The two California laws prohibiting drunk driving are under VEH 23152(a), the law that criminalizes driving while intoxicated, and VEH 23152(b) when your BAC level is 0.08% or higher. DUI offenses in California are priorable. This means that the penalties you receive are steeper for every successive conviction on a DUI or wet reckless offense. The period under which this works is ten years.
But, being charged with the offense and receiving a conviction are two separate issues. Before you receive your punishment, the prosecutor must prove that you violated the law by determining the various elements that will be discussed later in the article. If these elements are proven, the penalties are more stringent than for a prior offense requiring aggressive defense. If a loved one or you are charged with a third DUI, finding an experienced attorney from The LA Criminal Defense Law Firm will help. Our lawyers understand the DUI laws and various ways to challenge the prosecutor's case to your advantage.
Understanding 3rd DUI Charges
When a prosecutor charges you with a third DUI offense, it means you have two prior convictions on wet reckless or DUI in the last ten years. As earlier stated, for a third DUI violation, the penalties are steeper than for the prior ones. However, before a conviction, the procedure must be followed, and the prosecutor proves the violation's elements to be true.
The process begins with an arrest on a DUI violation. An officer must have a probable reason before pulling you over. If you were stopped and charged without probable cause, your lawyer could use it in your defense. This makes it critical for you to know your rights and what the law says regarding the offense.
An officer can stop you from violating a traffic offense, driving in a dangerous pattern, or having a broken tail light. All these are probable reasons to stop you. If, after stopping you, the officer notices a reason to suspect intoxicated driving, they will investigate this further. Some of the reasons may be:
- Slurred speech
- Presence of alcohol bottles in your car
- The smell of alcohol in your breath
- Glassy eyes, among others
When the officer identifies any of the above, they can assume it is the reason for your behavior on the road. Further, the officer will ask you to submit to field sobriety tests to determine if you are intoxicated. An important thing to note is that you do not have to agree to the tests unless you are below 21 or are currently serving DUI probation. Refusing to submit to the tests when under any of these categories will subject you to harsher penalties. However, if you do not belong in any of the categories, you can decline the tests, and no charges will be brought against you.
If you fail the field sobriety tests, the officer will arrest you for further investigations. At the station, you will be expected to consent to a chemical test to determine your intoxication level and the substance of your intoxication. Importantly, failing to submit to a chemical test after being legally arrested will subject you to sentence enhancement. This is usually so because of the implied consent where the law assumes when you obtain a California driver's license, you allow for chemical testing following a lawful arrest.
After it is established that you are impaired, the arresting officer takes your license, and you are processed for bail and charges. At this time, your history is checked, and if you have two prior DUI convictions in the last ten years, you will be charged with a third violation.
When the officer takes your license, you will be issued a temporary one valid for a month. The officer sends your license to the DMV and informs them of your arrest and charges. The DMV also has a record of your DUI offenses and will penalize you according to it. But, before the DMV suspends your license, you will be given a chance to convince them against the suspension. This opportunity is only given if you request it, ten days from the date of a letter notifying you of the intended suspension.
If you fail to request the hearing, the DMV will automatically suspend your license for three years. However, with an IID installed in your car, you can continue driving without restrictions.
Proving a Third DUI Violation
If you are charged with a third DUI violation, you will need a lawyer to fight the allegations, win the case or earn you a favorable outcome. The prosecutor must also determine the various elements of the offense before you receive a conviction. These elements are:
- You were driving at the time of your arrest.
- That as you operated the vehicle, you were intoxicated.
- That the chemical tests indicated you were either intoxicated by alcohol at 0.08% and above or by drugs
- That is the last ten years, you have been convicted twice on either wet reckless or DUI charges.
If the prosecutor proves these elements beyond a reasonable doubt, the judge will sentence you to the penalties according to a third DUI violation. However, your lawyer will work on challenging the prosecutor's case by poking holes into the offense elements. If the defense is successful or creates doubts on the prosecutor's case, the charges might be dropped, or you become convicted on a lesser offense.
Penalties for a 3rd DUI Offense
When faced with these allegations, one of your first concerns is how your punishments and penalties given by the judge and DMV will be different from prior convictions. This question is not easy to answer, but the penalties are based on the offense’s circumstances. However, the penalties must fall under a given spectrum according to the law.
If the prosecutor convinces the court that you violated the law by repeating a DUI for the third time, the possible penalties you may face include:
- Informal or penalty probation lasting between three and five years
- Serving at least four months and not over twelve months in jail
- A fine not below $2,500 or above $3,000 inclusive of penalty assessment fees
- Being ordered to install an IID for two years in your vehicle
- Enrolling and completing DUI school program lasting two and a half years
- Possible revocation of your driving privileges for three years, but you can receive a restricted license after one and a half years. However, if you install an IID immediately, you can enjoy driving without interruptions.
If sentenced to informal probation, the sentence is served under strict terms and conditions you must observe. If these or any of the terms are violated, it may result in revoking the probation sentence and, in its place, the maximum jail sentence given. Before the revocation, a hearing is conducted for the judge to decide if to modify the terms, uphold the sentence, or revoke it and instead sentence you to jail.
The terms of DUI probation include:
- You must never drive with traceable alcohol in your system as you serve your probation sentence.
- You must agree to chemical tests to determine your intoxication levels if you are later arrested on DUI suspicion.
- You must not commit other crimes according to California law.
- If you were found to have substance abuse issues, you would be ordered to attend alcohol anonymous or narcotics anonymous meetings near you.
- Pay restitution if an accident occurred that resulted in injuries to another person or destruction of their property.
What Happens to your Driver's License in a Third DUI
If you are arrested and charged with a DUI offense for the third time in California, you risk a more extended suspension of your license than in the previous offenses. Additionally, if convicted, you will earn the title of a Habitual Traffic Offender (HTO) from the DMV. However, you may continue driving without restrictions provided you install an IID in your car despite the suspended license.
Your license can be suspended in two different ways with a third DUI violation. These are:
- If the court convicts you on the offense or
- If you lose your hearing at the DMV or fail to ask for a hearing within the ten-day window
If previously you had been convicted on two occasions for a wet reckless offense or a DUI and ten years have not elapsed since the convictions, you trigger a three-year suspension of your license by the court. Additionally, you earn APS license suspension for a year when you have two prior convictions in the last ten years.
But, in both cases, you can have a restricted driver’s license immediately if you agree to chemical testing and show evidence that you have installed an IID in your car. A restricted license permits you to continue driving to any place provided you have the IID device in your vehicle. The law requires you to keep the IID for two years before your license is reinstated. It is important to remember that this requirement cannot be adjusted, and it is the only way you can continue driving in California.
However, if you refuse chemical testing and face your third DUI charge, the consequences of your actions are steeper. In this case, your driver's license is revoked for three years, and worse, you cannot obtain a restricted driver's license during the suspension time.
Your Criminal Record after a Third DUI Conviction
Having a criminal record is not pleasant, especially because of the opportunities you are denied and the stigma of a conviction. One of the questions most people would ask is if they will have a lasting criminal record due to their offense. Fortunately, you can have your record deleted by obtaining an expungement.
An expungement is a court process that you request to have your record deleted. When your lawyer files a petition in court to remove your third DUI record, the petition is shared with the prosecution. If the prosecutor has a reason why you should be denied the expungement, the judge will set a hearing date. During this hearing, both sides will present their argument before the court. The judge will decide whether to grant the expungement request after hearing the arguments.
If the expungement is granted, you withdraw your guilty plea and enter a not guilty plea instead. After, the case is dismissed, and your record is deleted from the public. However, you can only expunge your DUI conviction in California if:
- You were sentenced to probation.
- You served your sentence successfully.
Aggravating Factors that Increase your Penalties in California
Earlier, we stated that the sentence you receive upon a third DUI conviction depends on the offense's circumstances. Some of the common aggravating factors are:
- Having a BAC of 0.15% and above
- Declining to take a chemical blood or breath test
- Causing or being involved in an accident
- At the time of arrest, you have a minor below 14 in your vehicle. This will also subject you to another charge of endangering the child according to PEN 273a.
- If you are below 21 years
- Driving at excessively high speeds
The penalties you receive due to the aggravating factors largely depend on two factors that are:
- The circumstances of your DUI arrest
- Your criminal background, especially on DUI violations
With the previous two DUI convictions and any aggravating factors discussed, you increase your chance of jail time or incarceration.
How can an Attorney Help your Case?
The good news is that you can win your third DUI in California. With an experienced attorney in DUI matters, you can receive an acquittal or dismissal or receive more favorable penalties instead of the ones discussed earlier. But, this is also possible depending on what you do following your arrest. Engaging an attorney earlier on in your case increases your chances of beating the allegations.
For your attorney to create a winning defense, they will invest a lot of time and resources in your case. Additionally, your attorney knows the right experts to work with to discredit the prosecution's evidence against you, which you would probably not know.
Some of the reasons that hiring a criminal attorney is critical include:
While it is critical to have a qualified and experienced DUI lawyer on your side that collects and interprets evidence supporting your case, an excellent lawyer will use the evidence to write motions for your case. Some of these motions include pitchess motion, or motion to suppress evidence. These petitions stem from the evidence your lawyer gathers, and if filed before your hearing starts, they are heard first. The importance of these motions in your case is that they help persuade the prosecutor to give you a plea deal or create doubt in the minds of the jury that influences their verdict.
Obtaining you a Favorable Deal
One of the better outcomes in a DUI case is securing a plea deal. An excellent attorney understands the various ways they can persuade the district attorney to grant you a favorable deal instead of the penalties of a third DUI violation. A majority of DUI violations are not tried. However, an experienced criminal lawyer understands how they can manipulate or persuade the prosecutor to your advantage for this to happen. The negotiations between your lawyer and the prosecution can earn you a reduced charge of dry or wet reckless instead of a third DUI conviction.
When faced with a third DUI violation charge, your lawyer must understand how to build a defense for you. This involves gathering evidence, subpoenaing witnesses, and engaging experts. Collecting evidence can sometimes include having more discoveries in the case, including video or audio recordings on the investigations.
For instance, the arresting officer can claim that they noticed you were talking on your cell phone, giving them a probable reason to stop you. However, if you refute this by stating the officer had no probable cause to stop you, your lawyer can introduce your phone records to show you were not using the phone at the time you were stopped. Such evidence becomes vital in your defense because it weakens the prosecutor's case against you.
Legal Defenses to 3rd DUI Violation
If faced with a third DUI charge, a conviction will earn you severe penalties. However, you can beat the allegations with an experienced attorney representing you. Your lawyer will start by understanding the prosecutor's case and their evidence. Your attorney will also interview you and any witnesses to the violation if any.
While formulating defense strategies, your lawyer will check on your arrest process and determine if all the procedures were followed according to the law. After studying these, they may raise motions in your favor as they come up with winning defense strategies. Some defenses that can be used to fight your third DUI charges are:
Reckless Driving does not Mean you were Intoxicated.
When you are charged with a DUI in California, prosecutors tend to focus on how you drove. For further emphasis, they have the arresting officer testifying that your pattern of driving was erratic and common with intoxicated drivers. However, erratic or poor driving must not be concluded to mean you were intoxicated.
Your attorney can refute these claims by stating that most traffic violations are not committed by intoxicated drivers but sober ones. Additionally, erratic driving is not an indicator of intoxication.
Signs of Intoxication can be for another Reason.
Police officers are trained to look out for particular signs that signify a driver’s intoxication. However, physical symptoms do not necessarily mean you were driving while intoxicated. Your physical appearance is highly considered during your trial. The arresting officer is likely to state that:
- You had watery red eyes.
- Your speech was slurred.
- Your face was flushed.
- Your gait was unsteady.
However, you could display these symptoms because of a different reason. For example:
- You have a cold or allergies.
- You are tired.
- Your eyes are irritated.
Field Sobriety Tests (FSTs) do not Measure Impairment Accurately
If the evidence the prosecutor has against you includes your performance in FSTs, your attorney can challenge the results. FSTs are not an accurate indicator of your level of intoxication. There are many reasons that you can fail in these tests, and they include:
- Your dressing – If you are wearing high shoes or tight clothing, you can easily fail.
- Your weight – Overweight people find it challenging to balance on one foot due to their weight. If you are overweight, your losing balance does not indicate intoxication.
- Uneven ground – If the terrain where the FSTs are conducted is uneven, you will likely fall or lose balance even when sober.
- Noise – Distractions from the environment where the FSTs are conducted can cause you to fail.
Your BAC results were Inaccurate
One of the requirements in checking for BAC is to have the device regularly calibrated and serviced. If the equipment is not maintained as required, it would often give wrong results. Your lawyer can challenge the BAC device results, especially when there are no records of how it is calibrated. If this argument is supported by evidence, the BAC results used to charge you are disregarded, weakening the case against you. This is likely to result in the dismissal of the charges.
Mouth Alcohol Resulted in False BAC Results
Your lawyer can use an irregularly high BAC report to argue your case, especially where your charges involved driving while your BAC is at 0.08% or over. Before an officer asks you to submit to a BAC test, they must continuously observe you for 15 minutes. The logic behind this is that if you eat anything with alcohol a few minutes before the test, a test will reveal exaggerated results.
Belching, burping, or regurgitating processes also transport alcohol from your stomach to your mouth, resulting in increased mouth alcohol. If your BAC test is carried out at that time, the results will be an elevated BAC. If this is what happened, your case is likely to be dismissed because no reliable results to support your violation are available.
Find a DUI Defense Lawyer Near Me
Facing a third DUI charge is stressful, especially when you know another subsequent offense will lead to a felony violation. The penalties are steep but avoidable with an experienced attorney fighting for you. At The LA Criminal Defense Law Firm, we have represented many people charged with DUI offenses and had their charges dismissed or have a better outcome for the violations. If you face these allegations, call us at 310-935-1675, and we will aggressively fight the charges on your behalf.