, your penalties increase. If you have been arrested for DUI, and you have three previous DUI convictions within ten years, chances are you will be charged with a California 4th offense DUI (which is a felony). Under Vehicle Code 23152 VC, the previous convictions comprise of any of the convictions listed below:

  • Driving under the influence (Vehicle Code 23152 (a))
  • Operating a vehicle with a BAC higher than 0.08% (Vehicle Code 23152 (b))
  • Wet reckless (Vehicle Code 23103.5)
  • Any out-of-state conviction that can be considered as a conviction of any of the above crimes
  • An expunged drunk-driving conviction for any of the above crimes

Elements of the Crime

To prove that you violated the Felony DUI laws under California Vehicle Code Section 23152 VC, the prosecutor must prove that:

  • You drove a vehicle
  • You drove with a blood alcohol content of 0.08% or higher
  • You have three previous convictions under the California vehicle codes highlighted above within ten

To establish that you've at least three previous convictions, the prosecution team will use your certificates of successful completion of mandatory drugs or alcohol education programs, California Department of Motor Vehicles records, and court records. California records will establish California wet reckless and DUI convictions while out-of-state court and DMV records will prove out-of-state offenses that qualify to be drunk driving convictions in California.

Definition of Key Terms


If the arresting police officer sees you operating a vehicle, then this element of the crime is met. However, this is not always the situation. What happens if the car's motor is running, but the defendant has not moved the vehicle? What if you were sleeping in the vehicle?

There are different driving under the influence circumstances that present themselves every day. Therefore, it isn't adequate for the prosecution team to establish that you were drunk. They should show evidence that you were driving under the influence of alcohol.

Thus, the car should make some movement to constitute driving. Circumstantial evidence (evidence that does not point to guilt directly but can be concluded using the surrounding state of affairs) should prove this movement.

Under the Influence

Under Vehicle Code Section 23152 VC, a person is said to be under the influence due to consuming alcohol. In other words, you are charged with DUI if the alcohol you have consumed is impairing your judgment to a level that you cannot similarly operate a vehicle as a sober driver under similar circumstances.

Well, the way you drive is not decisive of whether you were driving under the influence. It is just one of the factors the court considers when putting everything into account. 

How the Prosecutor Proves that You were Operating a Car while Intoxicated

Fourth DUI offense in California is subjective, and the prosecution team will present evidence that you were driving while drunk by relying on the arresting police officer's observations. The charges against you start when the arresting officer gives evidence about everything you did not do right.

Typically, the officer will bear witness that you were swerving, not in a position to driving with caution like a sober driver and driving erratically. Also, the testifying officer will give evidence that you exhibited objective signs and symptoms of intoxication such as slurred speech, unstable gait, and red, watery eyes.

Penalties for a 4th Offense DUI

Felony DUI offenses in the state of California are harsh and require a solid defense. Although the fourth DUI offense originates from having several previous drunk driving convictions, the penalties vary from one case to another depending on your BAC levels and aggravating factors at the time of arrest as well as the circumstances surrounding the case.

Fourth DUI offense is punishable by:

  • A 16 month, two (2) or three (3) year sentence in prison
  • Fines that range from $390 to $1000
  • A revocation of a driver's license for four years
  • Habitual Traffic Offender (HTO) status for three years

However, under Senate Bill 1046, you can continue enjoying your driving privileges provided you install an ignition interlock device (IID) for at least three years. An ignition interlock device is a breathalyzer that stops a vehicle from starting if it detects alcohol.

Aggravating Factors and Penalty Enhancements

Aggravating factors are circumstances and facts that, if present at the time of your DUI arrest, they will increase your penalties. They include:

  • Refusing to submit a chemical test that leads to an additional eighteen-day sentence.
  • Reckless driving or excessive speed (driving at 20 miles per hour on roadways or 30 miles per hour on highways) attracts sixty more days in prison.
  • Having a minor below fourteen years of age as a passenger at the time of arrest, which attracts ninety more days in prison. There are instances in which you could be sentenced for California Penal Code Section 273a (Child endangerment) that is punishable by a maximum of six years in California state prison.
  • Vehicle Code Section 23153 VC (DUI with injury) would lead to two years in California state prison, three to six years in prison if you caused severe bodily hurt and one to three more years for every person injured and a fine of $5,000.
  • DUI manslaughter (California Penal Code Section 191.5 PC) is punishable by sixteen months, two or four years in prison, and $10,000 in fines.
  • Under Penal Code Section 187 PC, Watson murder is charged as a second-degree murder, which is punishable by $15,000 in fines and fifteen years to life imprisonment.

An Arraignment in a DUI Court Process

A DUI court process starts with an arraignment and finishes when you're sentenced for or acquitted of the charges. DUI arraignment is the stage where the prosecution team gives you the first offer. An offer in this context can be defined as the sentence that the prosecution team agrees to and recommends that you plead guilty to the charge.

In other words, it offers you an opportunity to plead guilty, no contest, or not guilty to your charges. If you plead guilty, you will be sent to prison, and your case will end. If you plead not guilty, you have a right to analyze and challenge evidence presented by the prosecutor.

Legal Defenses for Fighting a 4th Offense DUI

It is difficult for somebody without legal training or experience to assess the strengths and weaknesses of your DUI case. This is because California DUI laws are complicated and keep changing, and each case is unique. Therefore, getting the input of a qualified criminal defense attorney can be very instrumental.

Your DUI attorney will use the following legal defenses.

Objective Signs of Intoxication are Different from a DUI

One of the most effective methods to fight DUI charges is challenging the prosecution team's use of signs and symptoms of intoxication to prove that you were drunk. Like mentioned earlier, the arresting officer will undoubtedly bear witness that you were intoxicated because you had an unsteady gait, red and watery eyes, flushed face, alcohol odor on the breath, and slurred speech.

Your lawyer should be able to argue that those signs were as a result of allergies, fatigue, sun exposure, cold, physical injury, or eye irritation. The lawyer should also argue that what is identified as alcohol on the breath can be the smell of other things found in alcoholic and non-alcoholic drinks like malt and hops in beer.

The Arresting Officer Did not Adhere to Title 17 Regulations on Chemical Tests

Code of Regulations Title 17 outlines requirements on how chemical tests should be conducted. These requirements include:

  • Proper training of the officer conducting the blood, breath, and urine tests
  • Regular maintenance and calibration of the chemical testing equipment
  • Proper administration of chemical tests
  • Proper collection, storage, and handling of urine (although in rare cases) or blood samples
  • A fifteen-minute observation by the arresting police officer

Failure to follow Title 17 Regulations could result in tainted chemical test results. A skilled DUI attorney can use the failure to strictly observe even a single requirement to call the investigation into question, hence successfully fight the driving under the influence charges against you.

You were not Driving under the Influence because you were mentally alert

The difference between mental impairment and physical impairment forms a basis of effective DUI legal defense. Typically, the prosecution team will testify that a defendant showed physical signs of impairment, but will occasionally prove that the defendant exhibited mental impairment signs.

DUI toxicologists will tell you that it is uncommon for a drunk person to be physically impaired but not mentally impaired. This is because drugs-related or alcohol impairment at all times presents itself as mental impairment first. As a result, a DUI defense lawyer can argue that a person who displayed no signs and symptoms of mental impairment most likely had other explanations of physical signs that resemble DUI.

The arresting Police Officer did not follow the proper procedures

Just like charges of several offenses, failure to follow proper procedures is a significant defense against fourth offense DUI. A DUI investigation should be guided by procedures that protect a defendant from police misconduct. These procedures include:

  • A requirement that the law enforcers had probable cause to a traffic stop, DUI arrest, or DUI investigation
  • Title 17 regulations and procedures (that were discussed above)
  • The police read the Miranda rights before the DUI interrogation.

Miranda rights are warnings that the arresting officer should give before they start questioning you after an arrest. Typically they begin with the statement, "You have a right to remain silent."

If any of the above protections are broken, your lawyer should request a California Penal Code 1538.5 PC hearing (suppression hearing). The hearing acts to:

  • Remove any evidence that was not properly acquired, and
  • Give your attorney a pre-trial opportunity to bring to light gaps in the prosecution case against you as well as persuade the court to reduce or drop the DUI charges.

DUI Sobriety Checkpoints did not comply with the law

DUI sobriety checkpoints should comply with the following strict legal requirements:

  • Having officers organize, oversee, and supervise the checkpoint
  • Advertising the roadblock publicly
  • Ensure the field police officer follow a predetermined procedure of stopping vehicles

If any of these requirements are not met, your attorney can successfully challenge your arrest and DUI charges.

Rising Blood Alcohol Content

It is not unlawful to consume alcohol before operating a vehicle. What is unlawful is being impaired at the time you operate the car. When you drink alcohol, your blood alcohol content rises steadily and rapidly till it reaches its peak level. During this time, the BAC is said to be "on the rise," which takes approximately fifty minutes.

So, assuming you had just finished taking alcohol and decided to take a short drive. Then a law enforcement officer arrests you and takes you in for a blood, breath, or urine test. If you had rising BAC during your arrest, the chemical test results are likely to show higher blood alcohol content than the one you had when you were driving.

How to Protect Your Driver's License from Being Revoked

Shortly after being arrested, the arresting police will take your driver's license and issue you a "Notice of Suspension.'' The notice serves as a temporary driver's license for thirty days. Additionally, the notice notifies you that you have a right to a DMV hearing, which should be requested within ten days after your arrest.

Although the DMV hearing is different from the court proceeding, you have a right to be represented by a DUI defense attorney. You are also entitled to analyze any proof presented against you as well as cross-examine any witness testimony. You can present evidence on your behalf or bring witnesses.

After the DMV hearing, you will receive a written decision. If the decision to revoke your driver's license is maintained, you can request the DMV to conduct an administrative analysis of its decision. You are also entitled to appeal that decision with the superior court.

Losing the hearing or failure to request the California DMV hearing on time leads to the revocation of driving privileges.

How to Get a Revoked License Back

If your license was revoked and you want to restore your driving rights, you should take the following steps:

  1. Understand your situation's details

    The first requirement to reinstate the driver's license depends on why it was revoked in the first place. Contact the Department of Motor Vehicles, request them to review your case, and learn what you should do. When making this call, make sure you have your previous driver's license number and all details the California DMV sent you.

  2. Fulfill all Revocation Requirements

    You could be required to pay fines and fees that include court-related fees and other penalties enacted by the DMV. You are also supposed to complete your sentence, DUI school as well as present documents that you did so.

    Moreover, you will be obligated to present proof of an SR-22. In most cases, this is proof of vehicle insurance.

  3. Submit Necessary Payments and Documents to DMV

    Once you have completed the above steps, you are in a position to apply for a renewal driver's license. Sometimes if you have completed most of the above requirements, you could get a restricted license if your revocation period has not ended yet.

Can you Erase a Criminal Record if You Have Been Convicted of a Fourth Offense DUI?

Just like any DUI offense in California, a felony DUI can be sealed from your criminal record through an expungement. Since you are convicted of a felony, you need first to petition the court to reduce the felony to a misdemeanor.

The next step is filing an expungement petition with the court. However, there are strict guidelines on eligibility for an expungement. You can make your application either in person or through your lawyer. Then the judge could either:

  • Allow you to withdraw your guilty plea and enter an "innocence plea” or
  • Set aside the guilty verdict if you had been convicted after an "innocence plea.”

In both cases, the judge will dismiss the charges against you. Then you will be relieved from all consequences resulting from the crime.

Find an Experienced DUI Defense Attorney Near Me

With so much at stake for a 4th DUI offense, you should hire a competent Los Angeles DUI defense attorney like Leah Legal to represent you. Our attorneys will review the evidence being used against you to make sure your rights are protected. Call our Van Nuys DUI lawyer today at 818-484-1100.