California DUI law has no tolerance for individuals who drive under the influence of alcohol or other illegal drugs. If you are convicted of a second DUI offense within ten years of the first offense DUI, you will face harsher penalties. This is because drunk driving is treated as a 'priorable' offense, where the penalties increase with each repeat offense. If you or your loved one is facing a second DUI charge, it is crucial to seek legal representation. Attorneys from the San Jose DUI Attorney Law Firm will help you answer any questions you may have and defend your case in court and at the DMV. We serve clients charged in San Jose, CA, to ensure the best possible outcome for your DUI case.
What is a Second DUI Offense?
California DUI law has no tolerance for repeat offenders for drunk driving. A second DUI is more severe than the first, and the penalties that accompany it are harsher, especially if it comes within ten years after your first DUI arrest. For a prosecutor to lad a conviction for a second time DUI in California, they must prove beyond a reasonable doubt that:
- You were in complete control of the vehicle
- At the time of arrest and booking, your blood alcohol content was 0.08% was higher
Your best strategy after your arrest for a second DUI defense attorney as soon as possible.
Penalties for Second DUI Offense
Since driving under the influence of alcohol or other drugs is a 'priorable' offense, a second DUI offense conviction is more severe than the first. You will face harsher penalties if you are charged with a second DUI within ten years of the first DUI offense. However, even when ten years have passed, the crime will still be recognized and considered during conviction for a repeat offense. Penalties for a second DUI charge will vary from case to case depending on the circumstances surrounding the arrest.
When you are convicted for driving under the influence of alcohol for a second time, the following penalties are typically imposed include:
The amount of time spent in jail for second DUI offenders will vary depending on whether your offense is treated as a misdemeanor or a felony. The statutory punishment scheme for a second DUI offense in California will allow up to one year in county jail if the offense gets charged as a misdemeanor. This offense can also get charged as a felony in which the maximum punishment will be three years in a state prison that can be served in county jail.
Further, your felony charges can be enhanced and increase the punishment severely. Under California Penal Code section 12022.7, your second DUI charge will be charged with special allegations if you caused an injury. In this case, three years will be added to the possible jail sentence. Also, this will make your DUI a violet which requires you to serve 85% of your sentence instead of the 59% for the o strike felonies. If no serious injury resulted from your DUI, and you do not have a prior conviction for a felony, you will only get a sentence ranging from 0 days to 1 year in jail.
DUI probation is a very common sentence in many DUI cases in California. Often, defendants will want to trade jail time for an alternative probation period. However, if your DUI charge is a felony where someone was injured, you will be denied probation. A second DUI within ten years from the first offense will attract probation of five years. For a second DUI conviction treated as a misdemeanor, your probation will not get supervised, probation for a felony will get supervision from a probation officer. If you get a probation sentence for your second DUI offense, the following conditions will always be included:
- You should avoid driving with measurable alcohol content in your blood.
- You shall not commit any other crimes while on probation
- You shall not refuse to submit to a breath or blood test when compelled to do so.
If you are convicted of a second DUI offense in California, you will face a fine of $390-$1000. Also, the court will add a penalty assessment fee, which will typically increase the total penalty fee to around $1950.
If you get convicted for a second DUI offense, the court will require you to attend a mandatory DUI program ranging from 18-30 months. The objective of attending the DUI program is to reduce the number of multiple offenses among individuals who complete the program. Also, it will allow you to address your problems which are related to the use of alcohol.
DUI programs will allow a certain number of absences as long as you make up for them. However, if you exceed the permitted absences, you will be considered a dropout. If you fail to complete the program, you will trigger a revocation of your restricted driver’s license. The court may also issue a warrant for your arrest on receiving a notification that you violated probation terms by failing to complete the course.
DUI program costs vary depending on the length and type of program. However, a DUI program is not permitted to deny you entry if you cannot afford the cost. You may be eligible for a waiver if you prove your inability to cater for the program costs with your current income. Penalties for a second DUI conviction will significantly affect your life and those around you. If you are facing these charges, it is essential to seek legal representation from a competent DUI attorney.
Other than the DUI program you are expected to attend; the judge may also impose collateral sentences that will require you to attend AA programs and other programs that will impart the seriousness of a second offense DUI.
Driver’s License Suspension for a Second DUI
The California Department of Motor Vehicle is the only authority that has the right to suspend your California driver’s license for driving under the influence of drugs. However, there are two circumstances that can trigger the imposition of a license suspension for a second DUI offense.
- A suspension which is triggered by a conviction for a DUI in a California court under California Vehicle Code 23152(a) - Commonly a court conviction for a second DUI will result in a two-year license suspension.
- A suspension triggered by a failure to request a DMV hearing, also known as Administrative per se suspension - After an arrest for driving under the influence of alcohol, your driver’s license will be taken away. The DMV requires you to file for a DMV hearing within ten days after the arrest. This will allow you to defend the suspension of your driver’s license before a verdict for your DUI criminal case is given. Failure to file for the DMV hearing will trigger the APS suspension, which is often one year with no qualification for a restricted license.
If the DMV suspends your license for a second DUI offense, you can seek a restricted license which will allow you to drive your car during the period in which your license is suspended. However, if you get an APS license suspension, you must submit your chemical tests and proof of an ignition interlock device before you apply for a restricted license. An ignition interlock device is a Breathalyzer device installed on the dashboard of your vehicle. It is used to ensure that you do not drink and drive. Before getting the restricted license, your DMV record should show that your court triggered suspension has already started.
Unfortunately, if you were facing a second DUI offense in California and failed to submit to the chemical tests, you face more severe punishment. You will attract a two-year driver’s license revocation with no entitlement to a restricted license until the revocation period ends. Also, there is no way around the one-year ignition interlock device requirement. You need to ensure that you install it immediately to get the restricted license on the 91st day after the suspension of your license.
Once your motor vehicle insurer learns about your DUI, they will raise your auto insurance rates. Most insurers keep rates elevated for at least three years and can go up to 7 years. If you get convicted for a second DUI offense in California, you will be required to maintain auto insurance that will meet the minimum limits. Also, you will obtain an SR-22 certificate which is needed when you possess a restricted driver’s license.
If you wish to get a license reinstatement after the suspension or revocation period is complete, you have to produce the SR-22 certificate. This will act as proof of financial responsibility that you filed with the Department of Motor Vehicle. If it lapses, your SR-22 will be revoked and your license suspended. You are expected to maintain this certificate for three years and pay the premiums.
Second DUI Offense while on Probation in California
If you get arrested and charged with a second DUI while probation, the consequences of your case both in court and at the Department of Motor Vehicle. However, it is essential to know that a second DUI offense even while on probation is not automatically a felony. To be charged as a felony, it is either the previous DUI offense was a felony or you were involved in an accident that caused injuries during your second offense. The penalties for this offense will come from the three separate cases that you will be facing including a second DUI, violation of probation, and your DMV hearing. The consequences are:
- Eligibility for a restricted license
- Decreased blood-alcohol standard from0.085 to 0.01%
- Hefty fines for probation violation
Aggravating factors that Increase Penalties for a Second DUI in California.
There are certain circumstances if present at the time you get arrested and booked for a second DUI offense, your jail or prison sentence will increase. Some of these circumstances include:
- Having a blood alcohol content of 0.15% or higher - You will be arrested for driving under the influence of alcohol in California if your BAC is 0.08% or higher. However, if your AC is 0.015% during the arrest for a second DUI, your penalty is likely to be higher as compared to an individual with a lesser BAC.
- Refusal to submit to a chemical test - California DUI law gives you the right to refuse the blood and Breathalyzer tests during a DUI arrest. However, you will be faced with harsher penalties among which is a suspension of your driver’s license by the DMV as well as a higher jail sentence.
- Underage DUI - California has zero-tolerance for underage drinking and driving. You will get arrested for underage DUI if you drive with a BAC of 0.01% or more. If you are arrested and charged for a second underage DUI, your sentence may be increased.
- Having children under the age of 14 in the car during the second DUI incident - California Penal Code 273a punishes individuals who put children at risk of injury. Getting arrested for a second DUI with a child in the car is considered child endangerment, and more time in jail will be added to your penalty. Even when the minor did not get injured during the incident, you can still get charged under PC273a.
- DUI Hit and Run - The penalties for your second DUI charge may be increased if, during the event, you caused an accident and fled the scene. Also driving in excess speed and causing an accident will trigger an enhanced sentence even if you did own up to the responsibility.
- Driving on a Suspended License - Your penalties for a second DUI may be increased regardless of the reason behind the license suspension.
Even after consideration of these factors, the amount of penalty enhancement you receive will largely depend on the exact circumstances surrounding your second DUI arrest in California. Also, your criminal history will be considered during the sentence. Having a prior conviction combined with one or all the above aggravating factors makes the pending penalties more severe.
Expungement of a Second DUI Offense Record in California
Expunge is clearing the DUI on your criminal record. Expungement is available to you whether you are convicted for a misdemeanor or a felony as long as:
- You have completed probation for the offense
- You did not serve a sentence in state prison, and if you did, you would have alternatively served it in county jail.
As soon as you complete the probation, you may petition the court to expunge the record of your second DUI conviction. The court will review your petition and determine your eligibility. One of the significant benefits of the expungement of a California DUI conviction is making it easier for you to secure employment. Once your DUI criminal record is expunged, an employer will no longer use it as a basis for negative employment consequences. This is because an expunged conviction is not disclosed.
However, it is crucial to understand that an expungement of your second DUI record will not overturn the fate of your driver’s license suspension. Also, an expunged DUI will be considered if you commit another DUI offense within ten Years after the expunged offense.
Legal Defenses Against a Second DUI Charge in California
The penalties for a second DUI in California can be severe. If you are arrested and want to fight the charge, you should understand all available defenses for your case. With viable defenses and a competent DUI attorney, you might be able to successfully persuade the prosecution to drop or possibly reduce the charges. This might even help prevent suspension of your driver’s license. Some of the defenses you can preset include:
Lack of Probable cause for Arrest
Generally, the police will need probable cause to stop your car and arrest you for driving under the influence of alcohol. Having probable cause means that they have a strong belief supported by facts that you were driving under the influence of alcohol or other drugs. Some behaviors that you can exhibit on the road which will give the police a cause to stop your car on suspicion of a DUI are;
- Swaying from lane to lane carelessly
- Ignoring red lights on the road
However, the DUI checkpoints or roadblocks are an exception to the probable cause rule. This is because all cars are stopped at this point with or without suspicion of drunk driving. Any traffic offense may suffice. If you get pulled over by the police without a sufficient reason, then this will be a violation of the law. Evidence collected from an unlawful stop will subsequently be rendered inadmissible in court.
A valid traffic stop does not make an automatically lawful DUI arrest; the police must have enough reason to believe that you violated the DUI law. They must carry out the field sobriety tests and the alcohol content test. These results will act as a probable cause of arrest.
Challenging the Officer’s Testimony
When the arresting officers stop your vehicle for a DUI suspicion, they will observe your behavior and also carry out a field sobriety test. Their observations will be used as evidence against you in the DUI case. An officer’s observation of impairment are:
- A poor performance at the field sobriety test
- The odor of alcohol in your breath
- Bizarre behavior
- Slurred speech
- Bloodshot eyes
To successfully eat the second DUI charge, you may need to challenge the significance of the officer’s observations. For some observations, you might be able to provide alternative explanations other than intoxication for what happened. For example, you can associate bloodshot eyes with irritants and allergies. Also, you can bring forth your witnesses who saw things differently from the arresting officer. However, it is crucial to know that your passengers may not be accepted as witnesses to avoid bias. You need to identify some other people from the incident and request them to be your witnesses in the DUI case.
Challenging the Accuracy of the Test Results
Most machines can make mistakes, including the Breathalyzer device. There is a wide range of factors that can affect the accuracy of the chemical test. Challenging the chemical tests is complicated, but you can preset this evidence with the help of a DUI attorney. The following are some conditions that may change the results of your tests
- Food and Medication Consumption - Most breath testing machines will register any chemical compound in your breath as alcohol. Some medications and foods contain alcohol and could lead to a high alcohol percentage in the Breathalyzer machine.
- Testing During the Phase of Absorption - Alcohol takes some time for alcohol to get fully absorbed in our blood. If you take one on the roads, the effects of impairment will be felt much later. You can argue that the alcohol content detected could only have shown after you get
Officer Misconduct at the Sobriety Checkpoints
There are specific procedures that should be followed when administering the tests and making the arrest. During the administration of the field sobriety test, the officer should observe you for a minimum of 15 minutes to establish the correct results. You have the right to refuse the tests. If you were threatened or coerced into taking those tests, then the results are not valid evidence. Also, if the correct procedure was not followed, the evidence can be challenged.
Fight Second DUI Charges With a DUI Attorney Near Me
Getting charged with a second DUI offense will do more than just increase penalties for your DUI criminal case. A conviction for a second DUI offense within ten years of the first offense will ensure you lose your driving privileges. If you are battling this charge, it is wise to consult an attorney from the San Jose DUI Attorney Law Firm. Our team of competent attorneys serves residents of San Jose, CA, by offering consultation as well as legal representation. If you are ready to discuss the details of your pending DUI case with an attorney, contact us at 408-777-6630 today.