In California, it is illegal to drive under the influence of drugs or alcohol. If you are arrested for this offense, you risk being charged with a felony or a misdemeanor. Since DUI is priorable, if you commit another DUI offense, it is added to your record, and you're likely to face a more severe punishment than the last time. We at The LA Criminal Defense Law Firm will help you understand all the details entailed in the 2nd DUI offense. We will also do our best to have your charges reduced or withdrawn altogether, possibly. Contact us today to discuss your case details.
The Legal Definition of 2nd Offense DUI
2nd DUI offense means that you have been convicted of driving under the influence offense before. It falls under a misdemeanor, and your license risks being suspended. To avoid your license suspension, you should request a DMV hearing within the first ten days of your arrest. You are also entitled to a jury trial before your conviction for the crime.
To be charged with a 2nd driving under the influence offense, the prosecutor must prove that:
- You were driving carelessly and
- Your blood alcohol concentration was above 0.08% or that you had consumed other drugs.
If you had been charged with a felony during your first DUI conviction, or if you caused severe injuries or death while driving under the influence, you will be charged with a felony for violating Vehicle Code 23513VC. In case of death, you can also be charged with Watson's murder.
The arresting officer, the prosecutor, and the prosecutor's witness have to prove beyond a reasonable doubt that you drove when under the influence. Also, not all times that the BAC tests show the correct results, you could have taken medicine, which showed alcohol in your body.
It can be challenging, challenging prosecutors since some are very intimidating. That is why you need to allow an experienced and skilled attorney to handle your case.
The DUI Arrest
In California, DUI arrests start with a checkpoint or a traffic stop. The police officer requests you to perform some field sobriety tests and blow your breathe in a Breathalyzer. The police will then invite you to take a breath test or a blood test at the station, hospital, or jail. If you refuse to accept these tests, you may face harsher DUI penalties.
If you face a misdemeanor, the police will likely set you free after a few hours of booking and arrest. However, for a felony DUI charge or cases involving an accident, you have to post bail.
While being released, you are given two documents, which are:
- A pink paper which is a temporary license
- A citation to show up in court
The officers will take your license and forward it to the DMV. However, if you are arrested for DUI in California, but you are not from the state of California, the police have no right to take your physical license.
The DMV Hearing
If you had been convicted for DUI again within the last ten years, the DMV might suspend your license for up to one year. But you can request a DMV hearing within ten days to avoid the suspension of your license. It is crucial to get a qualified and skilled attorney to represent you during the DMV hearing to increase your chances of winning the case. If the ten days pass without taking any action, your license is suspended automatically. For a second DUI conviction, your license suspension can also be caused by a DUI conviction by California court under vehicle code 23152 (a) or(b).
If the chemical test results prove that your blood alcohol concentration was not above 0.08%, the license suspension will be canceled.
What if I Win or Lose the DMV Hearing?
You have the right to a DMV hearing, but you can choose not to have one. It is also optional for you to have legal representation; however, it is a must for you or your lawyer to be present at the DMV hearing.
Winning at the hearing has nothing to do with the other DUI proceedings. The DMV hearing can only affect your driving rights and nothing else on your DUI charges.
If you lose at the hearing, you can renew the hearing within one year from the date you were arrested.
Restriction of the Driver’s License
If you prove that you have installed an Ignition Interlock Device (IID), the DMV can give you a restricted driving license. An IID is a cr breathalyzer that prevents you from driving while drunk by limiting your car's ignition system, depending on your BAC. You are supposed to pay for the IID installation, and you are also expected to take a chemical test after 90 days. If you fail to take a chemical test, your license is suspended for two years, and you cannot be granted the restricted license during this period.
California 2nd DUI Offense Penalties
In most cases, 2nd DUI offenses are charged as a misdemeanor, and the penalties are harsh compared to the first DUI offense. However, this depends on the conditions of each case. The typical penalties for a 2nd DUI offense include:
Unless you are convicted of the crime, most offenses do not have formal repercussions. But with DUI, it is different. If you are arrested for DUI, you are eligible for administrative penalties such as license suspension and fees regardless of whether you will be convicted in court or not.
The DMV inflicts these penalties. The CA Department of Motor Vehicles will suspend your driving license, but a judge drops your charges. An experienced attorney can help you restore your consent.
A second DUI offense is a misdemeanor, and if you are convicted, you risk facing the following:
- Jail time of 96 hours up to one year. But in some cases, a jail sentence can be substituted with house arrest or community service.
- Probation of 3 to 5 years
- A fine of $390 to $1,000 and more $1,000 for penalty assessments and fees
- Attend a DUI school program from an approved DUI school for 18 to 30 months
- Suspension of your license for up to 2 years
- One year with the installation of an "ignition interlock device."
- SCRAM monitoring of thirty days to one year.
What is SCRAM?
A Secure Continuous Remote Ankle Monitoring (SCRAM) is a bracelet worn on the ankle that you will be asked to wear always for the time ordered by the court. The bracelet will carry out an automatic assessment after every half an hour and disclose the alcohol amount in your system. These results are broadcasted to a regional monitoring system, and the court will be notified if any alcohol will be detected.
SCRAM is used for weighty offenders and those who are judged to be alcohol addicts.
There are certain conditions that California courts are likely to inflict for a 2nd DUI offense. Some of these probation terms include:
- You should avoid committing more crimes
- If you have been convicted for DUI again, you should not refuse to take a chemical test for your breath, blood, or urine
- You should avoid driving with alcohol in your system (Not even the slightest amount)
- You should take part in "Narcotics Anonymous" and Alcoholics Anonymous"
- You should engage in the "Mothers Against Drunk Driving" victim influence initiative.
- Restitution if you caused an accident while drunk driving
- Installation of IID in all your cars
The Consequences of Immigration for 2nd DUI Offenders
A DUI conviction has severe repercussions on a person's immigration status. A first time DUI may not always lead to an immigration-related outcome; a 2nd DUI may lead to immigration consequences, mainly if there are aggravating factors. Non-US citizens convicted of 2nd DUI offense are likely to be deported if they were intoxicated with a controlled substance.
2nd DUI Offense Aggravating Factors
These are factors that are likely to increase your punishment and penalties. Since you are facing a 2nd DUI conviction, factors surrounding your case and your criminal record may also increase your penalties for any of the following aggravating factors:
- If your blood alcohol concentration was above 0.15%
- If you declined to take a chemical test
- If you caused an accident while driving under the influence
- If you were driving under the influence and you are below 21 years, the legal age of drinking alcohol
- If you were overspeeding
- Suppose you had a passenger in your car below 14 years. Under penal code 273(a), this is charged as child endangerment.
- If you were driving while your license was on suspension
- If you were associated with a hit and run DUI
What to Expect if Involved With 2nd DUI on While Probation
It is not automatically charged as a felony. But it involves severe penalties from the DMV as well as the court. However, if you injured a person or your first DUI offense was a felony, this will automatically be a felony. The following are the consequences you are likely to face if you are convicted for a 2nd DUI offense when on probation:
- You are likely to be fined for the violation of probation regulations
- You become ineligible for a restricted license
- Your BAC standard is decreased from 0.08% to 0.01%
When you are on probation, you accept the terms that you will not operate a car with any amount of alcohol in your system. If you go against these terms, the court will conclude that you have an alcohol consumption problem. To avoid going to jail or reaping the DUI offense, you should show that you can control your alcohol consumption problem by accepting to be a part of the AA meetings.
Fighting A 2nd DUI Charge
A 2nd DUI offense is a critical offense that could be complex to defend. It is vital to reach out to an inexperienced attorney immediately after your arrest to have your charges reduced or your case dismissed.
It is crucial to allow a DUI defense lawyer to handle your case and look for possible defense. There are a few things that your attorney will do in preparation for your defense. These things include:
- Collecting and Analyzing Evidence — a skilled lawyer will create a strong defense by finding witnesses to testify in your favor and gather enough evidence to damage the arresting officer's testimony. The evidence could be videos of the police vehicle as they stopped or any audio recorded.
- Writing and Legal Research — There are chances for the arresting officers to have treated you in an unprofessional manner. A good defense lawyer should collect this evidence to support your case and add written motions. Your lawyer can file a "Pitchess Motion" to be held before trial in case of such a situation. If your attorney can prove that the arresting officers inappropriately handled you, you have more defense in your case.
Defense For a 2nd DUI Offense
A skilled lawyer could use the following defenses to get your charges reduced or dismissed:
You can only be convicted of DUI in California if you were arrested when the vehicle was in motion. If you were asleep in a car that was parked, you have a strong defense for your case. However, the arresting officer doesn't need to prove that you were driving. They need to prove that you physically operated the vehicle while under the influence.
Challenging the Chemical Tests Results
It is illegal to operate a vehicle with a BAC of above 0.08%; chemical test results are enough to prove your intoxication. You can challenge the chemical test by stating that the results could be unreliable due to mistakes during the testing procedure. If you are questioning the chemical test results, you may need testimony from an expert who witnessed the process.
No Probable Cause
For the arresting officers to pull you over and arrest you, they need to have probable cause. They need to have a valid reason that either you or someone riding in your car as a passenger have broken the law. However, roadblocks and checkpoints are not part of the rules for probable cause.
A proper stop does not mean that the DUI arrest was right; the police should also have a valid reason to believe that you have violated DUI laws. The probable cause for your arrest could be from the officer's observations or results from the breath test. The police might state that you smelled alcohol, or your performance on the FSTs was low, and for some judges, this could be enough proof for a probable cause. Challenging this can be complex, but you can present an excellent defense for your case with a great attorney.
No Miranda Warnings
Before the police question you, they need to give you Miranda warnings. If the officers did not give you any Miranda warnings and were in custody, you can question the police questioning, and the statements you made will likely not be used in court.
Driving Poorly Does not Always mean DUI.
Not all cases of poor driving mean that you were under the influence of drugs or alcohol. You must request the police to testify how you were driving when they pulled you over.
According to the NHTSA, most people who drive poorly are not always drunk; some drive carelessly due to other distractions like texting or receiving calls while driving.
With an experienced attorney, this could be a strong defense for your case.
DUI Symptoms are not Same as Intoxication Symptoms
The police officers will probably testify that your symptoms were similar to those of DUI. Some of the intoxication symptoms include red eyes, unsteady gait, alcohol odor, or slurred speech.
However, a great defense attorney will use these facts to counter the allegation:
- Having an alcohol odor does not mean you were driving under the influence or that you were intoxicated.
- Red eyes, unsteady gait, alcohol odor, or slurred speech can be caused by allergies, fatigue, cold, or eye irritation.
You were not Allowed to Contact an Attorney During the Investigation process.
After being arrested, you have the right to reach out to an attorney. Mainly because these charges have harsh penalties, and you need a possible defense to lessen your charges or have your case dismissed. Evidence obtained after violating this law will not be used in the case.
Defense Against Arrest Procedures
In California, arresting officers are supposed to follow the right procedure when arresting any suspect. If the arresting officers arrested you unlawfully, you would have an excellent defense to your case. You must share with your attorney all the events during your arrest to ensure that they do not leave any possible defense out. Any evidence obtained during the unlawful arrest is eliminated from the pieces of evidence.
In California, Watson's murder is contemplated as second-degree murder. The prosecutor must prove that you acted under implied malice when driving under the influence of drugs or alcohol. And that it led to a severe accident which caused death and you had been convicted of DUI before you had been read a Watson admonition, or had undergone DUI school. A Watson admonition is read to you as the defendant to counsel you that you will be convicted with murder for a future DUI since it exposes human life to danger.
Implied malice is:
- When you drive under the influence intentionally
- Your actions pose a danger to human life
- You acted with disregard for human life
- You were aware that your actions were unsafe for human life, but you went ahead and committed the acts
The prosecutor's main job is to prove that you acted under implied malice, and you will therefore be charged with breaching Penal Code 191.5(a) or penal code 191.5(b). If the prosecutor can prove that, you can be charged with murder even if you had no Watson warning before.
Penalties for Watson Murder
The penalties involved in Watson murder are:
- Imprisonment at the state prison for up to fifteen years
- A fine of $10,000
- Effect on your criminal records. If you commit a felony offense again, with more than two consequences on your history, you risk receiving a mandatory jail time of up to 25 years.
The legal reasons for the Watson murder are:
- You did no actually drive under the influence of drugs or alcohol
- The accident was someone else’s fault and not yours
- The police officer or the prosecutor acted unprofessionally
- You never acted under an implied malice
Eligibility for Expungement of 2nd DUI Offense
You are eligible to expunge a DUI offense from your criminal record. Once you have completed your DUI probation, you can send a petition to the court to request that the conviction record is expunged. The judge will decide if you have the right to the expungement.
Once the judge makes his/her decision that you are eligible, you will take away the guilty plea and sign up for a not guilty plea. However, if you were found guilty by bench trial or jury, the judge will set the verdict.
If you are looking to advance in your career or are looking for a job, an expunged conviction is very beneficial. You are allowed to mention your expunged conviction, and your employer should not deny you any opportunity based on this.
Find a Los Angeles DUI Defense Attorney Near Me
DUI is a complicated offense and should not be taken lightly. It is vital to reach out to an experienced defense attorney immediately after your arrest. At The LA Criminal Defense Law Firm, we are dedicated to fighting for you if you face criminal charges. Please note that a priorable offense such as a 2nd offense DUI carries higher penalties than the first charges. So you should get in touch with us at 310-935-1675 as soon as possible.