DUI is a serious offense that involves operating a vehicle while exceeding the legal blood alcohol content limit. In California, drunk driving is a “priorable” offense. This means your prior convictions for DUI or other drunk driving crimes will affect your current case. You could be arrested and charged with a second DUI if you have a prior conviction for wet reckless, DUI causing injury, and out-of-state convictions for similar offenses.
If you face a conviction for a second DUI offense, the consequences you face, from jail time to fines and license suspension, increase dramatically. Due to the damage a drunk driver can cause on the roads, prosecutors and judges are not lenient with repeat offenders. Therefore, you must put up an aggressive defense against these charges. Navigating the charges for a second DUI offense will be easier when you have the expert guidance of a DUI defense attorney.
At California Criminal Lawyer Group, we understand that a second conviction under DUI laws could impact your life. Our attorneys will attack the prosecution’s case against you from all angles to ensure the best possible outcome. We serve clients seeking legal guidance to battle DUI charges in Anaheim, CA.
What is a Second Offense DUI under California Law?
DUI is a priorable offense. This means that your previous convictions within ten years will affect the sentencing and punishment of the current offense. In California, your DUI is treated as a second offense if you have any of the following prior convictions in at least ten years:
- Driving with an excessive blood alcohol content under California VC 23152(b)
- Wet reckless under VC 23103.5
- Driving under the influence under VC 23152(a)
- Vehicular manslaughter while intoxicated
- Underage DUI
- Other out-of-state DUI convictions
Under California Vehicle Code 23152, the prosecution must prove the following elements to secure a conviction for your second DUI:
- Driving a vehicle. You cannot face a DUI conviction unless it is clear that the vehicle is moving. Sleeping in a vehicle while intoxicated is not an indication of DUI.
- Your BAC exceeded the legal limit at the time of driving.
- Your conduct was impaired from alcohol or drug use.
- You have a prior conviction for any of the above.
Criminal Penalties for a Second DUI offense
A second DUI offense with no injuries is a misdemeanor. A conviction for the offense attracts the following legal penalties:
- A jail sentence of up to one year. This is double the maximum amount you could serve for a first offense.
- Paying a maximum of fines and penalty assessment of up to $2,000
- Three to five years of misdemeanor probation
- The requirement to enroll in DUI school for up to 18 months
- Excessive points on your driver’s license. The points you receive on your driver’s record for driving offenses could affect your vehicle insurance.
- A second DUI conviction remains in your record for ten years and can be used to enhance your penalties if you commit another DUI offense within this time.
- The court triggered a two-year driver’s license suspension under California VC 23152
In addition to the above legal penalties, you need to know that the judge has the discretion to impose the following additional penalties:
- Inpatient or outpatient alcohol rehabilitation programs
- The requirement to install an ignition interlock device. An ignition interlock device is a breathalyzer placed on the dashboard of your vehicle. Before your vehicle starts, you must blow in an alcohol-free breath.
Aggravating Factors for a Second DUI Conviction
Aggravating factors are circumstances and facts that increase the severity of your criminal act and the penalties. The following are some aggravating factors to your second DUI offense:
- Minor passenger. Drunk driving is dangerous behavior for the driver, passengers, and other road users. Having a child under fourteen years in your vehicle while driving under the influence of alcohol is considered an act of child endangerment under California Penal Code 273(a). The minor passenger enhancement increases your jail sentence by up to ten days for a second DUI offense.
- Causing an accident. The court will impose a harsher sentence if you cause an accident and injuries to third parties during your second DUI. Additionally, you could face felony charges if the accident caused serious injuries or death. When the DMV suspends your license for a second DUI with injuries in California, you must wait longer to acquire a restricted license.
- Being an underage driver. California law has zero tolerance for underage drinking. Drivers under twenty-one years will face a DUI charge for operating a vehicle with a detectable BAC. An underage driver who receives a second DUI conviction will face a harsher penalty, including jail time which is not a penalty in the first conviction.
- Excessive Speed. When you face an arrest for a second DUI while driving up to 20MPH more than the speed limit, the court may impose a 60 days additional jail sentence.
- Having a BAC of 0.08% or more. While driving on a standard driver’s license, you will face an arrest for DUI if your blood alcohol content is 0.08% or more. However, if your BAC was 0.015% or more at the time of your second DUI arrest, the court will increase your jail sentence and order that you install an ignition interlock device on all your vehicles.
- Failure to submit to the chemical tests. During and after your arrest for drunk driving, the police officers cannot force you to submit to a breathalyzer or blood test. However, failure to take these tests could have serious consequences following a DUI conviction. Failing to take a chemical test for a second DUI attracts up to 96 hours of additional jail time and a driver’s license suspension of up to two years. Additionally, you may not be able to obtain a restricted license.
- Second DUI while on probation. In California, first DUI offenders will receive probation instead of jail time. Whether you face a conviction for DUI or a wet reckless plea deal, the court will require that you refrain from drunk driving during probation. An arrest for a second DUI while on probation attracts a mandatory one-year driver’s license suspension.
Administrative Penalties for a Second DUI Offense in California
Two departments will handle your case when you face an arrest for drunk driving in California. The criminal justice system and the DMV impose various penalties for your conduct. After an arrest, the arresting officer takes away your license and issues a pink notification. This notification is a temporary license, and you can only use it for up to thirty days.
When the Department of Motor Vehicle learns about your arrest for a second DUI, they will attempt to suspend your license. From the date of your arrest, you have up to ten days to schedule a DMV hearing. At this hearing, you have the opportunity to fight the license suspension. A DMV hearing takes place at the DMV office and is less formal when compared to your criminal court proceeding. While the burden of proof still lies on the prosecution to prove that you were drunk driving, the aim of the hearing is not to decide on your guilt.
Some of the rights that you will enjoy at the DMV hearing include:
- Right to have legal representation. A skilled attorney helps you navigate through the DMV process and convince the Hearing officer that you did not engage in drunk driving behavior.
- A right to be present at the hearing. If the motor vehicle Department wants to hold your hearing on the phone, you have a right to decline and request an in-person one.
- Right to cross-examine witnesses, including the arresting officer
- Right to present evidence in your favor
When deciding on the outcome of your DMV hearing, the court considers the following factors:
- Presence of a probable cause for your DUI stop
- Whether or not your arrest was lawful. Under California DUI laws, a lawful arrest is one where the officer has probable cause to believe that you were drunk driving. Additionally, the traffic officers must follow the right procedure for the arrest.
- The results of your blood and breath tests
- There was a basis for your refusal to submit to chemical tests.
To win your DMV hearing for your second DUI, you must present relevant arguments backed up by strong evidence against any of the above points. At the end of a DMV hearing, the hearing officer makes one of these two decisions:
- If you lose the hearing, the DMV suspends your license for up to one year.
- A win in the DMV hearing means you retain your driving privileges unless you face a conviction for DUI in criminal court.
Scheduling a DMV hearing is key after a second DUI arrest. Even if you do not win the hearing, scheduling it in time offers these benefits:
- Avoid automatic suspension. Failure to schedule a DMV hearing or doing it after the ten days has elapsed will result in an automatic suspension. However, a hearing allows you to fight for a better outcome.
- Buys you some time. With the high number of DUI cases in California, the Department of Motor Vehicle is very busy. Therefore, you may need to wait a while before appearing for the DMV hearing. While you wait for the hearing, you will retain your driving privileges. This gives you time to gather more evidence for a successful DMV hearing.
- Chance to collect evidence from prosecutors. In most cases, prosecutors will present all the evidence of your DUI at the DMV hearing. This could help your attorney understand the prosecution’s case and use this information to fight your DUI case.
It is important to understand that although the DMV hearing is separate from your criminal court proceedings, a positive DMV hearing outcome could benefit your DUI case.
Restricted License for a Second Offense DUI
A second DUI conviction attracts several mandatory punishments that are more severe and take more time than for a first offense. The most devastating consequence of a second DUI conviction is the two-year driver’s license suspension which the DMV imposes when you lose your DMV hearing. While there is no room for negotiation with this suspension, you can regain partial driving privileges by obtaining a restricted license.
You can apply for a restricted license only when your DUI involves alcohol and you submit to the breath and blood tests. However, you must serve at least 90 days of your suspension before applying for your restricted license. In addition to waiting for the specified period, you must:
- Pay the reissuance fee of $125
- Present proof of enrollment in DUI classes
- Provide proof of financial responsibility
- Install an ignition interlock device
Although you can continue to drive your vehicle after receiving the restricted license, your ability to drive is limited to school, work, or any other court-ordered program. Additionally, driving a vehicle not installed with an IID will revoke your license for a longer period.
You can avoid losing your license and going through the tiring process of obtaining partial privileges by seeking competent legal guidance. An attorney who understands California DUI laws can guide you through your DMV hearing to convince the hearing officer that you did not engage in DUI.
Probation for a Second DUI in California
The maximum jail sentence for a second DUI conviction in California is one year. However, you can avoid jail time and receive probation even after your second offense. Probation for a second offense DUI often lasts for three to five years. When pronouncing your sentence, the court imposes a variety of conditions, including:
- Avoid committing other crimes. Although probation is served from home, a violation of the probation by committing additional crimes will result in penalties for that offense and possible jail time for the probation violation.
- You cannot operate a vehicle with a detectable BAC. When you receive a probation sentence for your second DUI conviction, you enter an agreement to adhere to the zero-tolerance law. If your BAC at a DUI checkpoint or random testing is measurable, you could face an additional DUI charge.
- Installation of an ignition interlock device. As part of your second DUI probation, you must install an ignition interlock device for all your vehicles. The IID device helps ensure you do not operate your vehicle with a significant BAC.
- Payment of fines. If you escape jail time for your second offense DUI, the court could sentence you to probation and fines. One of the requirements for probation is that you pay all your fines or set up a payment plan to do so.
- Submit to chemical tests. While on probation for a second DUI offense in California, you cannot refuse to submit to chemical tests when a traffic officer suspects that you were drunk driving.
Long-Term Consequences of a Second DUI offense
In addition to the criminal and administrative penalties accompanying a conviction for a second DUI in California, the conviction is a permanent record. Having two DUI convictions within two years could impact your life in the following ways:
- Rejection from university or college. If you are an underage driver, a second DUI conviction could impact your chances of acceptance at good universities or colleges. When your application is accepted, you may find it difficult to acquire financial support from the state.
- Loss of employment opportunities. Today, most employers will do a background check on you before considering you for a job in your company. A second DUI offense in ten years could be viewed as disregarding the law, and the employer could use your conviction to deny you the opportunity.
- Rejection of loan applications. Like employers, money lending firms will want to look into your criminal record when offering you a loan, and such a record could have negative consequences.
- Multiple points on your record. Every time you face a DUI conviction, the Department of Motor Vehicle adds several points to your negligent driver record. This could affect your vehicle insurance premiums.
You can avoid these harsh consequences by consulting a skilled DUI attorney to help you fight the second DUI charge.
Legal Defenses Against a Second DUI Charge
California DUI laws are very strict. Therefore, prosecutors use extreme measures to prove their case and secure a conviction against you. While a second DUI charge is severe, it is possible to fight the charge and avoid a conviction or secure a plea deal with less serious penalties and consequences to your life. Your attorney can help you argue your case using the following defenses:
Physical Signs of Intoxication are not Sufficient to Prove DUI.
A second DUI arrest and conviction begins when a traffic officer stops you on suspicion of drunk driving. When you stop your vehicle, the officer will observe you for signs such as red, watery eyes, flushed face, or unsteady gait. Although these signs may be used as a basis for further investigation, they are not enough to conclude that you were drunk driving. Signs of fatigue, eye irritation, or allergies may imitate those of intoxication.
Unlawful Traffic Stop
A traffic officer cannot just stop your vehicle at any point on the road to begin a DUI investigation. The DUI stop must be lawful. A DUI stop is considered lawful when an officer has probable cause to stop your vehicle. Some of the conduct that could cause the officer to form a reasonable suspicion that you are DUI include speeding, swerving, dangerous change of lanes, and other traffic violations. If you can argue that the DUI arrest was unlawful, any evidence collected at that point is not admissible in your case.
The process of alcohol absorption in the body is gradual and does not stop when you stop drinking. A breath test at the DUI stop is usually the last test of the DUI investigation before an arrest. Therefore, the time between the DUI stop and fifteen minutes of the field sobriety test is enough to raise your BAC above the legal limit. You are not guilty of DUI if your BAC is 0,06% or 0.07%. Therefore, you could argue that your BAC increased during the arrest. Although this defense may not always help you avoid a conviction for a second DUI offense, it can help you avoid the aggravating factor of excessive BAC in your case.
You could not face a DUI conviction if you were not operating a vehicle. Therefore, no driving defense is one of the strongest arguments for your second DUI case. You can use this defense when:
- An officer finds you asleep in a vehicle, but the vehicle wasn’t running
- You own a vehicle, but another person was driving
- The police rely on an anonymous tip, then come to your home and find you intoxicated
- The police officers arrive at an accident scene, and your BAC exceeds the legal limit.
The breathalyzer device cannot differentiate alcohol from alcoholic drinks from other sources. Therefore, you can argue that medical conditions like diabetes and hypoglycemia falsely inflated your BAC. This defense helps challenge the accuracy of your BAC results which is a vital piece of evidence in your case.
Find an Experienced DUI Defense Attorney Near Me
You face an arrest for a second DUI if you drive under the influence of alcohol or drugs and have a prior conviction for DUI, wet reckless, or a related offense within the past ten years. A conviction for a second offense DUI means that you will face a longer jail sentence, increased fines, and a longer driver’s license suspension period by both the DMV and the court.
Fortunately, not all arrests for a second DUI end in a conviction. You can explore many legal options, including defending the case for dismissal, reducing penalties, or even negotiating a plea deal for a lesser offense. If you or a loved one is dealing with a second DUI offense in California, you must hire and retain the services of a skilled DUI Defense Attorney.
At California Criminal Lawyer Group, we have the knowledge and experience you need to build a solid defense against your charges and avoid the harsh consequences that accompany a conviction. If you or a loved one battle second DUI offense charges in Anaheim, CA, you would need our expertise by your side. Contact us today at 714-766-0965 to discuss your rights and legal options confidentially.