DUI offenses committed in the State of California are considered priorable offenses, such as a second offense DUI. In this case, a second offense DUI has more penalties than a first offense DUI. Leah Legal in Los Angeles will take you through your legal options when charged with a second time DUI, as discussed further in this article.
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What is Second Offense DUI Under California Law?
A second time DUI arrest may either be based on a driving under the influence of alcohol charge or a charge for driving with a 0.08 percent BAC or higher. Driving while intoxicated with alcohol is a crime under Vehicle Code 23152(a) while driving with a 0.08 percent BAC or higher is a crime under VC 23152(b).
Under the California DUI laws, the prosecution team must prove that you were intoxicated with alcohol when driving, and you actually operated a motor vehicle. VC 23152(a) considers alcohol intoxication as a factor in impairing a driver's mental or physical abilities. You risk facing a DUI charge for being unable to drive your car as a sober person would do under similar circumstances.
Your second time DUI charge will be based on the allegation that you were driving a motor vehicle. In California, courts consider the movement of a vehicle as a factor constituting driving. Any sign indicating your car moved may be used as circumstantial evidence in your case. Though circumstantial evidence can directly prove guilt, prosecutors can infer it from your surrounding circumstances.
Being Charged with a Second Offense DUI for Driving with a 0.08 Percent BAC or Higher
Vehicle Code 23152(b) prohibits having a BAC of 0.08 percent or more when driving a motor vehicle. Violating this law (the Per Se DUI law) will automatically make you guilty of a DUI even if the prosecution cannot prove you were under alcohol influence. A VC 23152(b) violation is usually charged together with a VC 23152(a) violation. In this case, the prosecutors will allege that your BAC level was above the legal limit when charging you for a DUI offense.
Are There Any Aggravating Factors for a Second Time DUI in California?
A second offense DUI charge may worsen if various circumstances are present during your booking at the police station. The circumstances may include causing an accident, refusing to take a chemical test and having a BAC of 0.15 percent or more. You risk facing more significant consequences for driving at an excessive speed, having a child under 14 years of age and being under 21 at the time of the second time DUI offense. The enhanced penalties for each aggravating factor may depend on:
- Your criminal history
- The actual circumstances of your DUI arrest
- Type of prior DUI conviction
What Penalties Can You Face for a Second Offense DUI in California?
A DUI charge can either be prosecuted as a misdemeanor or a felony. Though most DUI cases fall under the misdemeanor category, they may be considered a felony if someone sustains an injury. A DUI conviction may carry a jail sentence or allow you to drive provided you have an ignition interlock device in your car.
The consequences of being convicted of a second offense DUI in California include fines (at a $390 to $1,000 range) and summary probation (of between three to five years). Other penalties include a jail sentence of between 96 hours to one year and enrollment in a DUI school approved by a California court. The conviction may also attract a mandatory license suspension valid for two years and an IID installation valid for one year.
The facts surrounding your DUI case will determine the severity of the penalties you may face. Furthermore, the penalties may vary with the county in which your DUI conviction occurs. California courts usually impose probation under DUI sentences to include various conditions. The conditions include:
- Agreeing not to commit any further crimes
- Complying with the California DUI laws (which prohibit driving a vehicle with any measurable alcohol amount in your blood)
- Agreeing to submit to a blood or breath chemical test if arrested for committing a subsequent DUI offense
Your circumstances as a defendant may determine whether a court will ask you to restitute injury victims or have an IID installed on your car. You may also have to attend NA (Narcotics Anonymous), AA (Alcoholics Anonymous) or MAAD (Mothers Against Drunk Driving) programs. These conditions will be part of the court-imposed summary probation for a second time DUI.
Are There Any Alternative Sentencing Options for a Second Offense DUI?
In California, you may qualify for alternative sentencing options when convicted for a DUI charge. These options will act as alternatives to your county jail sentence. They may include community service, roadside work residence in a sober-living environment. Others include incarceration in a city or private jail and house arrest (electronic monitoring).
Do You Risk Losing Your License for a Second Offense DUI?
The California DMV (Department of Motor Vehicle) has the power to suspend your driver’s license or issue you with a restricted license under various circumstances. A DUI conviction, according to VC 23152(a) or (b), may trigger a DMV license suspension. You may also lose your driving privileges after failing to schedule a DMV hearing ten days following your DUI arrest.
You risk facing a two-year court-triggered license suspension for having 0ne prior wet reckless or DUI conviction within ten years. The suspension will be valid for a year if it is imposed by the DMV for having one prior DUI conviction within ten years. Your right to obtaining a restricted license is only valid after you submit to a chemical test and have an IID on your car. A restricted license, which lasts twelve months, allows you to travel anywhere with your vehicle.
Does a Second Time DUI Conviction Attract a Permanent Criminal Record?
You may have a second offense DUI conviction discharged from your permanent criminal record through expungement. The conditions for expunging a DUI conviction in California include being placed on probation and completing the probation. Your attorney should file a court petition, which a judge will review to grant you DUI expungement.
How Will the Prosecution Team Prove Your Second Offense DUI Charge?
Vehicle Code 23152(a) considers DUI as a subjective offense, meaning that the prosecution team can comprise of various individuals. The team may include the arresting officer, prosecutor, and expert witness from a local law enforcement agency. Expect the prosecutors to begin the case against you in the investigation phase. During this phase, the arresting officer will prove you lacked the physical or mental ability to drive your car safely.
Prosecutors usually build DUI cases by relying on facts gathered from different sources. One of the sources includes an officer's testimony regarding your performance on a field sobriety test, physical appearance, and driving pattern. Discussed below are the means used by prosecutors to strengthen a second offense DUI case:
An Official Testimony from the Arresting Officer
Your arresting officer will give a statement regarding your inability to drive or reckless driving. The officer will suggest you exhibited objective signs of being intoxicated. These signs may include wobbliness on the feet, the odor of alcohol in your breath, slurred speech or red and watery eyes.
If you poorly performed in your field sobriety test (FST), the officer will link the test results to the allegations of you being intoxicated. FSTs are mental and physical exercises administered by the police during DUI investigations. Law enforcement officers attribute poor performance on FSTs to impairment from drugs or alcohol. Examples of FSTs include the one-leg stand, the walk-and-turn, and the horizontal gaze nystagmus.
Blood or Breath Test Results
The prosecution team is authorized to introduce your BAC results to support their allegations against you. In DUI cases, BAC (Blood Alcohol Concentration) is a standard measure for the alcohol amount in a person's bloodstream. Your BAC results will be used to establish whether you were driving under the influence at the time of your second time DUI arrest. The prosecutor must prove your inability to drive due to intoxication safely.
The legal limit for blood alcohol in California depends on the type of driver and vehicle. Adult drivers operating non-commercial vehicles should have a BAC of less than 0.08 percent. Underage drivers should not exceed the 0.05 percent limit while commercial drivers should not exceed the 0.04 percent limit. The legal BAC limit for ride-sharing, taxi, or limo drivers is 0.04 percent.
Statements from Expert Witnesses
When your second offense DUI charge is based on driving under the influence of drugs, the prosecutors will work with an expert witness to build the case. While the testimony from your arresting officer helps build your case, a Drug Recognition Expert (DRE) will be introduced for clarity reasons. The DRE’s role is to examine you and testify about your physical symptoms of being impaired.
Legal Defenses for a Second Offense DUI Charge in California
Prosecutors use extreme measures to support their allegations against you. Your attorney, on the other hand, should prove you were not actually intoxicated, or your driving was not impaired. The lawyer may also point out the wrongful arrest you were subjected to before being taken to the station. Your charge may be argued using the following legal defenses:
Physical Symptoms of Intoxication are Inadequate for a DUI Conviction
Your lawyer can challenge the use of objective symptoms of intoxication to invalidate the second-time DUI charge you are facing. The arresting officer may have considered you as a DUI driver for having red, watery eyes or a flushed face. Though these signs and symptoms are defined under a DUI arrest form, they are inadequate to imply you were driving under the influence. You may exhibit the traits of intoxication due to fatigue, eye irritation, a cold, or allergies.
Bad Driving Does not Imply Driving Under the Influence
One way to fight a second offense DUI charge is by suggesting that you were driving poorly rather than driving under the influence. Prosecutors pay attention to the driving pattern of DUI offenders when charging them. As a rebuttal, your attorney can argue that driving patterns are not an adequate DUI predictor. Furthermore, most traffic violations are usually committed by sober motorists/pedestrians.
Field Sobriety Tests Are not Accurate in Measuring Physical Impairment
Part of the prosecution's evidence against you will be field sobriety test results. As the prosecutor links poor performance in this test to impairment, your attorney can challenge this claim. You may lose coordination and balance in the FSTs due to fatigue, flat feet, nervousness, or uncomfortable clothing.
Your BAC Was High Due to Various Medical or Physical Conditions
Conditions such as hypoglycemia or diabetes are known to inflate the blood alcohol content in the body falsely. Your BAC can also falsely be inflated after taking a high protein diet or fasting. The liver may respond to these conditions by producing ketones, which are toxic byproducts designed to mimic alcohol. This defense may help you challenge the validity of the BAC results used as evidence by the prosecution team.
Failure of the Arresting Officer to Follow Proper Procedures
DUI investigations are safeguarded by Title 17 regulations and procedures to protect drivers from police misconduct. Police officers are required to have probable causes for initiating a traffic stop. They are also supposed to read offenders their Miranda rights before interrogating them. If the arresting officer breached these regulations, your lawyer could request a hearing to invalidate any improperly obtained evidence.
The Officer Failed to Comply with the Regulations on Breath and Blood Testing
Code of Regulations Title 17 under the California laws governs the procedures for conducting DUI breath and blood tests. Under these regulations, the officer must wait for at least 15 minutes before administering the test adequately. Other requirements include proper training of the personnel, maintenance of the testing kits, and proper handling of blood samples.
If the officer did not adhere to these requirements, your test results could be inaccurate. Your lawyer can identify the Title 17 regulation that was breached and use it to invalidate the test results. The entire DUI investigation will be called into question, allowing you to defend yourself against the second offense DUI charges.
How a Lawyer Can Help You Fight a Second Offense DUI
Lawyers spend countless hours creating effective defenses for DUI charges. You will need expert legal help to collect and analyze evidence, interpret evidence, and settle for a better outcome. A good DUI defense lawyer knows how to gather and analyze pieces of evidence that are crucial to your case. Evidence gathering may include subpoenaing witnesses and obtaining the footage of the traffic stop from the police.
Apart from gathering evidence, your attorney will use the evidence to file written motions in your favor. For instance, your legal counsel may file a Pitchess Motion to get permission to look into the arresting officer's work file. You also need a lawyer to negotiate with the prosecution team in the evident a deal for charge reduction is offered. Negotiating this kind of arrangement may prevent your case from going to trial.
The most common instances of DUI offenses include first offense DUI, second offense DUI, and third offense DUI. Your DUI charge may be considered a subsequent one if you committed it ten years after the previous DUI charge. The various DUI offenses related to a second time DUI charge are as follows:
First Offense DUI
A first offense DUI charge may be based on the fact that you violated VC 23152(a) and VC 23152(b). The charge may attract $390 to $1,000 in fines, jail time of up to 6 months, and informal probation of three to five years. You will also attend a court-approved drug or alcohol education program or have an IID installed in your car.
Third Offense DUI
A third offense DUI committed within ten years of a second offense DUI in California attracts various penalties. They include fines, jail time, informal probation, and enrollment in a DUI education program. You will also have to install an IID in your car and be labeled as a habitual traffic offender.
DUI Causing Injury
You may face this charge for exposing the third party to an injury due to your intoxicated driving. A DUI with injury charge may be considered as a misdemeanor or a felony. Penalties include habitual traffic offender status, fines, strikes on your DMV record and restitution to the third party.
Acquiring four or more DUI convictions in ten years may attract a felony DUI charge. The consequences of this offense include HTO designation, mandatory IID installation, and fines. You also risk facing sixteen months to three years in state prison.
Find a Competent DUI Defense Lawyer Near Me
The outcomes of your second offense DUI case depend largely on your willingness to work with a lawyer. At Leah Legal, we believe that every person deserves an adequate defense when facing a criminal charge. We are highly trusted for ensuring clients get the best defense strategy for their case. Schedule legal help from our Van Nuys DUI Lawyer by calling 818-484-1100.