A DUI conviction comes with harsh penalties.  The penalties are even stricter when there are aggravating factors surrounding your case. For instance, you may not have to spend time in jail if it is your first DUI offense, and there are no aggravating factors in your case. However, if aggravating factors are present, it may be hard to avoid jail since the sentence is mandatory.

If you have aggravating circumstances in your DUI case, you should hire yourself a competent DUI defense attorney to represent you. The attorney may be able to fight to have whatever aggravating factor surrounding your case stroke off so that you have lenient penalties. At San Jose DUI Attorney Law Firm, we provide legal representation to clients in San Jose who need to defend against their aggravated DUI cases. Our lawyers fight aggressively to ensure our clients have the best possible outcome of their case. In this article, we look at the aggravating factors that can lead to enhanced, severe penalties.

What is Aggravated DUI?

If you have been charged with DUI, you probably may hear the prosecuting attorney allege that your case has aggravating factors. In case you are unfamiliar with these words, you wouldn’t know how the elements will impact your case. Aggravating factors, according to criminal law, refer to specific facts that when present in your case, it would mean that the offense was more severe than the standard offense. Therefore, you may be subjected to additional punishment for the offense with which you are charged. In other cases, you may face felony charges instead of misdemeanor charges because of aggravating factors.

Examples of aggravating factors that could lead to aggravated DUI charges include:

  • DUI on a suspended or revoked license
  • DUI over the speed limit/ reckless driving
  • DUI with a minor
  • DUI with a BAC of 0.15% or more
  • DUI hit and run
  • Underage DUI
  • DUI while on probation
  • Multiple DUI convictions
  • DUI causing an accident
  • Refusing to submit to chemical testing
  • DUI causing bodily injury or great bodily injury
  • DUI without a license

Let us look at these factors in detail.

DUI with a Minor

DUI laws in California provide for increased punishment for those people who drive while intoxicated with a minor that is under 14 years in the vehicle (VC 23572). This offense can also be charged otherwise as child endangerment under PC 273a. The sentence increment set forth for DUI with a minor includes an additional and mandatory jail sentence. This implies that in case you are sentenced for DUI with a minor passenger in your car, there’s no way you can avoid jail time.

The additional jail sentence for drunk-driving with a child passenger in the vehicle as per VC 23572 is as follows:

  • If it is your first DUI offense and you had a minor in the car, you will get an additional 48 hours of a jail sentence to add on the standard penalties for a first DUI offense.
  • Second-time DUI offenders will get an additional ten days of a jail sentence.
  • For a third DUI offense, you will get thirty days of jail time
  • If it is a fourth misdemeanor DUI offense, the punishment will be an additional ninety days of a jail sentence. If it is a felony, VC 23572 sentence enhancement for drunk-driving with a minor passenger won’t apply.

DUI with a minor is a straightforward offense. If sentenced to a misdemeanor DUI and a child under 14 years was in your car at the time of the arrest, then the sentence enhancement is applied. Factors like your extent of intoxication, whether you had the intent to injure the minor, or your driving pattern, do not count. For you to be charged with this offense, the prosecutor only needs to prove two points:

  • You were operating the car while intoxicated
  • There was a minor below the age of 14 years in the vehicle when you drove

Note that penalty increment for drunk-driving with a child passenger in the car only applies when you’ve been convicted of VC 23152a or VC 23152b. If your lawyer can successfully defend against your drunk-driving case, the judge cannot impose the increased punishment for DUI with a minor passenger. Therefore, VC 23572 charges will not be applied.

Furthermore, even if the attorney cannot secure you a dismissal through DUI defenses, he/she may get you a plea deal to reduced charges. This will also prevent the sentence increment for drunk-driving with a child passenger. For instance, if you are convicted of a wet or dry reckless charge instead of DUI, VC 23572 will no longer apply.

PC 273a, child endangerment statute, is a distinct offense that can be charged as a felony or a misdemeanor. Child endangerment statute penalizes any person who willfully places a minor in a condition where their welfare or health can be endangered. Courts in California have found DUI with a minor to fall into this category. Therefore, if you are caught drunk-driving and there is a minor in the vehicle, a prosecutor can choose to charge you with:

  • VC 23572 DUI penalty enhancement
  • The distinct offense of child endangerment under PC 273a
  • Both VC 23572 and PC 273a

However, you can’t be sentenced for both VC 23572 and PC 273a. Courts are forbidden from imposing VC 23572 sentence enhancement on individuals that are also guilty of PC 273a. However, you can be sentenced for ordinary DUI (minus the child in the vehicle penalty enhancement) and PC 273a child endangerment.

Note that a prosecutor may charge you with child endangerment irrespective of:

  • The minor’s age (anyone below the age of 18 counts)
  • Whether your DUI offense is charged as a felony or a misdemeanor

Refusing to Take a Chemical Test

By holding a driver’s license in California, it is assumed that you have consented to chemical testing any time you get legally arrested for drunk-driving. This is referred to as the implied consent law. Unfortunately, most of the motorists are not aware of this law. However, despite this law, an arrested person still has a right to refuse to submit to chemical testing.

While refusing seems like the right step to take, you could be penalized for that. Refusing to agree to a breath, blood, or urine test after a legal arrest may result in 48 hours of jail time to add on your original DUI sentence. You may also be sentenced to a mandatory nine-month alcohol program. Additionally, the California DMV may suspend your privilege to drive for at least a year. In case you decide to refuse chemical testing after being arrested, then we recommend that you have a skilled DUI defense lawyer to defend your decision.

DUI with a BAC of 0.15% or more

Typically, the higher the quantity of alcohol you drink, the more you become impaired to drive. If your BAC at the time you are pulled over is .08%, then you will be arrested for DUI and be subjected to the standard DUI penalties. However, in case your BAC is over .15%, which is way above the standard legal limit, then you will receive a harsher punishment. This applies even if it is your first drunk-driving arrest. The enhanced penalties include a mandatory ignition interlock device (IID) installation and compulsory jail time to add on your DUI sentence. You may also be ordered to enroll in an alcohol program or AA meetings for nine months.

DUI Over The Speed Limit/Reckless Driving

VC 23582, DUI over the speed limit, is a sentencing enhancement statute for people arrested for DUI. It adds not less than sixty days of a jail sentence for drunk-driving when you get convicted of VC 23152a, VC 23152b, or VC 23153. You will also get this sentence enhancement if, during your drunk-driving crime, you drove over the stipulated speed limit by 30mph on a freeway or 20mph on a highway or street. Also, if during your DUI, you drove in a careless manner that would put you and the public in danger, you will receive a sentence enhancement.

For you to receive a penalty enhancement for driving over the speed limit or reckless driving, the prosecutor has to prove the following beyond a reasonable doubt:

  • You drove while intoxicated
  • You drove at excessive speed during the drunk-driving offense
  • You drove carelessly while drunk

 Note that the sixty days jail sentence is mandatory. Therefore even if the judge suspended the execution of sentence or grants probation, you must serve the sixty days sentence plus any other sentence the court imposes.

Additionally, if it’s your first VC 23582 conviction, you will be required to attend a mandatory alcohol/ drug education or counseling program.

In complicated cases, a skilled DUI attorney can still manage to negotiate a plea deal with your DUI charges. VC 23582 driving over the speed limit/reckless driving sentence enhancement doesn’t apply to lowered charges like wet reckless, an exhibition of speed, or dry reckless.

DUI Causing an Accident

In case the facts of your case indicate that you caused a crash while driving while intoxicated, the prosecuting attorney may charge the case differently. This depends on the jurisdiction in which you are being charged. If you caused an accident, you might receive severe penalties compared to being charged with ordinary DUI. Note that even if the accident did not lead to an injury, a judge might view it as a ground to enhance your sentence. Therefore, we advise that if you are in this situation, you should contact an experienced attorney who understands how the jurisdiction in which you are operates. The attorney may be able to argue the case and get rid of the aggravating factor so that you receive lenient penalties.

DUI Resulting in Bodily Injury/Great Bodily Injury

Generally, judges treat drunk-driving cases in which someone else gets harmed as the most severe aggravating factor. The prosecuting attorney can charge DUI causing bodily injury either as a felony or a misdemeanor. The choice to charge you with a felony or a misdemeanor is based on how severe the harm was.

If you caused a crash and someone else got injured, you may get an additional and mandatory five days of a jail sentence. Your license may also be suspended for one year. If the injury to that other individual were severe, the enhanced punishment you will face would be more severe. You will most probably face felony charges if the victim sustained great bodily injury. If sentenced to a felony DUI causing severe physical injury, as an aggravating factor, you may be sentenced to up to sixteen months in county jail.

DUI While on Probation

If you get convicted of an offense and the court imposes a probation sentence, California PC 1203 provides that you being released depend on specific terms & conditions. Violating these conditions may lead to an arrest. A probation violation hearing is then held, where the court determines whether or not you violated your terms of probation.

If you committed a new offense, for example, DUI, you will be said to have violated your terms of probation. Under PC 1203.3, the judge has the jurisdiction to impose legal consequences, which include:

  • Revoke the probation terms and impose the original sentence of the crime you committed as provided by the law.
  • Revoke & reinstate probation terms, then impose a county jail sentence
  • Extend the probation period
  • Impose additional conditions of probation
  • Order counseling
  • Order a treatment program for substance abuse

If you commit a drunk-driving offense when you are on probation, your offense may subject you to any of the above consequences depending on:

  • The severity of the probation
  • You record of prior probation violations
  • Your criminal history
  • The judge’s discretion

If you already got a DUI conviction that has a probation sentence3 and you commit a second drunk-driving offense, you will be violating California VC 23154. This statute describes this offense as driving with a BAC of 0.01% or more while on probation. By drunk-driving while on probation, you will also have violated VC 23600, failure to meet probation conditions.

Violating these vehicle codes can have you face severe consequences. VC 23600 provides that one of the probation terms is not to operate a car with a measurable alcohol amount in your bloodstream. One main stipulation of VC 23600 is: your BAC can’t be more than 0.4%. If it is while sentenced to probation for a first drunk-driving offense, then the judge will terminate the probation sentence and impose second probation. The new probation may prolong the terms & conditions of your sentence by a maximum of five additional years. Also, you may be sentenced to a mandatory 48 hours in jail.

DUI on probation may also lead to an automatic suspension of your license for a year by the DMV. However, you can fight this suspension by requesting a DMV administrative hearing within ten days of being arrested. Attorneys at San Jose DUI Attorney Law Firm will help you demand this hearing and represent you in fighting to prevent the suspension. Also, the attorneys may help you to fight to renew the original probation terms and conditions and avoid additional punishments.

DUI Hit and Run

Any time you get involved in an accident with another driver, the law provides that you remain at the scene of the crash. While at the scene, you can exchange contact details with the driver/drivers involved as well as help anyone who was harmed or killed. Failure to remain at the scene puts you at risk of facing severe consequences. The repercussions get even worse if you were driving while intoxicated. If you were under the influence, you would most likely be charged with two offenses. That is, DUI or a hit & run offense. Or, you may receive a sentence enhancement for DUI hit & run. These offenses are already severe when charged separately, but they are more severe when charged together.

Apart from facing the ordinary DUI penalties, being involved in a hit & run while intoxicated may subject you to additional penalties of:

  • Between $1000 and $10000 in fines
  • Two to four years in prison in case the crash resulted in death or severe injury
  • Up to a year in a county jail in the case, the accident led to minor injuries
  • A maximum fine of $1000 or a maximum of six months in jail in case the crash only led to property damage.

Note that you will only face these enhanced penalties if you get convicted. Therefore, it is crucial to have an experienced attorney by your side to help you defend against these charges and have the factors removed from your DUI charges. 

DUI on a Suspended/Revoked License

If you had a revoked or suspended license when you got caught for committing a drunk-driving offense, the prosecutor may add charges of driving on a revoked/suspended license. This is according to California VC 14601.

If your license was suspended because of negligent, incompetent, or reckless driving, you could face at least five days of a county jail sentence plus extensive fines. If you had previously been convicted of VC 14601, driving on a suspended license within the past five years, you would face at least ten days of jail sentence and probation.

If your license was revoked or suspended due to a past DUI conviction, the prosecutor could charge you under VC 14601.2. This means you will be subjected to VC 14601.2 penalties to add on the penalties of your new drunk-driving offense. You can also face a mandatory jail sentence for drunk-driving with a prior as well as a mandatory and consecutive jail sentence for violating VC 14601.2. Also, you may be required to install an Ignition Interlock Device (IID) in your vehicle.

You may also be subjected to an additional and consecutive 180 days of a county jail sentence and court fines if you are caught drunk-driving on a suspended license and one of the following is true:

  • You have multiple drunk-driving convictions
  • You have vehicular manslaughter while intoxicated conviction, or
  • The court declared you a habitual traffic offender

DUI Without a License

In certain cases, you may be subjected to both DUI charges and charges of driving without a license. This happens if you didn’t have a driver’s license with you, or you had an out-of-California license at the time of your DUI arrest.  Drivers from other states are permitted to drive in the state of California using their foreign licenses. However, California residents are required to acquire a valid California driver’s license for them to be allowed to drive. If the arresting officer has reason to believe that you are a California resident holding an out-of-state driver’s license, you may also be charged with driving without a license. Being charged with driving without a license can lead to additional punishment in court.

Multiple DUI Convictions

In case you have previously been convicted of DUI, you may get additional punishment if you are rearrested of another DUI offense within five years. Additionally, if you are convicted of three misdemeanor DUI offenses within five years, the fourth offense within the five years will be charged as a felony, which has harsher penalties. The additional penalties depend on the judge’s discretion and the facts of your case. Generally, the consequences include increased fines, jail sentences, IID installation, and license.

Being Under 21 at the Time of Your DUI offense

The accepted alcohol-consumption age in California is 21 years. Therefore, if you are arrested for DUI and you are under 21, you may face severe consequences. The penalties for this offense include license suspension for a year. In addition to DUI charges, you may also face charges of underage drinking.

Find a DUI Defense Attorney Near Me

In any drunk-driving case, the circumstances surrounding the incident are what determine the penalty you receive. Fortunately, every DUI case can be defended against, even the one that seems to be surrounded by harsh facts. All you need to do is hire an experienced DUI defense lawyer who understands the law and is ready to fight for you. Attorneys at San Jose DUI Attorney Law Firm are prepared to help you get the best possible outcome for your case. They will use the resources and the time they have to evaluate your situation and approach it with a strong defense strategy. If you are facing aggravated DUI charges in San Jose, call us at 408-777-6630. We know how aggravated DUI can affect your life and will fight to have any factor that could lead to enhanced penalties removed from your case.