It may be embarrassing to find yourself in court for a 2nd DUI case after you swore to the judge during the first offense that it won’t happen again. It’s not only you. Most first time DUI offenders end up being arrested for a second time. While they may only have committed a slight mistake like a judgment error, the judicial system makes it hard on second-time offenders and assume that they have an alcohol or drug problem. This leads to much harsher punishments.
Thus, when facing a 2nd DUI offense, you need to have an experienced attorney to defend you. This is because an attorney who understands the law and is devoted to fighting for your best interests and may be able to have your charges reduced or even dismissed. At Los Angeles Criminal Attorney, we have attorneys who have represented 2nd DUI offenders in Los Angeles successfully. Since they have several years of experience, they fully understand California DUI law, the court processes, and they know what defenses will hold in court.
When Do You Get Charged With a 2nd Offense DUI?
In California, you can be convicted of DUI if you operate a motor vehicle while intoxicated with drugs, alcohol, or a combination of both, or with a BAC of 0.08% or greater. If you are arrested for a second DUI within ten years of your first DUI conviction, you will be charged with a 2nd DUI offense.
When you get detained for a 2nd DUI crime, most of what happened during the 1st offense repeats itself. For instance, you will need to surrender your license and get a temporary one, which will be valid for only thirty days. You also have to demand a DMV hearing within ten days to stop your license from being suspended.
Note that the ten days are inclusive of weekends. If you don’t request the hearing within ten days, you will lose that right, and your license will automatically go into suspension once the 30 days of the temporary license validity end.
It is crucial that you contact an experienced DUI attorney after you request the hearing. Alternatively, you can hire an attorney to request the hearing on your behalf. Remember a DMV hearing is not just about telling the side of your story to a hearing officer. It also gives your attorney an opportunity to note more details concerning your detention and collect more information that may be of help in determining the amount of proof that’s against you.
Penalties for 2nd DUI Offense
Driving under the influence offense is considered a ‘priorable’ offense in California. Priorable offenses are those offenses whose penalties increase for repeat offenders. A California DUI is priorable to up to ten years. This means that after ten years, a second or subsequent DUI will not be charged as a 2nd or subsequent offense. It has to be charged afresh as a 1st offense. Thus, if you are convicted of subsequent DUI within ten years from the previous offense, the punishment will be more severe. On this note, 2nd offense DUI penalties are stricter than those of a first offense.
For you to be convicted of a 2nd DUI offense, the prosecutor has to prove beyond any reasonable doubt that, at the time of the arrest, you were driving and your blood alcohol concentration was 0.08% or more, or you were intoxicated with drugs, alcohol or both.
A second DUI offense carries both administrative and criminal consequences.
Most offenses do not carry any formal consequences unless you are convicted of the crime. With DUIs it is quite different. If you are legally arrested for DUI, you may be subjected to administrative penalties like fees and license suspension, irrespective of whether you will be ultimately convicted in a criminal court.
The administrative penalties are imposed by the California Department of Motor Vehicles (DMV). In case you get arrested for a second DUI offense, the DMV will suspend your driver’s license for a year. Moreover, if you decline to submit to a chemical test, the license suspension will be two years.
Note that if the DMV suspends your driver’s license, but a criminal court judge drops the charges against you, your lawyer can help you in reinstating your license.
A 2nd offense DUI is a misdemeanor offense. If convicted, you will face the following penalties:
- Between 96 hours and one year of jail time - However, in certain cases, a jail sentence can be changed to community service or house arrest
- Summary probation of three to five years
- A fine ranging from $390 to $1,000 and an additional of approximately $1,000 in fees and penalty assessments
- An 18 or 30-month DUI school program - The DUI School has to be approved by the court
- License suspension for two years - The DMV suspension is allowed to overlap with criminal suspension so that the total time of suspension won’t go beyond two years. Also, you can apply for the license suspension to be changed to a restricted ignition interlock device license to enable you to drive to any place provided it is installed. For drug DUI offenders, they have to complete twelve months of the license suspension before they can qualify for the restricted license.
- A one-year ignition interlock device installation
- A thirty days to one year SCRAM monitoring
SCRAM (Secure Continuous Remote Ankle Monitoring) refers to an ankle bracelet that you will be required to wear nonstop for a period ordered by the court. The bracelet will detect any amount of alcohol in the blood system and perform automatic assessments after every thirty minutes. The results would then be automatically relayed to a regional monitoring system. If there is any alcohol detection, the court will be notified.
For sentences that include probation, you must adhere to these conditions:
- You should not decline to take a blood, urine, or breath test if you get arrested for subsequent DUI
- You should not operate a vehicle with any detectable alcohol amount in your blood system
- You should not commit any additional offenses
Additionally, based on the facts of your case, you may be required to adhere to the following probation conditions if you are convicted for a second DUI offense:
- Attend AA (Alcoholic Anonymous) or NA (Narcotics Anonymous) meetings
- Restitution in case your DUI led to an accident
- Participate in the Mothers Against Drunk Driving (MADD) Victim Impact Program
- Install an Ignition Interlock Device on any vehicle you will operate for utmost three years
A 2nd DUI offense can also be a felony. In this case, the penalty would be three years state prison sentence. However, the sentence can be served in county jail as per Penal Code 1170 of California. A felony DUI is whereby you caused the victim great bodily injury or death.
Immigration Consequences of Second Time DUI Offenders
A DUI conviction can have severe consequences on one’s immigration status. While a first time DUI may not result in immigration-related consequences, a second DUI may, especially if there are aggravating factors in play. 2nd-time drug DUI offenders who are non-U.S. citizens risk being deported if the drug is a controlled substance. Additionally, it may affect their inadmissibility into the country as well as their naturalization process.
Aggravating Factors that Can Increase 2nd DUI Offense Penalties
There are specific factors that, if at play during your 2nd DUI offense arrest, will enhance your state prison or county jail sentence. They include:
- DUI with a BAC of .15% or more
- Refusing to take a chemical test
- DUI over the speed limit
- DUI resulting in an accident
- DUI with a minor (a child below 14 years)
- DUI on a suspended license
- DUI when you are below 21 years old
- DUI hit and run
The type of increased penalty you will get for any of the above aggravating factors depends on the facts surrounding your case and your criminal record, with more focus on the first DUI conviction. A first DUI conviction, together with any of the aggravating factors, will make the penalties more severe.
An experienced DUI attorney can examine the specifics of your case and determine whether there are valid defenses that he/ she can present at trial. Workable defenses include:
Lack of reasonable suspicion
It is illegal for traffic police to have you pull over if he/she has no reasonable cause to be concerned. He/ she needs to have a valid reason to suspect that you are violating the law for him/her to stop you. For instance, if you were driving unsteadily, it would be in order for the officer to have a reason to suspect that you are intoxicated. This is because you are not in control of your car and are driving in a way that exposes you, anyone in the car, and other road users to the risk of an accident, which is unlawful.
However, it would be illegal if you get stopped for DUI just because it is late in the night, and you are driving in an unsafe neighborhood. This is because you aren’t violating any laws. On this note, any proof the officer will collect shouldn’t be admitted into evidence in court.
Lack of probable cause
A police officer has no right to stop you without any valid reason. If you are stopped because your headlights are faulty or your side mirror is broken, then the officer finds out you are driving under the influence, he/ she will be in order to arrest you.
Even then, he or she would need a valid reason for him/her to compel you to take a BAC test. This means he/she has to observe for facts that suggest you could be driving while intoxicated. For instance, if you are finding it hard to follow the conversation, if you have an open, visible alcoholic container in your car, or if he/she can smell an alcoholic odor. In case the officer administers a BAC test without reason, the proof found from the test is illegal and should not be used in court.
False positive BAC test results
It’s possible that BAC test results can be falsely high due to several factors. Factors like faulty equipment, prescription medication, the diet you take (low carbohydrates and high proteins), and medical conditions like heartburn or acid reflux are common contributing reasons to false results.
Additionally, it is possible that the officer may have made a mistake while administering the test, collecting the results, or storing them. You should have an experienced DUI attorney who can identify errors that can result in false results that would be illegal to be used in court.
Misconduct at a DUI checkpoint
California State has rules and regulations that dictate how DUI checkpoints should be and how police officers that staff them should conduct themselves. For instance, every checkpoint should have a supervisory police officer on site to ensure safety and compliance with the operation. Therefore, all drivers must be pulled over depending on predetermined criteria, which should not be prejudicial whatsoever. Additionally, the officers administering the BAC test have to follow the right procedure. Failure to which, the evidence will be open for a challenge in court.
The officer did not read you Miranda rights
It is important for a police officer to read you your Miranda rights when arresting you. In most DUI cases, Miranda rights may not be read to you when being arrested. However, when you are in custody before being interrogated, these rights must be read to you. In case they interrogate you without reading you the rights, your answers shouldn’t be admitted into evidence.
You were not driving, neither were in actual physical control of the car
If the police officer didn’t personally see you drive and there aren’t any witnesses to testify that they saw you drive, or any other proof to substantiate that you were driving, this defense may be valid. You can argue that after you got drunk, you went back to your car to doze the alcohol off before you could drive. Moreover, when the officer approached you and smelled alcohol, he/she placed you under arrest. Thus, the arrest would be unlawful since you were not driving while intoxicated.
Prescription medication defense
In California, a police officer may detain you if you are intoxicated with any drugs, which are impairing your driving ability, even if they are prescribed by the doctor. However, he/she will need more information to show that you were impaired when you got arrested. His/her mere opinion is not valid. Also, even if you do a test which reveals a prescription medication in your urine or blood, it is not enough for the officer to conclude you were driving under the influence. This is because most of these drugs remain in the system for many days or weeks after you take them.
2nd Offense DUI Plea Bargain
Before your case proceeds to trial, the prosecutor may offer you a plea bargain. Most prosecutors would want to offer you a plea bargain because at the end of the day they will still get a guilty judgment. Essentially, they are offering a deal whereby if you plead guilty to reduced charges of your offense, you will get reduced jail time. This may seem to be the best deal for you at the moment.
However, it is important that you have an experienced DUI attorney since he/she might be able to negotiate the best probable outcome for your case. Also, he/she may advise you accordingly on whether or not to take the deal the prosecutor is offering you. With a good attorney, your case may not proceed to trial.
If the prosecutor is not offering a satisfying deal, your attorney can allow the case to proceed to trial because chances are you may still win. Prosecutors tend to offer plea bargains if they are not sure they would win at trial. If the case goes to trial, they may fail to prove elements of the crime.
Can a 2nd DUI Offense Criminal Record be Expunged?
Fortunately, your criminal record for a second DUI conviction can be deleted from your criminal record. You can expunge your DUI conviction provided you were put on probation, that you completed successfully.
The process of expunging a DUI criminal record is just the same as that of expunging any other criminal record; you file a petition in court which will be reviewed by a judge. In case the judge approves the petition, he/she will grant the expungement. Once the expungement is granted, you can withdraw your no contest or guilty plea and re-enter a not guilty plea. After that, your case should be dismissed.
Contact a 2nd Offense DUI Attorney Near Me
Getting arrested for a second time for DUI is a serious situation that subjects you to harsher penalties. However, if you are in Los Angeles, there are winning options you can pursue. Contact our Los Angeles Criminal Lawyer at 424-333-0943 for an attorney that will prepare a strong defense and improve your chances of winning your case.