Driving under the influence of alcohol or any drugs, legal or illegal, can be charged either as a misdemeanor or felony in California. Committing a DUI offense with a prior DUI conviction on your record increases the punishment and penalties depending on the circumstances of your previous sentence. It is of great importance that you understand what happens when facing a 2nd offense DUI charge. The DUI Defense Attorney is a second to none law firm in Van Nuys, and is specialized in all types of DUI cases and has helped many drivers in similar situations. This article will help you understand the details surrounding a 2nd DUI offense.
Legal Definition of a “2nd DUI Offense” in California
A 2nd DUI offense means that you have a prior wet reckless or DUI conviction. It is a misdemeanor crime, which means you are entitled to a DMV hearing within ten days from the date of your arrest, to keep your license from being suspended, and a jury trial before you are convicted of the crime.
For you to be charged with a 2nd DUI offense, the prosecutor must reasonably show that you were:
- Driving negligently, and that
- Your BAC (Blood Alcohol Content) was 0.08% or higher while driving or, you were under the influence of drugs.
Note that a 2nd DUI offense is treated as a misdemeanor offense if there are no other aggravating factors. If you caused injury or death to another individual, or your prior conviction was a felony DUI, you violate Vehicle Code 23513 VC, and you will be charged with a felony DUI or possibly “Watson Murder” if someone was killed.
The prosecutor, arresting officer, and the prosecutors “expert” witness have to show beyond a reasonable doubt that you were driving under the influence. Also, it is a fact that sometimes the BAC tests could be off due to certain conditions during the test. For example, you might have used mouthwash before the test, or you may have used medications that affect the breathalyzer.
Prosecutors can be very intimidating during trials, and having an experienced attorney handle your case is necessary. They can help get the charges reduced, get an acquittal or have the case dismissed altogether
What Happens When You Get a 2nd Offense DUI?
DUI offense is a “priorable” criminal offense, and getting a 2nd consecutive DUI offense has far more severe consequences than the first. Depending on the nature of your previous conviction and the current case, the prosecutor can choose to treat your case as a misdemeanor or a felony.
The DMV Hearing
On arrest, the DMV will seek to suspend your license for a period of one year if you have a prior DUI conviction on your record within the last ten years. You, however, have the right to request a DMV hearing; preferably with representation by a qualified DUI defense attorney within ten days from the day you were arrested to avoid the suspension. Once the ten days period has elapsed, your license will be automatically suspended. A license suspension can also be triggered through a DUI conviction by a California court under VC 23152(a) or (b) for two years for a 2nd DUI conviction. Only the DMV has the authority to suspend your license upon notification by a judge if you are convicted of the crime.
However, if on the submission of your chemical test, the results show that your BAC was below 0.08%, your license will not be suspended as per an APS (Admin Per Se) violation.
What Happens if I Win or Lose a DMV Hearing?
You can choose whether to have a DMV hearing or not, whether to have an attorney represent you at the hearing or not, but it is a requirement that either you or your attorney be present at the hearing.
A win at the DMV hearing is independent of the DUI court proceedings. The DMV can only act upon your driving privileges and nothing else concerning your DUI charges.
If you suffer a defeat at the DMV hearing, you have the right to renew the hearing within a period of one year from the date of your arrest.
Restricted Driver’s License
The DMV can issue you with a restricted license if you show that you installed an IID (Ignition Interlock Device); a car breathalyzer that prevents drunk driving by controlling the ignition system of your vehicle based on your BAC. This device is installed at your own cost, and you are required to take a chemical test after 90 days. Note that if you decline to submit a chemical test, your license will be revoked for two years and no right to a restricted license during the suspension.
Penalties for a California 2nd Offense DUI
The penalties for the 2nd DUI misdemeanor offense is more severe compared to a first time DUI and depend mostly on the circumstances of each case. However, the penalties for a 2nd simple DUI are as follows:
- Three to five years of probation
- Four days to 12 months in a California county jail
- A fine of between $390 - $1,000 and approximately $1000 assessments penalty
- California court-approved DUI School for 18 or 30 months
- One year IID installation on every vehicle you operate.
- Two years license suspension liable to be converted to a restricted license after 12 months. Alternatively, acquire an IID restricted license immediately, which gives you the right to drive anywhere with an IID installed vehicle.
Conditions for DUI Probation
For a 2nd DUI offense in California, the court may impose the following terms for probation:
- You shall not commit additional crimes.
- You shall not decline to take a chemical test of your blood, breath, or urine if you have been arrested for DUI again
- You shall entirely refrain from driving with any amount of alcohol in your system.
- You shall attend Alcoholics Anonymous (AA) or Narcotics Anonymous (NA) meetings
- You shall participate in the Mothers Against Drunk Driving (MADD) Victim Impact Program.
- If you caused an accident while driving under the influence; restitution
- The installation of an IID for a maximum of three years on any car you operate or own
Aggravating factors of a 2nd DUI
Aggravating factors are those elements if present in your 2nd DUI offense will increase your penalties and punishment. Keeping in mind that you are facing a 2nd DUI conviction, your criminal record, and the facts surrounding your DUI offense will enhance the punishment you receive for any of these aggravating factors:
- If your BAC while driving was 0.15% or higher
- You refused to have a chemical test
- You caused an accident
- You are a minor under the legal drinking age of 21 during your DUI
- You were driving at an excessive speed
- You were with a passenger under the age of 14, which is child endangerment under Penal Code 273a
- Driving with a suspended license.
- You were involved in a hit and run DUI.
What Happens if You Get a 2nd DUI While on Probation?
A second DUI offense while on probation is not automatically a felony. However, the punishment is much harsher from both the court and the DMV. It only elevates to a felony if you injure someone else or your first DUI was a felony. You face the following consequences for a 2nd DUI offense while on probation:
- You lose eligibility to a restricted license
- You may be fined for violation of probation terms
- Decreased BAC standards from 0.08% to 0.01%
When placed on probation, you agree to terms which dictate that you will not operate a motor vehicle with any measurable amount of alcohol in your system. On violating these terms, the court will be made to believe that you have an alcohol problem. You have to demonstrate that you can control your alcohol problem by agreeing to attend AA meetings, to avoid repeating the DUI offense or you might face jail time.
Fighting a 2nd DUI Offense
A second DUI offense is a serious offense and could be very challenging to defend in court. Hiring the right attorney to fight the case for you immediately you are arrested would go a long way in helping your case get an acquittal or dismissal.
It is advisable to let a DUI defense attorney take over your case and prepare an effective defense for your case, which could be needed within just a few hours.
A reasonable defense attorney would do the following in preparation for your defense:
Collect and Analyze Evidence.
A good lawyer would find a way to create a strong defense by subpoenaing witnesses that may help testify in support of your case and find evidence which will ultimately damage the arresting officer’s testimony. The evidence could be any audio recordings or the police vehicle video as he stopped you.
Legal Research and Writing.
For some reason, any of the officers involved in your DUI arrest might have targeted you or treated you in a manner that is inappropriate for an officer of the law. A good defense attorney should be able to gather and use this evidence in support of your case to put together written motions. In light of such circumstances, a “Pitchess Motion” can be filed and heard before a trial happens. If in the motion, your attorney proves that the officer acted in an unprofessional manner. You have more fighting ammunition to go by in your case.
Possible Defenses For a 2nd DUI Offense
Your attorney can use the following defenses to get your 2nd DUI charges reduced, or the entire case dismissed.
Poor Driving Does Not Mean DUI
It is a fact that one can drive poorly without necessarily being under the influence of alcohol or drugs. It would help if you made the arresting officer testify on how well you were driving, even as they pulled you over.
According to The National Highway Traffic Safety Administration (NHTSA), a significant percentage of poor driving is not as a result of DUI. Sober people tend to drive in a nuanced manner due to one reason or another, either they were using their phone, or they got distracted.
Symptoms of Intoxication Are Not The Same as DUI
The arresting officer will most likely testify that you had symptoms that seemed consistent with DUI. Slurred speech, flushed face, strong alcohol odor, unsteady gait or red, watery eyes are all physical signs of intoxication.
A good defense attorney will counter this allegation with the following facts:
i. Alcohol odor does not necessarily mean you were intoxicated or driving under the influence for that matter
ii. Fatigue, eye irritation, allergies, or cold could be the cause of all those symptoms
False BAC Results Due to “Mouth Alcohol”
The breath testing equipment could give falsely high levels of BAC results if the officer does not conduct a 15-minute observation, or if you are experiencing a phenomenon commonly known as residual mouth alcohol. Mouthwash and medicines could raise the levels of alcohol in your mouth, giving false results on a Breathalyzer.
Failure of the Arresting Officer to Comply with California’s Title 17 Regulations
This is a code that governs how breath and blood tests are conducted for DUI. Once a defense attorney shows that any one of the regulations was not followed during your tests, you have a solid defense against the DUI charges.
Your Blood Alcohol Concentration Was On The Rise
It is not illegal to drink before driving. However, it is possible that during the 15-minute observation period, breath, and blood test, your BAC was on the rise. The only thing that matters is your BAC level while you were driving.
Under Penal Code 187 of the California statute, a Watson Murder is considered second-degree murder. A prosecutor needs to prove that you acted under implied malice while driving under the influence which caused a fatal accident that killed someone and you had a prior DUI conviction, had attended DUI School, or a Watson admonition was read to you. This advises you as a defendant that you will be charged with murder for a subsequent DUI since it is a danger to human life.
Implied malice is when:
- You intentionally drive under the influence
- The consequences of your actions are naturally dangerous to human life
- You consciously acted with utter disregard for human life, and
- You knew your actions were hazardous to human life but committed the act either way
The main task for the prosecutor is to show that you acted under implied malice. Otherwise, you will be charged with violating Penal Code 191.5(a), gross vehicular manslaughter while intoxicated, or vehicular manslaughter while intoxicated under Penal Code 191.5(b).
It is also important to note that a prosecutor can charge you with murder charges even without a prior Watson Warning if it can be proved that you acted with implied malice.
Penalties for a Watson Murder
- Fifteen years to life imprisonment in state prison
- Up to $10,000 in fines
- A strike on your criminal record. Note that if you commit another felony offense with two or more strikes in your record. You will receive mandatory jail time of 25 years to life in a California state prison.
Legal Defenses to a Watson Murder
Legal defenses include:
- You did not drive under the influence
- The accident was not your fault
- You did not act with implied malice whatsoever
- There was misconduct from either the arresting officer or the prosecutor
Eligibility for the Expungement of a 2nd DUI Offense
You have the right to and can remove a 2nd DUI offense from your permanent criminal record. After completing your DUI probation, you may send a petition to the court to get the conviction record expunged. Upon receiving the application, the judge will determine whether you are eligible for expungement or not.
Once the judge determines that you are eligible, you will withdraw the guilty plea and re-enter a not guilty plea. The judge will, however, set aside the verdict if you were found guilty by a jury or bench trial.
An expunged conviction is of benefit when it comes to your career and ability to secure an employment opportunity. You are obliged to disclose an expunged conviction, and your employer should not make decisions about your employment or promotion based on an expunged conviction.
Find a Los Angeles DUI Defense Attorney Near Me
DUI is generally an expensive offense and could end up costing you more than you anticipated. The moment you get pulled over by an officer for DUI, you need to contact an expert attorney to help navigate all the complex processes involved. Call the DUI Defense Attorney in Van Nuys at 818-253-1913 and talk to one of our competent attorneys today. We will help to get you through the entire legal process; from the DMV hearing to your criminal trial. Having handled many cases of a similar nature and within the locality, you need us in your corner for a favorable outcome in your DUI case.