Driving while under the influence in California is considered a priorable offense. Therefore, if you are arrested for driving under the influence of drugs and alcohol or with a BAC level of 0.08% or higher (for persons over 21 years), 0.04% (for commercial vehicle drivers), and 0.01% (for underage persons) for the third successive time within ten years, you will be charged with a 3rd DUI offense. The consequences of multiple DUI offenses are harsher. The Orange County DUI Defense Lawyer is the best person to contact after an arrest because they will guide you to understand the administrative penalties, misdemeanor penalties, alternative sentencing, and Expungement.
Penalties for Third DUI Offense
The punishment for this type of offense come in various categories:
- Administrative penalties.
For drunk driving crimes, it is not mandatory for one to be found guilty to face the consequences. Additionally, the penalties go beyond monetary terms. In case you have two prior drunk driving convictions within the last ten years, and you are pulled over again for the same offense, your driving privileges will be administratively suspended for one year.
Failure to comply with California implied consent laws, for instance, by refusing to take a chemical test will lead to suspension of your license by the DMV for three years. Remember that the moment the officer on your case files a report to the DMV, after thirty days, your driving license will be automatically suspended. Avoid giving up your driving privileges before the hearing of your case by filing for a DMV hearing, which helps put the license suspension on hold until the case is heard and concluded.
- Misdemeanor penalties.
If the drunk driving didn’t result in injuries or fatalities, it would be deemed a misdemeanor. The penalties for this conviction include:
- At least 120 days in jail and a maximum of one year, or
- Three to five-year misdemeanor probation from the court once you have completed your jail term successfully,
- Fines and penalties that add up to approximately two thousand, eight hundred dollars ($2800) based on the severity of the offense and the decision of the jury or judge.
- Mandatory drug/alcohol program for a period of eighteen to thirty months.
- Having an ignition interlock device (IID) installed in your car for 24 months.
- Mandatory Penalty Increments.
The above-listed penalties will be increased if any of the following occurs:
- Refusal to take a BAC test - For this enhanced DUI, you get an extra ten days in jail.
- Child in the car - In case you were carrying a child at the time of DUI arrest, thirty days are added on your jail term.
- Driving at a speed of 20mph above the standard speed limit - Here you will serve an extra 60 days in custody.
- Injury or fatality - In case of intoxication or impairment, while driving led to death or damages, you will get an additional one year in jail for every victim of your actions.
If a defendant is lucky enough to find an experienced attorney, the attorney can negotiate with the office of the District Attorney to have the charges reduced. Instead of having to pay extra fines and serve an additional jail term, a convict might be sentenced to house arrest or community service. For instance, if you have been punished for 120 days in county jail, you can exchange them for 30 days of house arrest. Instead of attending a 30-month alcohol or drug program, you can choose community service.
Another alternative sentencing that can help you meet the court order requirements is the jail-alternative work program. Also, when a convict behaves very well during the time they are in custody, their good behavior credit score increases, thus leading to the lowering of the sentence. Not every judge can give you these jail alternatives unless you have a great attorney with experience in defending 3rd DUI cases.
In Orange County, the court might also require you to show up in court five to six days a week. It is an indicator that they are very strict on punishing DUI convictions because if you get this form of sentencing, it will be impossible or difficult to go to work.
Additional Penalties for 3rd DUI Offense
If you are arrested for driving while drunk and in the process caused an accident that led to death or injuries, you will be sentenced under the Three Strikes Law. The law focuses mostly on offenders who have two prior felony DUI offense convictions and have been convicted for the third offense.
If found guilty under the Three Strikes law, the penalties are twenty-five years to life imprisonment, which is mandatory or automatic. In the event the defendant is lucky, he or she might get parole but only after serving the twenty-five-year sentence.
Before this law adopted Prop 36 in the year 2012, a lot of multiple DUI offenders were sentenced to life imprisonment, whereas they didn’t commit very violent DUI offenses. The Three Strikes Law applies in 3rd DUI offenses in the following incidences:
- The first incident is when one has more than three previous DUI convictions in the last 120 months. If they’re all wet reckless, then the next one will be sentenced under the Three Strikes Law.
- The next scenario is where the offender commits Vehicular manslaughter or second-degree murder while driving under the influence.
- If you are a habitual offender who has been convicted of a felony DUI charge in the past and it still appears on your criminal record, the Three Strikes Law will be used to sentence you even though you didn’t cause an accident, injuries, or fatalities.
Is there a Chance for Retaining Driving Privileges after the Third DUI Offense?
No. The only way to escape license suspension or revocation after a third DUI offense is by avoiding conviction or getting the discovery against you dropped. If there were procedural errors, you might also retain the license because the charges will be dismissed.
What Happens to Your Driving Privileges After a Third DUI Offense Conviction?
License repeal or suspension can occur when you lose a DMV hearing or get convicted for drunk driving in court. The revocation means that the driver’s license will be held by the court until you complete a DUI school program. On the other hand, suspension means you lose your license until the designated duration is over.
If you are found guilty of this type of offense, your license is suspended for a period of one to three years. Not everyone being charged with 3rd DUI offense loses their driving privileges. Offenders who submitted a chemical test and have installed an ignition interlock device in their vehicles can retain these privileges for two years.
However, for offenders who defy California implied consent, the suspension is three years. These people cannot drive until this period is over because they are not even allowed to be issued with a restricted license that enables offenders to keep their license as long as they have installed an IID.
Probation Violation in California
If you are wondering what happens when someone is arrested for the 3rd consecutive DUI within 120 months while still serving probation for the 2nd DUI conviction, the answer is that the probation will be revoked. Also, the third DUI penalties will be more severe. Probation violation occurs if you fail to honor the conditions that were set by the court and any other law. The punishment for this violation include:
- Disqualification from Expungement
- Extra fines
- New jail term and probation
Aside from driving while under the influence, other conditions of probation that can be violated are:
- A convict shall not refuse to take a chemical test of the blood, urine or breathe upon a subsequent DUI arrest
- The person shall not commit any other criminal acts
- You shall attend alcohol anonymous gatherings
- You will take part in Mothers against Drunk Driving programs
- You would pay restitution if you caused an accident during the time of the arrest
When found in violation of the above, the possible outcomes are:
- The court finds you not in violation of probation “fails to violate you.” Those who are lucky to get this result will continue serving their previous probation plus they are eligible for Expungement once the probation ends.
- The next outcome is the court violating and reinstating you. In this, the court reinstates your probation without considering the violation. The prior provision maintains the same way, but if you are restored and the judges decide to modify your probation, the probation is changed. It means the preceding terms and conditions are modified.
- The third result of violating probation when you appear before a court is “violate and revoke.” In this case, the judge revokes your probation, and you might end up being sent to jail and probation canceled at the end of your sentence, or sent to prison and continue probation after completing your sentence.
Expunging Third Time DUI Offense in California
California Penal Code 1203.4 authorizes the Expungement of one’s criminal record. Remember a 3rd DUI conviction will affect your criminal record forever in addition to denying you job and college opportunities. Having this record cleared if you have already been convicted can be helpful. However, the question is, how do you do it?
First, note that not everyone is eligible for a drunk driving conviction Expungement. To qualify for this:
- You must complete the probation that was ordered by the court during conviction
- You didn’t serve in jail and instead served your sentence in state prison
- You served time in state prison but after the adoption of Prop 47
How Expungement Helps Clear Your Record
Once you have completed probation, you can petition for Expungement. For the petition to be granted, however, you must reverse your guilty plea to not guilty plea or have a judge set aside the ruling that was made by a jury if you went for a trial during conviction.
Benefits of Expungement
The majority of employers look at the prospective employee's criminal record to find out if they have a clean record or not. If you have a criminal history, then you are not likely to get employed. However, once the record has been cleared, these potential employers cannot see this criminal history anywhere, which means the chances of obtaining gainful employment increases.
Although some employers might ask you if you have ever been convicted of any crime, even if they find out your record was erased, it is not going to affect you in any way at work.
Can Expungement Help you get back your Driver’s License?
In third DUI conviction, Expungement cannot help restore your driving privileges unless the suspension is over. The problem is that in 3rd DUI conviction, probation lasts from three to five years, which is more than the period of license suspension. By the time the criminal record is cleared, the license will have been restored. If the driver’s license was permanently revoked, then even after Expungement, your driving privileges cannot be restored.
Will Expungement affect Penalties for a Fourth DUI Offense?
You cannot afford to assume that because your criminal record for a third drunk driving conviction has been cleared, you are free to drive while intoxicated. DUI is a priorable offense meaning that previous convictions will make the penalties for a later DUI conviction more severe even if you were erased for the previous ones.
Is it Possible to get Expungement after a Court Orders The Termination of your Probation?
Yes. Expungement can be granted to a person as long as they have completed their probation. So, whether the probation was terminated because of an early court order or because it came to an end, you still qualify for Expungement. For instance, if you the court-ordered formal probation of five years, but after two years they terminate the probation, then you are eligible to erase your criminal record.
Not everyone gets an early termination of probation by the court. To be granted a petition, you must:
- Have completed the terms and conditions of probation, such as paying the fines and restitution fees.
- Be in these situations:
- Wants to travel to see an ailing relative or for work
- You have secured employment
- You need to advance at work
Early termination of probation is not something you can get quickly since the court wants you to drive for as long as possible without being impaired by drugs or alcohol.
Restricted Driver’s License in Third DUI Offense
Conviction of a third DUI offense in California leads to license suspension or revocation for up to three years. It is a huge blow, especially for the offenders with sick family members or those that drive to work or school daily. They are forced to depend on other people for this period. However, during the six months or one year of driving privileges revocation, you can make an application for a restricted license. To be eligible for a restricted license, one must have the following:
- Proof of enrollment in an eighteen or thirty-month multiple offender program
- Enter into an agreement promising to complete the multiple offender program
- Provide evidence of installing an ignition interlock device (IID) plus entering into a contract for retaining the IID for the duration of your driver’s license suspension
- Provide proof of financial responsibility from your vehicle insurance company
- You pay the restricted driver’s license fee to the Department of Motor Vehicles
What the Prosecution must prove in California 3rd DUI Case
If you decide to go to trial instead of a plea bargain, then the prosecution must prove the charges beyond a reasonable doubt.
Elements the Prosecution must prove
- You were operating a motor vehicle
Most people think it is possible to be arrested for a DUI offense only when someone is driving. However, even though you were not driving, but the prosecution can prove you were operating or in physical control of a motor vehicle while impaired, it is enough evidence to determine drunk driving. You will be found guilty if the prosecutor can show that you were on the driver’s seat, you had the car keys, you were asleep or awake, the car engine was running, and the headlights were on.
- The offender was under the influence
The prosecution proves this element by showing the defendant was impaired by drugs or alcohol at the time of arrest, or he or she had a blood alcohol content (BAC) of .08% for adults or a BAC of .01% or higher for underage drivers.
How to get a Third DUI Dismissed
The same legal defense that is used to get the first DUI dismissed can be applied to multiple DUI. The prosecution can dismiss your charges or lower them due to the following reasons:
- Lack of reasonable suspicion for a traffic stop
One is only supposed to be stopped on a DUI checkpoint that adheres to California Law. So, if you were randomly stopped by the arresting officer so that they can find out if you were drunk or not, then there was no probable cause for the stop.
- No evidence that you were in actual physical control of the vehicle or driving
In the event of an accident and no law enforcement officer was around, when he or she arrives, they must observe any intoxication symptoms and confirm the driver of the car. If no witness records statement and the officer cannot identify who was driving, then they will be no probable cause to arrest anyone.
- The vehicle was not in motion
For one to be convicted of a DUI, the vehicle must have moved even an inch. If you were asleep in the driver’s seat, the car could be deemed not to have moved. However, if the engine was warm, the gear was in the drive, or the vehicle was at the scene of the accident and damaged, and there was no alternative driver, you might be convicted if you were impaired at this time. The only thing that can change this is showing that you got intoxicated after the accident had already occurred.
- No evidence of intoxication
BAC results are often used to show that you were driving under the influence. The prosecution will dismiss the charges against you if the BAC test result is insufficient and the arresting officer cannot give reasonable suspicion that you were intoxicated.
- You were not aware you had drugs in your blood
If you can show the prosecution that someone slipped a drug in your food or drink without your knowledge or permission, which led to impairment while driving, then you cannot be convicted of drunk driving.
- A blood test was not correctly administered
Specific regulations govern how proper blood tests must be conducted. They include:
- An authorized technician must draw the blood sample.
- Non-alcohol based sterilizer to be used on where the blood is to be drawn.
- The sample to be correctly identified and stored.
If any of these regulations were violated, the prosecution would drop or reduce the charges.
What to do After a Third DUI Arrest
The majority of people pulled over for being behind the wheel while intoxicated for the third time fail to understand that their future criminal record and freedom are on the line. The office of the District Attorney begins to build a case against you immediately after the arrest and what you do during this time is paramount to the type of charges you will face and if you will be convicted or not.
After an arrest, make sure you don’t speak to the police or arresting officer. You might think that explaining yourself to the police might make them understand your situation, but in the process, you end up giving them more evidence. The officer is supposed to recite the Miranda warning to you, which explains your rights. One of these rights includes remaining silent until your attorney is present.
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