Second DUI Strike, Explained by an Attorney with a Police Background

Today, we explain the seriousness of repeat DUI offenses and the so-called 'DUI second strike out' system, which imposes enhanced punishment for repeat offenses, based on the current law.

01What Is the DUI Second Strike Out System

The 'DUI second strike out' is not a formal legal term but an expression referring to the enhanced punishment provisions that may apply when a person with a prior record of drunk driving or refusal of a breathalyzer test commits a related violation again.

It does not apply simply because someone is caught for a second time. It applies where a person, having been sentenced to a fine or heavier punishment for violating Article 44 of the Road Traffic Act (drunk driving, refusal of a breathalyzer test, or obstruction of a breathalyzer test) and having had that sentence become final, again violates the same article within 10 years from the date the sentence became final. This includes cases where the sentence has since become void.

02Why the System Was Amended in 2023

Under the former provision, any second or subsequent violation of the DUI-related prohibitions was uniformly subject to enhanced punishment, without any time limit on the prior offense. The Constitutional Court held that this provision violated the principle of proportionality between responsibility and punishment and ruled it unconstitutional.

The amended provision reflecting this decision took effect on April 4, 2023. It now uses the finality of the prior punishment and the 10-year period as the criteria, and differentiates the statutory penalty according to the type of conduct and blood alcohol concentration at the time of the repeat offense.

03Current Standards for Enhanced Punishment of Repeat Offenses

A repeat offense of refusing or obstructing a breathalyzer test may be punished by imprisonment for 1 to 6 years or a fine of 5 million to 30 million KRW.

If the blood alcohol concentration at the time of the repeat offense is 0.2% or higher, the applicable punishment is imprisonment for 2 to 6 years or a fine of 10 million to 30 million KRW.

If the blood alcohol concentration at the time of the repeat offense is 0.03% or higher but less than 0.2%, the applicable punishment is imprisonment for 1 to 5 years or a fine of 5 million to 20 million KRW.

Note that while the punishment provisions for first-time offenses are divided into three brackets—0.03% or higher but less than 0.08%, 0.08% or higher but less than 0.2%, and 0.2% or higher—the current enhanced punishment provision for repeat offenses treats 0.03% or higher but less than 0.2% as a single bracket.

04Does a Repeat Offense Always Mean Actual Imprisonment

Because the enhanced punishment provision for repeat offenses still provides for a fine as an alternative penalty, actual imprisonment is not automatically imposed merely because it is a repeat offense. Conversely, having received a fine in the past does not guarantee that the outcome this time will also be a fine.

The actual disposition and sentence are determined by comprehensively considering the blood alcohol concentration, the number and timing of past punishments, the distance driven, whether an accident occurred, personal and property damage, the measurement process, actions taken after the offense, and efforts to prevent recurrence. Because the statutory minimum has been raised, it is important to accurately organize the specific circumstances from an early stage.

05Initial Issues Reviewed by an Attorney with a Police Background

First, it must be confirmed whether the period between the date the prior sentence became final and the date of this violation is within 10 years. Next, objective materials should be examined, including the fact and distance of driving, the time of the last drink, the time and procedure of the breathalyzer test, the possibility of changes in blood alcohol concentration, whether an accident or damage occurred, and any scene footage or witnesses.

Before the police investigation, one should not fabricate explanations that differ from the facts or delete relevant materials. It is important to preserve materials that can confirm the circumstances at the time—such as dashcam footage, CCTV, payment records, call and messenger records, and designated driver service call logs—and to organize the facts in chronological order.

06How LAWFIRM LEAP Can Help

LAWFIRM LEAP, drawing on experience at major law firms and in police practice, reviews the enforcement and investigation procedures, the evidentiary relationships, and circumstances that may be reflected in sentencing. It is important to accurately identify even the unfavorable aspects of the case before establishing a direction for responding to the investigation and submitting the necessary materials.

※ This article is intended to provide general legal information and does not guarantee the outcome of any individual case. The applicable law and appropriate response may vary depending on the timing of the violation and the specific facts, so please consult an attorney regarding your individual matter.