After your first California DUI, probably you swore to the judge you will never repeat the offense, and you meant it at the time. Appearing in court again for a 2nd DUI can be humiliating. However, you should know you are not alone because many 1st DUI offenders end up with a second arrest. Unfortunately, 2nd-time offenders are subjected to enhanced penalties because drunk driving is a priorable offense. Furthermore, judges take the offense seriously because they assume you have an alcohol or drug abuse problem.
If you have been charged with a 2nd offense DUI, you should consider having an excellent defense team in your corner. A competent and proficient attorney will argue your case to reduce the charges or get the case thrown out. Contact us at the Los Angeles Criminal Lawyer if you want representation from attorneys who understand drunk driving laws and are devoted to representing your best interests.
General View of 2nd Offense DUI
California VC Sec 23152(a) establishes a breach of the law for a person to operate an automobile while drunk or drugged. This Sec is more subjective or old-fashioned because it focuses on your inability to drive safely, regardless of the BAC test results. Cal VC 23152(b), on the other hand, establishes that it is illegal for a person operating a vehicle to register a BAC of 0.08 percent or greater. Sec b focuses on the amount of alcohol in your body when you are arrested and detained. These laws ensure the safety of all road users, but despite this, they can subject you to severe consequences upon violation.
It’s worth noting that you face charges for a second offense DUI if it is your second time to be arrested within ten years. The prior offense can be in California or out of state. In specific scenarios where you have a 1st DUI conviction on your record but from over ten years, a subsequent offense will not count as a 2nd DUI as per this statute. However, this should not mean that the court will treat you as a first time offender. The judge will learn about your prior conviction, although it’s not within the lookback period, affecting your current case.
As stated earlier, authorities, including judges and prosecutors, take second time DUI cases strictly because it is an indicator of a baseline drug or drinking problem. Therefore, you might be subject to additional consequences as the judge tries to balance the consequences for a violation of the law and providing drug or alcohol treatment.
Some people might think that operating a motor car while intoxicated by prescription or OTC drugs will not count as a DUI. However, it is untrue because the definition of DUI under Sec (a) includes prescription and over the counter drugs if they cause any form of impairment that might hinder your ability to drive safely. Some of the drugs that may impair your ability to drive safely include:
- Cold or allergy pills
- Pain tablets
- Anti-anxiety prescriptions
A general rule of thumb is to avoid driving at any cost if you are under medications that you don’t know its side effects. All medicines have side effects, and some like dizziness or drowsiness, can hamper your ability to drive. Make sure you understand how a particular drug you are using affects you because a simple mistake of not knowing the side effects of the drug can result in a 2nd offense DUI.
The Preliminary Hearing
The initial proceedings or hearing for a second offense DUI is similar to that of a first DUI. And because many DUI offenses are deemed misdemeanors, you will be held for a few hours and then released. However, before securing a release, you will be issued a citation to show up in court at the scheduled court date. Additionally, they will confiscate your driver’s license and give you a temporary one. They will send the driver’s license via mail to the DMV. Note that if the DUI offense is a felony, you will need to post bail before release.
You have ten days, including public holidays and weekends, after issuing the order to suspend your driving privileges, to request a DMV hearing if you want to retain your license. Failure to do so within the ten days will result in forfeiture of your DMV hearing rights. Your driver’s license will be automatically going on suspension after 30 days. Consider enlisting the services of a criminal defense lawyer experienced in DUI cases because not only will they schedule a hearing on time, but also influence the decision of the DMV officer presiding over your case.
Having a lawyer by your side is not only about retaining your driver’s license. The proceeding will enable the lawyer to gather crucial evidence about your case from the time you were arrested and detained. This information will be used to challenge the charges you are facing in a criminal court.
Similarly, you should note that DMV proceedings only occur in DUI cases involving alcohol. For DUI involving drugs, it must be tried in court, and upon conviction, suspension of your driver’s license will occur.
Once the DMV withholds your driving privileges, you will get a restricted license that allows you to drive to limited areas like court or any alcohol program imposed by a DMV officer. You can apply for the restricted license right away with a lawyer because driving on a suspended license is a severe criminal offense that can lead to severe consequences.
Second Offense DUI Deal or No Deal
Before the criminal court proceedings commence, the prosecutor might offer you something known as a plea deal. The majority of prosecutors offer the agreement because, in the end, you will get a guilty verdict, which is all they want.
Under this deal, you are required to take a guilty plea in exchange for a lesser charge or lenient sentence. These deals often seem attractive at first, considering you have little hope of winning the case.
However, you can opt for no-deal if your lawyer believes you have strong evidence to contest the charges. If, after evaluation of the evidence, it appears that the case is weak, the lawyer will advise you to accept the deal because it will be in your best interest.
Keep in mind that if the prosecuting team is offering a deal, it might be a sign they might not secure a conviction due to insufficient or weak evidence. Retaining the services of a proficient DUI lawyer will be useful in situations like this because they will evaluate the case and advise you on whether to accept the deal or proceed to trial.
If you take the prosecuting team’s offer, you will begin serving your sentence right away. Suppose you turn down the deal; the case will proceed to trial where the prosecuting group must prove beyond reasonable certainty that you drove a car while under the influence of drugs or alcoholic beverages. The elements the prosecutor must prove are:
- You were intoxicated by alcohol or drugs
- The blood alcohol concentration in your bloodstream was .08 percent or more
- You were addicted to drugs or alcohol at the time of driving
Additionally, the prosecutor will need to provide evidence from your first offense DUI to demonstrate to the court that the current offense is the second one.
The Sentencing of a Second Time California DUI
One of the questions that will linger in your mind during sentencing for this offense is how the court or administrative consequences differ from your first offense DUI. The answer to the question is not definite because case facts determine the sentence to be imposed. However, there is a framework that provides an insight into the penalties to expect upon sentencing for a second time drunk or drugged driving charge.
Similarly, despite the second offense being taken more seriously, with the help of a DUI lawyer, you can mount evidence that will influence the judge to give a fair sentence. The penalties for a second offense DUI as per VC 23540 include:
- Between three to five years of a misdemeanor or informal probation
- Jail custody ranging from at least 96 hours to a maximum of twelve months
- Court fines ranging from $390 to $1,000 plus an extra $1,000 penalty assessment fees
- Mandatory completion of a court-approved DUI school program ranging from 18-30 months.
- Installation of an IID for twelve months
- Driver’s license suspension. The license will go on suspension for twenty-four months, although after twelve months of suspension, you are eligible for a restricted license. Alternatively, you can get a restricted license right after suspension but on the condition that you install an IID.
If the court imposes summary probation as an alternative to jail incarceration, you must meet the following conditions:
- You shall not operate a car with any measurable amount of alcohol in your body
- You must not refuse to submit to chemical testing if it’s you second DUI arrest
- You must not engage in any further commission of a crime
Additionally, depending on the nature of your DUI, the court might impose the following probation terms:
- Attendance of AA and NA meetings
- Restitution of victims in case your DUI caused an accident
- Installation of IID on every vehicle that you own for no more than three years
Loss of Driving Privileges in Second Offense DUI
The only body in California with the powers to suspend a driver’s license or issue a restricted license is the DMV. It suspends the license either after losing your DUI case in a criminal court or when you lose or fail to request a DMV hearing within ten days.
For a 2nd offense DUI, the suspension of driving privileges upon conviction in court is twenty-four months. An APS suspension, on the other hand, is 12 months. However, if you agreed to chemical or blood testing, you can apply for a restricted license after the first 90 days.
Unluckily, if you failed to submit to chemical testing after apprehension for a second DUI offense, you will face stricter consequences. You will be subject to a driver’s license revocation for two years without the possibility of getting a restricted license.
Remember, there is no other way around installing an IID. For this reason, right after the imposition of a driver’s license suspension, install an IID so that after the 90 days are over, you can get a restricted license.
Permanent Criminal Record
An expunction can help erase a second offense DUI sentencing from your permanent criminal record. However, the expungement can only occur if you are put in probation and complete the term of probation.
An expunction for a DUI conviction is not different from other expunctions. You need to register a petition with the court for reviewing by a judge. Once the judge has reviewed the petition, you will withdraw the initial plea and enter a not guilty plea, and your case will be dismissed.
Factors that may Enhance your Sentencing
There are specific factors that may result in an enhanced jail or state prison sentence if they are in play or present in your case. These aggravating factors include:
- Having a DUI whose, BAC is .15 percent or greater
- Failing to submit to chemical testing
- DUI causing a collision
- DUI on a suspended driver’s license
- Driving while drunk or drugged with a minor 14 years or younger in the passenger seat
- Driving at excessive speed while drunk or drugged
- Being a minor 21 years or younger during an arrest for drunk driving
Your prior DUIs within ten years and the nature of your arrest will determine the kind of court’s penalties imposed. With a previous DUI and the above aggravating factors in play in your case, you will be subject to severe consequences.
Contesting 2nd Offense DUI Charges
Although a second DUI is embarrassing and daunting, it is still resolvable. If you hire a criminal defense lawyer who understands drinking and driving laws in California, your interests will come first, thus improving the possibility of acquittal or dismissal.
All the same, to be acquitted or get the case dismissed, you should reach out to a DUI lawyer immediately. Most of the evidence used against you for the second offense DUI is gathered within the first few hours after apprehension. A lawyer can help you build a case in the following ways:
Gathering and Evaluating Facts of the Case
If you call an experienced DUI lawyer right after your apprehension, they will know the facts they need to gather and evaluate, and come up with reasonable defenses for the charges. Gathering of evidence includes subpoenaing eyewitnesses and getting the police report containing video and audio recording of the traffic stop that led to the charges.
Suppose the arresting officer claims that the reason for the traffic stop was a missing front license plate. If the video recording of the stop shows the officer never had a glimpse of the front of your car, it will be damaging to the officer’s testimony. The officer’s testimony won’t be credible, which will be advantageous for you and your legal team.
Legal Research and Writing
On top of gathering and interpreting the facts of the case, a proficient DUI lawyer will use the evidence collected to prepare motions that support your case. One of the motions your lawyer can file is a Pitchess Motion if they feel your traffic stop was due to racial profiling. If the arresting officer engaged in any form of misconduct, acted unprofessionally, the court can run background checks on the officer to find any complaints against the officer in the past. You will have a strong argument for case dismissal or acquittal if the officer has prior complaints of misconduct.
If your hope of winning the case is dimmed because of the prosecution’s evidence, then you need to consider hiring an experienced lawyer to avoid trial. The majority of DUI cases don’t end up in a trial. Your lawyer can negotiate a deal with the prosecutor for a lesser sentence, like wet or dry reckless.
Reasonable Defenses for 2nd Offense DUI
Some of the defenses your attorney can mount to fight a 2nd offense DUI include asserting that the arresting officer had no probable cause. The law requires an officer to have a reasonable belief that a crime is being committed before making a traffic stop. If the officer cannot establish probable cause, your lawyer can suppress the evidence through a suppression proceeding.
Suppose your arrest happened at a sobriety DUI checkpoint, you can argue that the field officers at the checkpoint disregarded the regulations that govern the checkpoints. By doing that, you get to challenge the evidence presented by the prosecutor.
Similarly, you could assert that the alcohol was still being absorbed in your bloodstream at the time of arrest, hence the inaccurate BAC test results.
Note that the defense strategies will not apply in all cases. Therefore, you need to speak to an experienced lawyer to analyze the evidence and mount the appropriate defenses.
Find a Los Angeles Criminal Lawyer Near Me
If you have been arrested for a 2nd offense DUI, you should discuss your case with a criminal lawyer that understands California DUI statutes. At the Los Angeles Criminal Lawyer, we will ensure you get thorough and extensive defense to protect your interests. Call us today at 310-502-1314 to arrange a zero-obligation consultation.