23540 (a) If a person is convicted of a violation of Section 23152 [DUI] and the offense occurred within 10 years of a separate violation of Section 23103, as specified in Section 23103.5 [“Wet” Reckless Driving], 23152 [DUI], or 23153 [DUI Causing Injury], that resulted in a conviction, that person shall be punished by imprisonment in the county jail for not less than 90 days nor more than one year and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000). The person’s privilege to operate a motor vehicle shall be suspended by the department pursuant to paragraph (3) of subdivision (a) of Section 13352. The court shall require the person to surrender the driver’s license to the court in accordance with Section 13550.
VC 23540 is part of California’s complicated “extra penalties” for repeat offenders. It basically says that if you are convicted of a DUI, and you already have a prior DUI on your record in the last 10 years, the penalties for the new conviction will be worse.
For the purposes of this law, all of the following count as a “prior DUI”:
- Any DUI in the last 10 years
- Any reckless driving conviction that was “bargained down” from a DUI charge in the last 10 years
- Any variants on DUI such as DUI Causing Injury in the last 10 years.
Although often referred to as the “second DUI” law, this also applies for a third or subsequent DUI within a 10 year period.
Consequences of a Repeat DUI under VC 23540
VC 23540 spells out the extra penalties you face. These are:
- 90 days to one year in jail (compared with just two days to six months for a first time DUI)
- A fine of $390-1,000 plus fees (same as a first time DUI)
- License suspension (which is longer than a first time DUI)
But this is where things get tricky. The penalties listed in VC 23540 assume that you are not given probation. This is rare in a DUI case.
In practice, even as a repeat offender you will likely be granted probation. This will change your sentence to:
- 96 hours (four days) in jail, up to one year max, for a second offense
- 120 days to one year in jail for a third offense
- 180 days to one year in jail, or up to 16 months in state prison, for a third offense
In most cases it’s better to be given probation and a shorter jail sentence, rather than the full penalty listed under VC 23540. You can read more about penalties for repeat offenders here.
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