Driving Under the Influence is a priorable offense – the prosecution can recall a DUI to increase penalties for a repeat offender. Getting yourself in custody for a Third DUI offense means you will get more substantial penalties than the first two offenses. You will need a good defense team to fight these charges. The DUI Defense Attorney in Van Nuys will provide you with the information and legal representation you need when facing a Third Offense DUI.
Overview of 3rd Offense DUI
A Third DUI offense is the third consecutive DUI offense you are arrested for, within ten years of the First DUI Offense. The Third Offense DUI still stands if you were previously got two Wet Reckless convictions.
Determining whether you are committing a DUI offense begins with a traffic stop, if the officer notices signs of intoxication such as speeding, running a red light, and weaving between lanes.
If the officer notices other symptoms of intoxication, he or she will begin the DUI investigation process. California makes it a crime for you to drive with a BAC level of .08% or higher.
The officer will request you to take a chemical breath test and take you through field sobriety tests. If you fail both tests, the officer will arrest you and read you the Miranda rights. He or she will then take you to the nearest facility for booking and processing.
Penalties for a DUI offense begin as soon as you are arrested. The DMV allows you only ten days after the arrest to request a hearing to prevent your license from being suspended. Meanwhile, you can use the pink notification slip your arresting officer gave you, to drive for thirty days before your license is suspended.
In California, a Third Offense DUI is punished as a misdemeanor, which means your lawyer can request that your offense be reduced. A plea bargain comes with lesser sentencing and penalties.
Elements of a Third Offense DUI
The prosecution has the burden of proving that you committed a crime, beyond a reasonable doubt. In a Third Offense DUI, the prosecution has to prove certain elements such as:
You were in physical control of the vehicle
Being in physical control of a vehicle means you were driving and not merely occupying the car. For instance, if an officer arrests you while you were in a parking lot, or on the side of the highway, you can argue that you were not in actual control of the vehicle. Other factors that the prosecution can use to prove that you were driving include, the position of the keys, where you were seated in the car, whether the engine was warm and the number of people in the vehicle.
You drove with a BAC of .08% or higher
The legal BAC level in California is .08%. Driving with a higher BAC is an offense. The prosecution will use evidence from a Breathalyzer test to prove that you were driving with a higher BAC.
In addition to the breath test, your blood or urine could be tested. The officer will request a blood or urine sample and submit these to the lab, to determine the alcohol concentration.
A DUI defense attorney can criticize the credibility of these results, or request a blood-split motion to determine whether the results of the chemical tests are accurate.
You were under the influence of drugs or a combination of drugs and alcohol
It is also a crime to drive while under the influence of drugs or a combination of drugs and alcohol. The prosecution can use the testimony of the arresting officer, a Drug Recognition Expert, and the results of a blood, urine, or saliva test.
Your DUI lawyer can negotiate an alternative to taking a jury trial. A plea bargain includes either a sentence reduction or a charge reduction. Before you go for a plea bargain, your lawyer will advise you on the advantages and disadvantages of a plea bargain and leave you to choose.
In most cases, plea bargains are used depending on the strength of the prosecution’s case, prior offenses you may have and your tolerance for risk in case you go to trial.
A plea bargain removes the uncertainty of going through a trial and waiting for a verdict, which could be unfavorable. The sentence is likely to be more lenient through a plea bargain.
A sentence reduction means that you will plead guilty to the offense then will receive a set of pre-agreed penalties. A sentence reduction eliminates the worst outcome and gives you a more lenient sentence. In case you insist on a jury trial and lose, you could face imprisonment, hefty fines, and probation.
A charge reduction means that the offense is reduced to a less serious one. While charge reductions are common for First DUI Offenses, they are still possible even with subsequent offenses. Some of the advantages of having a charge reduced include:
- Avoiding a mandatory license suspension
- Reduced fines and penalties
- Lesser jail time
- Reduced stigma
- A reduced impact on your car insurance
Some of the common charge reductions for DUI offenses include:
- Wet Reckless
- Dry Reckless
- Speed contest or exhibition of speed
In some cases, a charge reduction cannot be a prior offense. However, a Wet Reckless conviction is still priorable.
When it comes to the DMV cases, Wet Reckless, Dry Reckless and Speed Exhibition will earn points on your DMV record.
When the prosecution’s case is weak, or the arresting officer deviated greatly from the standard arresting procedure, you can get even more reduced charges including:
- Drunk in public
- Drinking in a vehicle
- Traffic Infractions
These are typically offenses with little to no jail time and a small fine. They are also unlikely to show up on your criminal record or earn you DMV points.
Legal Defense for a 3rd DUI Offense
If you go to trial, your DUI lawyer will have to challenge the evidence of the prosecution to dispute the reasonable doubt criteria, which can have your charges dismissed, or you are acquitted.
The legal defense process begins as soon as you contact your DUI attorney. The attorney will collect and interpret evidence. From the evidence, the lawyer will identify ways in which they can protect you both before and during the trial.
Your lawyer can request a motion to suppress evidence that was acquired illegally. Your lawyer could introduce this motion if the arresting officer searched your vehicle without a warrant or reasonable cause.
The constitution protects your rights against unreasonable and unwarranted searches and seizures. If the judge accepts the motion, evidence of anything obtained during the illegal search/seizure, cannot be used as evidence. Granting this motion may lead to a plea bargain or dismissal of charges.
Your lawyer can also file a Pitchess Motion, which allows the lawyer to look into the personal files of the arresting officer. Your lawyer will request for a pitches motion if the police officer engaged in any misconduct such as the use of excessive force, filing a false report, racial profiling, and coerced confessions and planting evidence.
Your lawyer can also use the results of your DMV hearing (if the DMV does not suspend your license) to convince the court to dismiss or reduce your charges.
Your defense lawyer will also gather evidence from witnesses. Evidence includes witness statements and discovered evidence such as video and audio recordings relevant to your case.
Once your lawyer has collected evidence, they will use it in court to challenge the prosecution. Some of the common legal defenses used for a Third Offense DUI include:
- You were not driving at the time of the arrest
- The officer had no probable cause for stopping you
- The arresting officer failed to follow the right procedures when collecting, storing and transporting evidence and administering field sobriety tests
- There is a medical explanation for a high BAC level other than alcohol or drug use
- The police officer’s report is fraudulent
- The officer did not read you your Miranda rights. Anything self-incriminating said before your Miranda rights are read cannot be used as evidence in court.
Penalties for a 3rd DUI Offense
In case you are convicted for a 3rd DUI offense, the penalties are stricter, and the fines you are likely to pay are higher. Unless the charge or sentence is reduced, a 3rd DUI offense is punished as a misdemeanor. Some of these penalties include:
- Three to five years of informal (misdemeanor) probation
- A term of between 120 days and one year in county jail
- Fines of between $2500 and $3000
- Mandatory installation of an ignition interlock device for two years
- Attending a DUI education program for thirty months
- License suspension for three months
- Registration as a habitual traffic offender
The penalties for a Third Offense DUI are not fixed. They may vary depending on the individual circumstances of every case. Some of the factors that could lead to additional sentencing:
- You had a BAC of .15% or higher
- You refused to submit a chemical test
- You caused an accident
- You had a child of 14 years or younger in the car at the time of the arrest. Driving Under the Influence with a child is child endangerment. It can enhance your sentence by spending an additional 30 days in jail.
- You were driving at an excessive speed. Driving at an Excessive Speed, or Speed Exhibition enhances your sentence by attracting an additional 60 days in jail.
- Your DUI criminal history
When you placed on probation, you have to adhere to some conditions set by the court:
- Pay Fines
- Complete a community service program
- Seek and maintain gainful employment
- Refrain from drug and alcohol use
- Not drive with a measurable amount of alcohol
- Install an IID
- Wear a SCRAM device
- Refrain from breaking the law
- Appearing in court to provide progress reports
SCRAM is an ankle bracelet that a convict in a DUI offense must wear as an alternative to jail. The bracelet tests your BAC level every 30 minutes and sends a report to the court daily. SCRAM uses your sweat to detect the presence of alcohol in your body. The main function of the bracelet is to ensure that you refrain from alcohol use during the probation.
In most cases, you are required to wear the device for between 30 days and one year. The period you are required to wear the bracelet depends on the circumstances of your case, the number of prior offenses, and the extent of your problem with alcohol.
DMV Penalties for A 3rd DUI offense
The DMV punishes DUI offenders by suspending their licenses. You will receive a notice of suspension when you are arrested. The arresting officer confiscates your driver's license and replaces it with a pink slip that will act as your license for the next thirty days.
You should request a DMV hearing within ten days of your arrest. If you do not request a hearing, your license becomes suspended after thirty days.
Your lawyer can schedule the hearing over phone or one-on-one with a DMV judge. The judge will determine whether there is a cause for suspending your license.
During the hearing, you or your lawyer will present evidence such as:
- Whether the arresting officer had probable cause
- Whether you were arrested for a lawful cause
- Whether you were driving with a BAC of .08% or higher
- Whether you were aware of the consequences of refusing to submit a breath or blood test
Your lawyer can present defenses such as:
- You were not driving
- You were arrested at an illegal DUI checkpoint
- There was no probable cause for your arrest
- You were not given a 15-minute observation period
- The testing equipment was faulty
- There are other explanations for your higher BAC level
- You were not advised of the consequences of refusing to submit a breath or chemical test
- You did not refuse to submit a chemical test
- Flawed report by the arresting officer
If you win the DMV hearing, your suspension will be set aside until the completion of your criminal case. If you lose, your license is suspended for one year. The DMV may allow you to drive once you install an ignition interlock device.
If your criminal case ends in acquittal or dismissal, the DMV will have to restore all your driving privileges.
If you are found guilty after the criminal proceedings, your license will be suspended for three years. You can request a restricted license after one year of suspension. You can get different forms of restricted licenses, including:
- An IID restricted license, which allows you to drive anywhere, as long as you install an ignition interlock device in your car. The device will keep track of your breath to detect alcohol.
- In some cases, the car may refuse to start if the device detects alcohol in your breath. It will also send regular reports of your alcohol use. The restricted license lasts for two years.
- A restricted license - allows you to drive to work and DUI School. To get a restricted license, you have to attend a DUI school for at least 12 months of the program. In addition, you have to provide an SR-22, install an IID, and pay a reissue fee of $125.
Getting your license back is important. Your DUI attorney will help you keep track of the timelines, recover your license, and get to move around easily. In addition, your lawyer will help you in obtaining an SR-22 form.
SR-22 is a form from your car insurance provider that proves that you have met the requirements of the state concerning auto liability insurance. You must provide the form anytime you want your driving privileges reinstated.
Expunging Your Criminal Records
A criminal record can ruin your employment opportunities years after a conviction. To prevent such negative consequences, California PC 1203.4 authorizes the expungement of criminal DUI records.
Your lawyer can request for expungement of your records when:
- You complete your probation
- You were not incarcerated in state prison
The process of expunging record includes withdrawal of a guilty or no contest plea, and reentry of a not-guilty plea. The judge will then withdraw the “guilty” verdict and dismiss the case.
The expungement of criminal records will not overturn the DMV decision. Neither will it protect you in case you commit another DUI offense within ten years. It, however, protects you from having to tell your employer that you were convicted of a DUI. In addition, your potential employers cannot access your expunged records.
Find a DUI Attorney Near Me
Having a DUI attorney is important immediately after your arrest, during the criminal proceedings, and after the criminal proceedings. Since the effects of a DUI conviction last after the conviction, you need legal guidance to restore your driving rights. The DUI Defense Attorney is the go-to expert on all matters related to a 3rd offense DUI. Call our Los Angeles DUI Attorney today at 818-253-1913 for legal advice and representation.