2nd DUI Offense

Second DUI offenses are DUI convictions following a prior conviction within the last ten years. A common issue for many drivers pulled over for a second DUI offense is how different their present circumstances will differ from their first DUI conviction. Their worries are justified because second DUI cases are not clear-cut as the circumstances surrounding the case determine the penalties that will be levied against you.  However, as with any DUI matter, there are legal principles that govern second DUI convictions. It is in your best interest to lawyer up when faced with such charges.

The Orange County DUI Defense Lawyer team offers legal representation for DUI cases in Orange County. The following breakdown of second DUI offenses should help you understand how 2nd time DUI cases will be handled.

Breaking Down a 2nd DUI Offense and the Penalties for a 2nd DUI Conviction

Second DUI charges are brought on a person who has been arrested for Driving Under the Influence (DUI) for the second time within a period of 10 years. The penalties of the second offense are steeper than that of the first time DUI conviction. First time DUI offenders face the following sentences as directed by the courts:

  • Three-years in summary probation

  • Completion of a court-mandated Drug/Alcohol Program. The program often runs for three months.

  • Paying penalties that total to no more than $2,000

  • Completion of the Mothers Against Drunk Driving (MADD) course, which is a one-day program

  • A six-month-long driving license suspension. However, you can have your driving privileges reinstated with the use of an IID, Ignition Interlock Device for six months.

While it is true that the circumstances of your case, determine the penalties you face for the second DUI offense, the court’s punishment is typically the following:

  • Summary probation between three to five years

  • A fine of between $390 to a maximum of $1,000. You could also be required to pay an additional penalty assessment of $1,000

  • Prison time that is within 96 hours to a period of no more than one year. In most cases, the jail sentence passed is for 45 to 90 days.

  • Completion of a court-mandated DUI program that can last either for 18 months or 30 months

  • Installing an IID (Ignition Interlock Device) in your car or the car that you operate. The courts require the device to be in the car for at least a year.

  • A license suspension for two years: in most cases, the license can be converted to restricted status after one year. Alternatively, you can get an IID restricted license. It follows that you have your driving privileges with the condition that the IID is installed.

The judge may impose probationary sentences. If so, there are certain conditions you have to adhere to as part of the terms of the probation sentence. They include:

  • Participating in the MADD (Mothers Against Drunk Driving) program, whose activities are tailored to support victims of drunk driving as well as fight drunk driving

  • Attending Narcotics Anonymous (NA) or Alcoholics Anonymous (AA) sessions

  • Paying restitution sums to the victims, primarily if the accident resulted from your intoxicated state

  • Installing an IID that is functional for three years

The sentences mentioned above are passed on by the courts as punishment for the offense. It is important to note that there is also a license suspension punishment for the crime. While the courts may issue the directive for your license to be suspended, the California DMV (Department of Motor Vehicles) is the only government agency that is mandated to determine a license suspension matter.

Prison terms, fines, and probation terms all depend on the circumstances of your case. As such, there are certain aspects, aggravating circumstances, that increase the terms of your sentencing in a second DUI case. These circumstances include but are not limited to:

  • Driving above speed limits at the time of the arrest

  • Causing an accident

  • Refusing to take a chemical or alcohol test when required to do so

  • Having a BAC level of 0.15 percent or higher

  • Being of age under twenty-one (21) years at the time of the DUI arrest

  • Having children on board at the time of the arrest. In this case, anyone below the age of 14 years is considered a child.

The judge in passing down the sentence for this offense will consider the circumstances detailed above as well as your criminal history. If you have any DUI priors, prepare for harsher punishments.

License Status for Second DUI Offenders

California’s DMV operations are independent of the court proceedings. That is, a license suspension or revocation hearing may proceed whether or not DUI charges are brought against you. Furthermore, you may have your license suspended or revoked even if you are found not guilty in the criminal trial. This is because the DMV evaluates the circumstances of the DUI matter independently.

From the above, three issues are brought out:

  • That the DMV can suspend your license following a conviction for a DUI offense by the courts, that is, you violated Vehicle Code 23152 (a) or (b)

  • You risk having your license suspended if you fail to request a DMV hearing. In most cases, the suspension is automatically effected for drivers who fail to apply for a hearing within ten days after the arrest. It is referred to as the Administrative Per Se (APS) suspension.

  • Your driving license will be suspended if you failed to convince the DMV not to suspend your license at the DMV hearing. It too is a case of an Administrative Per Se suspension.

Court-triggered suspensions run for two years. This penalty comes to effect for drivers who have been convicted of a DUI charge within ten years preceding the second DUI charge. However, if your driving privileges were put off temporarily as a result of an APS suspension, the suspension will last for one year following a DUI prior within the last ten years preceding the second DUI conviction.

In the event your license is suspended, you should not worry. You can enjoy a reprieve from a license suspension. All you need to do is submit to a chemical test when required to do so and show proof of an installed IID in your vehicle or one that you use. Doing so helps reinstate your driving privileges under a restricted driving license. The IID should remain in operation for twelve months. Should you refuse to take a chemical test, you will face harsher penalties. You will have your license revoked for two years with no restricted driving privileges during the two years.

Second DUI Charges and the Permanent Criminal Record

First time DUI charges can be featured in one’s criminal record. However, you can have the charges expunged from the records after one year. The same procedure is used in second DUI charges. Your conviction features as part of your criminal record. Similar to the first-time DUI case, you can apply for the charges to be expunged from your records. Penal Code 1203.4 guides all expungement terms used by a judge.

The whole idea to have the charges removed from your records is born from the adverse effects of a criminal record. Your insurance rates, employability, as well as access to loan can be affected. That is why many look for this alternative. Note that you can only have your convictions removed from your records as long as you meet the following conditions:

  • You were under probation

  • You adhered and completed the probation terms.

You adhered and completed the probation terms.

Having your DUI charge expunged is a simple process. Upon completion of your probation, you can petition the court to remove your conviction from your permanent record. The judge will then review the matter and will only grant the petition if:

  • The petitioner withdraws their guilty plea and changes it to a not guilty plea

  • The judge sets aside the verdict held by the bench or jury trial that determined the case that convicted you of the DUI offense.

While having your DUI conviction removed from the records eliminates the need for you to disclose the matter to your potential employers or credit facilitators, the same is not so when applying for teaching credentials or state licenses. You will have to disclose your past DUI convictions. It is also worth noting that a successful expungement does not affect the DMV’s decision to suspend or revoke your license. You will serve the suspension or revocation terms as previously directed. However, in most cases, the probation period is longer than the time your driving license is suspended. Therefore, your driving privileges will be restored after the petition is granted.

Probation, therefore, is at the heart of an expungement petition. In most cases, many drivers serve a probation sentence of a period between one to five years, and the question that arises for many during this period is, “Can I reduce the time?” Yes, you can. The courts can grant an early termination of your DUI probation provided that you:

  • Complete the probation terms- that is, you have paid all restitution fees, attended all court-mandated classes, and paid all fines in full.

  • Have met circumstances that in the court's opinion justifies an early termination. Such conditions include advancing at your workplace, traveling to visit family members who are unwell or securing employment.

It is not a guarantee that applying for early termination is always successful. The matter remains at the judge's discretion guided by the law. In most cases, they need to be satisfied that you are indeed following the terms of your probation. It, therefore, should not come as a surprise when a judge denies the petition so that you serve a full probation sentence.

Second DUI Arrests while on Probation for the first DUI Offense

Some drivers find themselves arrested for a second DUI violation while serving probation time for their first DUI offenses. In such a situation, your case is then handled from three avenues. They involve:

  • You will have a probation hearing that will determine the extent of the violation of your probation terms

  • The prosecution will bring forward second DUI charges against you.

  • You will have a DMV hearing that will determine whether to suspend or revoke your driving privileges.

Most jurisdictions in California recommend a jail sentence of sixty to ninety days in prison for the probation violation. In Orange County, you can serve a minimum of 120 days to a maximum of 180 days for the breach. Moreover, your license will be suspended for two years with the eligibility for a restricted license. You can only access the restricted status on your license after one year of serving your suspension.

Jail sentencing is not the only punishment you risk facing for the violation. A fine totaling to $2,000 may be imposed on you. Further, you may be required to attend an 18 month-long alcohol program, as well as complete your service in the Mothers Against Drunk Driving (MADD) forum. You are also looking at a possible five years in probation should the prosecution agree to the terms.

It is worth noting that the punishments mentioned above are added to the terms of your first DUI probation. You will be expected to honor the terms of your first probation, that is, pay the fine as directed by the courts, which range from $390 to $1,000 as well as installing an Ignition Interlock Device, among other court pronouncements.

Legal Representation in Second DUI Cases

Now that you have seen the penalties you stand to face and the implications of a second DUI conviction. It is in your best interest to understand why an attorney is vital for your case. Their role is clear; defend you in the second DUI matter in both the criminal trial and in the DMV license suspension hearing. The ultimate end for an attorney’s work? Seeking a dismissal of the DUI case in the court process, and defending you against a license suspension in the DMV proceedings.

A legal strategy is born of targeted efforts to which we have analyzed below. Therefore, It is best to know what to expect from your defense lawyers and the services they offer.

Collection and the Analysis of Evidence

Defense attorneys also collect evidence in your defense. The evidence is inclusive of eyewitness accounts, police footage, and videos from traffic cameras as well as vehicle cameras. All this information paints a picture of the events that transpired in the DUI case to which your attorney will use in your defense.

Legal Work

It is upon your attorney to seek legal provisions to defend your position. The research should include arguments that are factual, procedural, and within the law. A reasonable attorney will, therefore, undertake the proper research for your case.

Negotiators in Plea Bargain Sessions

Most DUI cases do not go to trial. The matters are resolved in plea bargain negotiations with prosecutors. Such talks can only be fruitful if your attorney is capable of negotiating a fair and good deal. They should be good at talking with the prosecution as they are in trial. If so, you may have your DUI charges dropped or reduced.

DUI charges are often procedural matters in that most cases are dismissed because the arresting officers acted procedurally. The lawsuits too are set aside due to lack of evidence to back up the charges brought forth against you. Most DUI matters do not go to trial and are often dismissed at the pre-trial stages. Most attorneys see these negotiations through, in favor of their clients avoiding litigation.

There are specific reasons that influence a prosecutor or a judge’s decision to have DUI charges dropped. They are inclusive of the following:

  1. Lack of Probable Cause by the Police

    Police officers are required to stop you if you pose a danger to yourself or other motorists. This action is referred to as probable cause. Acts such as running a red light, changing lanes indiscriminately, driving above the speed limits or failing to adhere to other traffic laws are the only instances a police officer can stop you. If the officer acted on a tip-off or stopped you for any other reason other than the above, it can be argued that they lacked probable cause. Such actions can lead to a drop in the second DUI charges against you.

  2. Illegal Sobriety Tests

    Field Sobriety Tests are offered to test the level of impairment. They are coupled with BAC tests to determine the actual blood alcohol content in a driver’s system. The analysis include a Horizontal Gaze Nystagmus (HGN) that is 88 percent accurate, One-Leg Stand (OLS) that is 83 percent accurate, and Walk-and-Turn (WAT) with an accuracy level of 79 percent. In California, FSTs are optional. Therefore, you can fail to take the Field Sobriety Tests, and no penalties will be imposed on you.

    With the above tests, it is difficult to get a definitive BAC level. In some circumstances, there could be specific reasons that may cause you to fail the tests. Thus, you have the option of using alternatives to Field Sobriety Tests. They are the blood test and the breath test. The breath test involves measuring your BAC content from your breath.

    On the other hand, the blood test includes measuring your blood for an alcohol reading. These two tests are also optional. However, there are repercussions to this decision. You could be arrested for refusing to cooperate with the arresting officer or the party administering the test.

    Before any tests are carried out, the arresting officer needs to explain to the driver their rights and what tests they are about to carry out. They should only proceed with the tests if you give the go-ahead. Failure to which, the results of the tests will be in contention. It is easy for your attorney to question the validity of the tests if they were administered without due process. This finding could have the case thrown out or be used as a bargaining chip in plea bargain negotiations.

  3. Unconstitutional Stops and Searches

    A stop is deemed unconstitutional if it was not advertised, among other requirements. It is the responsibility of traffic officers to inform the public of any scheduled sobriety checks. Failure to do so will render any actions by the officers a violation of the drivers’ Fourth Amendment rights.

  4. Procedural Errors

    Police officers do make particular errors that warrant a dismissal of a case. Cases of conflicting information in police reports, contamination when carrying out blood tests, and mismatched blood samples in the labs, affect the quality of the evidence brought in court against you.

  5. Inaccurate Results from the Tests

    Breath and blood tests are less than 100 percent accurate. However, certain factors aggravate the inaccuracy of the readings and thus leading to unreliable results. If faulty gadgets were used, the results of the tests could not be trusted. Further, poor lighting can affect how the tests are administered or how the devices are used. All these issues compromise the quality of the test results. As such, the evidence in your second DUI case is questionable.

    The BAC readings can also be affected by your diet or medication. Medical conditions such as diabetes have dietary recommendations of high-protein and low-carbohydrate intake. These diets give a falsely high BAC reading, which can be interpreted as alcohol-related. Some medication produces similar effects. Traffic officers lack the training and devices that would differentiate diet or medication-based results from alcohol results.

Get In Touch With an Orange County DUI Attorney Near Me

You risk adding another charge on your criminal history due to your first DUI charge, paying hefty penalties, and possibly serving a jail sentence if convicted of a second DUI offense. All these are possibilities if you are convicted of a second DUI charge. Having legal representation helps avoid or reduce these adverse effects on your record. Our team is experienced in handling DUI charges. Call us at 714-820-9592, and we will be glad to help you out with any DUI queries you may have.

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