A 3rd offense DUI can significantly affect your future and privileges. You could receive minimal penalties if convicted of a first or even second DUI offense. But with a 3rd offense, expect the prosecutor to treat your case seriously. Without legal assistance, a third offense DUI can easily lead to long-term driving license suspension, jail time, and hefty fines.
At Los Angeles Criminal Lawyer, we could help you avoid these harsh punishments. Our lawyers have extensive experience to help come up with solid defenses that could help achieve the most favorable outcome for your case. Reach out to us as soon as you face arrest, and we will do our best to fight for your rights.
Defining a 3rd DUI Offense
In California, a DUI crime is categorized as a 3rd offense if you have two past DUI convictions within ten years. That is, within ten years, you have been convicted of DUI twice and are now facing another charge.
Elements of the Crime
Before the judge can convict you of a 3rd DUI offense, the prosecutor must prove that you’re guilty. He/she must substantiate various facts that constitute the offense. These facts are known as the elements of the crime. They include:
You Were Operating a Vehicle Under Influence of Drugs or Alcohol
Apart from just driving, there has to be evidence that you drove under the influence. The simplest way to demonstrate this fact is for the prosecution to present the test results of the field sobriety tests (FSTs) the arresting officer administered after pulling you over for suspected DUI.
While it may be simple to prove intoxication, proving driving may not be as easy. Sometimes direct observation won’t tell that a person was driving. If the arresting officer wasn’t able to prove you were driving by observation, the prosecutor might use circumstantial evidence to demonstrate this fact. Circumstantial proof includes:
- The location of the car keys. Were they in the trunk, your hand, or the driver’s seat?
- Where you were seated in the car at the time of the arrest, was it in the driver’s seat?
- How warm was the engine at the time of your arrest? If the car engine was warm, it shows that you had been driving.
- Were there other people in the car? If you were the only person in the vehicle, the chances you were driving would be high.
You Had a Blood Alcohol Content (BAC) of 0.08%, or You Were Impaired
The legal BAC limit in California is 0.08%. This means that if the prosecution shows you had a BAC level of 0.08% or higher at the time of driving, you may be convicted of DUI. But still, you could be convicted of DUI even if your BAC is below 0.08%. This will happen if the prosecution shows that your driving abilities were impaired even though your BAC was lower than 0.08%. That is, you weren’t driving as a sober person would do under the same circumstances.
Note that the 0.08% BAC limit applies to adult non-commercial drivers. The BAC limit is 0.04% for commercial adult drivers, while the BAC for under 21 drivers is 0.05%.
Consequences of a 3rd DUI Offense
DUI is categorized as a priorable offense. This means its punishments increase with every successive wet reckless or DUI conviction that occurs within ten years. This is to say that a third drunk-driving conviction within ten years carries more severe consequences compared to a second- or first-time conviction.
Additionally, there are no formal penalties for most offenses unless you are found guilty of the crime (either by being found guilty at trial or entering a plea). But with DUI, it is different. The penalties are categorized into two as follows:
When you are legally arrested for DUI, you undergo two distinct legal proceedings— an administrative process at the DMV (Department of Motor Vehicles) and a criminal court process. Under the administrative process, you’re required to request an administrative hearing within ten days of your arrest.
The purpose of this hearing is to determine whether your driving privilege should be suspended or not. You are supposed to argue a defense as to why you think your license shouldn’t be suspended. If you lose at the hearing or fail to request it, you will face administrative penalties, including license suspension and sometimes fees.
Note that the DMV won’t send you to jail or impose fines, but they can suspend your license. Also, the DMV penalties will be imposed irrespective of whether the court ultimately finds you guilty or not.
The administrative license suspension period for a 3rd DUI offense is a year. The period would go up to three years should you refuse to undergo chemical testing to violate the state’s implied consent law.
3rd offense DUI is prosecuted as a misdemeanor. If, after undergoing the criminal process, the court finds you guilty, you will be subject to the following punishments:
- Informal probation for a period ranging between three and five years
- Approximately $2500 in penalty assessments and fines
- You may face designation as an HTO (habitual traffic offender) by the DMV
- At least 120 days to up to a year in jail
- Completion of a thirty-month court-approved DUI school program
- IID (ignition interlock device) installation for two years, which will enable you to drive to and from school and workplaces
- License suspension for three years
Note that the criminal and administrative license suspension period can overlap so that the total suspension time doesn’t go beyond three years. You may convert the three years to a restricted license after 18 months. However, you can apply for a restricted driving privilege right away, provided you have installed an ignition interlock device (IID) in your car and agreed to chemical testing. However, there is a twelve-month waiting period to obtain a restricted license for 3rd DUI offenses that involve only drugs. With a restricted driving privilege, you can drive anywhere provided it is in an auto that’s installed with an ignition interlock device.
Unfortunately, if you’ve been charged with a 3rd-time offense DUI and refused to undergo chemical testing, you’ll face harsher punishment. Your license will be suspended/revoked for three years, and you won’t have the right to apply for a restricted driving privilege during this period.
Note that every third offender must install an IID in their car for at least two years, whether it’s due to the restricted license requirement or after early license reinstatement. Your lawyer may be capable of negotiating alternative penalties like house arrest or community service.
Significantly, when a judge sentences you to probation for DUI, the following terms and conditions are included:
- You shan’t operate a vehicle with any detectable alcohol amount in your bloodstream.
- You shan’t decline to undergo chemical testing of your breath, blood, or, rarely, urine if you’re placed under arrest for a subsequent drunk- or drugged-driving
- You shan’t commit any further crimes.
Additionally, based on the facts surrounding your case, these probation conditions may also apply:
- Restitution (if you caused a crash during the commission of your DUI offense)
- Attendance in NA (Narcotics Anonymous) or AA (Alcoholics Anonymous) meetings
- Participating in the MADD (Mothers Against Drunk Driving) Victim Impact Panel
Expunging a Third DUI Offense Conviction
Luckily, a third DUI offense conviction record can be deleted from your criminal conviction record by requesting an expungement. You might be capable of expunging your 3RD DUI offense conviction record if your sentence was probation term and successfully served it.
You commence the DUI expungement process by filing a petition in court. The judge then reviews the petition and either grants or dismisses it. If he/she grants your request, you will withdraw your no contest or guilty plea and instead plead not guilty. After you enter a not guilty plea, the case will be dismissed and your conviction record expunged.
Aggravating Factors That May Enhance the Typical Sentence for a 3rd Offense DUI
Certain circumstances, if present in your 3rd offense DUI case, may increase your jail sentence. Common ones include:
- Causing a crash
- Declining to undergo chemical testing
- Having a BAC level of .15% or more
- Having a minor below 14 years in the vehicle (also referred to as a child endangerment offense prosecuted under PC 273a)
- Driving at excessive speeds
- Being underage (below 21 years old) when you committed the DUI offense
What kind of increased sentence you face for the above aggravating circumstances largely depends on your criminal record (the focus being your past DUI history) and the precise facts surrounding your case. Two previous DUI convictions combined with any of the aggravating factors mentioned above will make your odds of avoiding jail time very slim.
How a DUI Defense Lawyer Will Help You Fight a 3rd Time DUI Offense
A third offense DUI charge is beatable. When you retain the right DUI defense attorney, there’s often a high chance that they will emerge from the court process with an acquittal or dismissal.
However, for a lawyer to help you beat the charges against you, you have to retain them soon after you’re arrested so they can have ample time to look over the case. So much is involved when building an effective DUI defense, and part of it may have to be handled within just hours after arrest. The need to retain a DUI criminal defense attorney to challenge the charges against you is so he/she can help you with the following aspects:
An experienced defense lawyer knows how to build a solid defense through gathering evidence. This involves subpoenaing eyewitnesses that may testify in your favor. It might also involve obtaining further discovery in your case, like any video/audio recordings surrounding the drunk-driving investigation. For instance, suppose an arresting officer stated that they pulled you over because they saw you speaking on the mobile phone when driving. But upon going through your phone records, they prove otherwise since they show no activity at the precise time. In this case, this discovery could play a critical role in weakening the prosecution’s case.
Whereas it’s critical to have an experienced DUI lawyer gather and interpret the proof in your case, a competent lawyer would also be capable of using the evidence as a basis for filing motions that will weaken the prosecution’s case. The various motions include a Pitchess Motion and a Motion to suppress proof. These motions may be brought before the court and heard before trial. Together, they might force the prosecution to hand you the best possible deal or make the jury give a not guilty verdict if your case goes to trial.
Obtaining a Favourable Plea Deal
Another reason to hire skilled legal counsel is that they may be capable of negotiating a plea deal that’s in your favor. Given that most DUI cases don’t proceed to trial, it is just as critical to have an expert trial lawyer to have a defense lawyer who knows how to negotiate with the prosecuting attorney. The negotiations may lead to your 3rd DUI charges being reduced to a lesser crime such as exhibition of speed, wet reckless, or dry reckless. At times, your charges may be dismissed altogether.
Arguing Legal Defenses Should Your Case Go to Trial
If plea negotiations don’t go through and your case proceeds to trial, you could still win. There are several legal defenses you can argue to obtain a not guilty verdict. However, you will need a lawyer to help you since they are more experienced, conversant with the court process, and have interacted with the judges and prosecutors; thus, they know their line of questioning. The various defenses your lawyer can argue are:
The Arresting Officer Did Not Follow the Right Procedures
Failure of the law enforcement officer to follow proper procedures is a strong defense against your 3rd offense DUI charge. A DUI investigation ought to be guided by rules to protect you from police misconduct. They include:
- The requirement that the arresting officer has probable cause to pull you over, investigate, and arrest you for DUI
- The requirement that the police read you your Miranda rights before a DUI interrogation
- Title 17 regulations and procedure
If any of the above rules is violated, your attorney will file a motion to suppress, which serves to:
- Exclude any proof that was not obtained properly.
- Give your attorney a pretrial chance to poke holes in the prosecutor’s case and perhaps convince them to reduce or dismiss the DUI charges against you.
FSTs Do Not Accurately Gauge Impairment
If the prosecutor’s proof includes the FSTs results, your lawyer may be capable of challenging the results. Usually, the prosecution team (arresting officer, prosecutor, and DUI experts) heavily rely on the FSTs. DUI experts virtually always attest that you poorly-performed on the tests. Consequently, they deduce that you are guilty of DUI.
Your attorney may successfully explain how coordination and balance during FSTs could be affected by fatigue, nerves, your clothing, your natural body coordination, flat feet, etc. The lawyer may also question the reliability of these tests. Per the NHTSA, FSTs are 91% accurate, and this percentage assumes that:
- The conditions under which the test took place are perfect.
- The arresting officer giving the tests is properly trained and experienced.
- The tests given are the three standardized FSTs— the one-leg stand test, walk-and-turn test, and Horizontal Nystagmus test.
In the real sense, the factors can vary significantly, making the unreliability of the test results a valid legal defense for your 3rd DUI charge.
Mouth Alcohol Resulted in Falsely High BAC Results
Falsely high blood alcohol content result is another defense to a 3rd offense drunk-driving charge, especially if you’re being accused of driving with a .08% or more BAC. Before administering a breath test, the arresting officer has to observe you continuously for 15 minutes. This ensures that you don’t place anything that contains alcohol in your mouth during this period, such as drinks, mouthwash or mouth spray, or medications like cough syrup or homeopathic medicines.
The officer also has to ensure that you don’t regurgitate, burp, or belch since doing so may bring stomach alcohol to your mouth. This occurrence results in residual mouth alcohol, and it forms a valid defense to a 3rd offense drunk-driving charge.
The accuracy level of breathalyzers relies on measuring deep lung air. However, when you blow into a breathalyzer, and there’s alcohol in your mouth, the alcohol will mix with deep lung air, causing your BAC level to be falsely high.
Find a Reputable Los Angeles DUI Lawyer Near Me
A 3rd DUI offense indeed carries potentially severe penalties than a second and first offense DUI. However, this doesn’t mean that you should panic if charged. Like any other crime, you are allowed a chance to defend yourself. And who knows, you may be innocent since mistakes happen all the time during arrests.
You need to hire a lawyer to help you fight the DUI case against you. If you’re facing charges in Los Angeles, CA, reach out to Los Angeles Criminal Lawyer. We offer expert legal representation and advice throughout the case. Call us at 310-502-1314 today for a cost-free consultation. We will review your DUI case and discuss the ideal defense strategy with you.