If this is your first DUI, the most useful thing to know is that the outcome is not fixed. First-offense cases have more room in them than almost any other charge in the criminal courts, because the penalty range is wide, the evidence is technical, and the sentencing options include several that avoid the worst consequences. What happens depends heavily on what your attorney does in the first few weeks.
Marc Kohnen has handled first-offense DUI cases in every courthouse in San Diego County since 2008. He also has jury-trial not-guilty verdicts on misdemeanor DUI, which matters more than it sounds: the prospect of a defense attorney who actually tries these cases is what moves a prosecutor off a standard offer.
What You Are Charged With
A first DUI is normally filed under two counts of the same statute. Vehicle Code section 23152(a) alleges driving under the influence — that your ability to drive with the caution of a sober person was impaired, whatever the number was. Section 23152(b) alleges driving with a blood alcohol concentration of 0.08 percent or more, which does not require proof of impairment at all.
They are charged together because they fail differently. A chemical test problem can undercut the (b) count while leaving the (a) count alive on the officer's observations, and weak field sobriety performance can undercut (a) while (b) stands on the number. A defense has to address both, and you can only be sentenced on one.
The Actual Penalty Range
Under Vehicle Code section 23536, a first-offense DUI carries a range of 96 hours to six months in county jail — at least 48 hours of which must be served continuously — and a fine of $390 to $1,000. The fine figure is misleading on its own: penalty assessments and court fees typically push the real amount well past $2,000, and that is before the DUI program, the license reissue fee, and the insurance consequences.
In practice, a first offense with no aggravating facts is very rarely resolved with custody. Most are resolved on probation, with the conditions set under Vehicle Code section 23538. Those terms are what actually affect your life:
- Three to five years of probation under Vehicle Code section 23600(b)(1)
- A licensed DUI program — the three-month, thirty-hour program for most first offenses, or the nine-month program where the BAC was 0.20 percent or higher or a refusal was alleged
- Fines, penalty assessments, and court fees
- A six-month license suspension through the court, separate from the DMV's administrative action
- Ignition interlock device requirements, which also govern eligibility for a restricted license
- A Watson advisement — the on-the-record warning that a future DUI causing death may be prosecuted as murder
What Makes a First Offense Worse
Certain facts move a first-offense case out of the routine range and need to be handled deliberately. A BAC of 0.15 percent or higher is treated as an aggravating factor at sentencing, and 0.20 percent or higher triggers the longer alcohol program. A refusal allegation adds mandatory jail time under Vehicle Code section 23577 and a one-year DMV suspension that survives even a favorable outcome in court.
Others include a child under 14 in the vehicle, which exposes you to a sentencing enhancement under Vehicle Code section 23572 and sometimes a separate child endangerment filing; excessive speed; a collision; and a commercial license, where the threshold is 0.04 percent and the career consequences dwarf the criminal ones.
Where First-Offense Cases Are Won
These cases are technical, and the technical detail is where the leverage is. The stop itself has to have a lawful basis, and a stop made on a hunch or on a traffic violation that did not happen is challengeable. Field sobriety tests are standardized exercises with specific administration requirements, and officers do not always follow them; horizontal gaze nystagmus in particular has documented limits that are rarely explained to a jury unless the defense does it.
Breath testing depends on a fifteen-minute observation period, a properly trained operator, and an instrument with current accuracy and calibration records. Blood testing depends on compliance with Title 17 of the California Code of Regulations for the draw, the preservative, the seal, and the storage. Any of these can be requested, examined, and litigated. And because alcohol absorption takes time, a test result obtained an hour after driving does not automatically establish what the BAC was behind the wheel.
Is Diversion Available for a First DUI?
Not through the general misdemeanor diversion statute. Vehicle Code section 23640 bars diversion in DUI cases, and California appellate courts have confirmed that the judicial diversion law enacted in 2021 did not override that bar. Any source telling you a first DUI can simply be diverted under Penal Code section 1001.95 is wrong.
There is a real exception. Current and former members of the military with a service-related condition may qualify for military diversion under Penal Code section 1001.80, which expressly includes misdemeanor DUI and can end the case in a dismissal. If you served, say so at the first meeting — it can change every option on the table.
Why Acting Early Matters
Two clocks start on the day of arrest. The DMV gives you ten days to request an administrative hearing before your license is suspended without one, and evidence — surveillance video, witness memory, instrument records — degrades from the first week. The cases that resolve well are usually the ones where the file was pulled and the requests went out immediately.
If you were arrested for a first DUI anywhere in San Diego County, call (619) 398-2500 for a free, confidential consultation. Marc reviews every case personally and is available 24 hours.
More on DUI & DWI
- DMV Hearings — Ten days to demand a hearing under VC §13558 — or the suspension takes effect without one.
- Felony DUI — Injury, a fourth offense in ten years, or a prior felony DUI — state prison exposure under VC §23153 and §23550.
- Chemical Test Refusal — VC §23612 implied consent — a one-year suspension that outlives a dismissal, and how refusals are challenged.
- DUI of Drugs — No legal limit means the People must prove real impairment — cannabis, prescriptions and the DRE evaluation.
- Underage DUI — Zero tolerance at 0.01% under VC §23136 — a one-year suspension with no conviction required.
Back to the DUI & DWI overview.
Legally reviewed by Marc S. Kohnen, Attorney at Law — State Bar of California #255303, defending San Diego since 2008.
Free, confidential case evaluation — available 24 hours at (619) 398-2500.