A first DUI conviction is bad enough. Although generally a misdemeanor offense, a conviction can significantly adversely affect your professional and personal life. And whereas a first drunk driving offense is bad, a second one can be more devastating. Judges and prosecutors are less lenient in this case, which means the penalties will be harsher. Virtually all consequences, from incarceration, fines, and license suspension to DUI school, will increase for your second DUI conviction. A second-time DUI conviction also carries the professional and social stigma, just like the first. Consequently, legal representation is paramount if you want to stand a chance of avoiding the more severe penalties.
At Chula Vista Criminal Attorney, our lawyers have helped hundreds of clients defend themselves against all DUI charges, thanks to their DUI defense experience and knowledge of the California DUI laws. We will work tirelessly to have the judge dismiss your 2nd drunk-driving charge. If a dismissal is not possible, we will fight to have the charges reduced by negotiating a favorable plea deal so you receive a lenient sentence. Call us today for a free, confidential consultation and case evaluation.
What Is a 2nd DUI Offense?
If you have one previous conviction of DUI or wet reckless offense on your criminal record within the last ten years, the conviction is deemed a prior, making the subsequent DUI/wet reckless offense a 2nd offense. Drunk driving arrests that never led to a conviction are not considered priors. And note that the ten-year window starts running from the day of the DUI arrest.
Like first DUI offenses, second-offense DUIs are handled through two distinct procedures— the criminal and the California Department of Motor Vehicles (DMV) process. Each process has its unique guidelines and set of punishments.
The DMV Administrative Process
As mentioned, DUI offenses are handled through two processes. One of these processes is conducted by the California DMV. Once you are arrested for DUI, the arresting police officer confiscates your driver’s license and gives you a temporary pink one that will last for thirty days. Once this happens, the DMV will hold an administrative hearing at its office to determine whether your privilege to drive should be suspended or not. The hearing can be held on the phone rather than in person. An essential factor to note is that the hearing does not come automatically. You must request it within ten days of your arrest. Failure to demand the hearing in ten days will result in the DMV automatically suspending your driver's license after thirty days.
On the other hand, requesting the hearing on time will delay the DMV license suspension until the outcome of your hearing. Winning the hearing would make the DMV cancel its suspension action. And if you lose, the DMV will go ahead and suspend your license for one year.
At some point, you could qualify to have your license reinstated once you:
- In given cases, install an IID in your vehicle
- Pay a reinstatement fee of $125
- Submit an SR-22 insurance form
- Participate in DUI School
DMV DUI hearings are much more relaxed and informal than court trials. But despite the informality, you still have various legal rights to enjoy. You are entitled to legal representation during the hearing (at your own expense). This means unlike in a criminal court case, the DMV will not appoint a lawyer for you if you are incapable of affording your own. You could also demand a physical hearing instead of the one conducted over the phone. This is generally to your advantage. During the hearing, you have the right to:
- Testify on your behalf
- Present and subpoena witnesses, for instance, the arresting officer. This will not only help you win your DMV hearing but may also expose various weaknesses you could use in your criminal court defense.
- Cross-examine eyewitnesses
- Review and contest evidence
The ideal way of prevailing in your DMV administrative hearing is by having a DUI defense attorney represent you. You stand a higher chance of leniency if a lawyer is helping defend you and your best interests.
The DMV DUI administration process and criminal court proceedings differ because while the court proceedings focus on establishing whether you committed the crime, the DMV hearing centers solely on the facts of your DUI arrest and whether your license should be suspended or not.
Although, testimony acquired during the DMV hearing may convince the prosecution to dismiss or lower your 2nd offense charges after plea deal negotiations.
A critical point to note is that winning the DMV does not automatically mean you will win the criminal court proceedings. For some reason, the prosecution may still believe they have compelling proof to try you. If you are eventually found guilty of the accusations, the judge can still suspend/revoke your license. And if you lose the DMV hearing, the DMV's decision to suspend your license is independent of the criminal court's decision, meaning the court can still suspend your license if it finds you guilty.
Criminal Consequences for 2nd DUI Offense
A prevalent question that those arrested or prosecuted for a 2nd DUI offense ask is how the punishment the DMV or court hands down differs from the penalties of a 1st DUI offense conviction. The answer to this question is the punishments vary based on the facts surrounding the specific case, even though 1st and 2nd DUI offenses are both considered misdemeanors. When found guilty of 2nd offense DUI, the general consequences the court will impose are:
- Summary DUI probation for a period ranging between three and five years
- IID (ignition interlock device) installation, usually for one year at your expense. IIDs are costly and necessitate you to agree to random breath tests while driving, failure to which your vehicle will shut off.
- Mandatory incarceration for at least ninety-six hours— unlike a 1st offense DUI, you cannot waive the 96-hour jail sentence. Therefore, for a 2nd drunk-driving conviction, you must go to jail. And rather than six months, the utmost jail time is a year.
- Between 18 and 30 months of a court-approved DUI School
- A fine of between $390 and $1,000. Although, the judge may also need you to pay penalty assessments, which will increase your total court fine to about $2,000. In some 2nd DUI offenses, the cost goes beyond this.
- Driver's license revocation/suspension for 24 months. After one year, you can request a restricted license. Or, you could immediately obtain an IID restricted license, allowing you to drive everywhere provided you have the IID installed.
Importantly, when the judge imposes a probation sentence, they will require you to comply with the following terms and conditions:
- You must not commit any other crimes
- You must not drive when you have a measurable alcohol level in your bloodstream
- You should always agree to undergo chemical testing of your breath, blood, and rarely urine if placed under arrest for another drunk driving offense
Additionally, dependent on the case facts, the judge may impose these probation conditions for your 2nd offense DUI conviction:
- IID installation on any vehicle you operate or own for up to three years
- Restitution if you caused a crash while driving while intoxicated
- The requirement to participate in the MADD (Mothers Against Drunk Driving) Victim Impact Panel
- Attendance in AA (Alcoholics Anonymous) or NA (Narcotics Anonymous) meetings. The court will require you to document your attendance to prove you attended
- Undergo drug and alcohol treatment
- Commitment to rehabilitation
- Having to put on a SCRAM that detects whether you have alcohol in your system
If you fail to comply with any imposed conditions, you will be deemed to have violated probation, which could subject you to an additional incarceration period and other repercussions.
Other 2nd Offense DUI Consequences
Apart from the criminal and administrative penalties for 2nd DUI offenses, you can face collateral consequences. Most of these repercussions are a direct outcome of your DUI conviction, for example:
- You will have multiple points added to your Negligent Operator Treatment System from the DMV, which could significantly increase your insurance premiums
- Being rejected for loans and other financial assistance
- Rejection from serving in the military
- Denial to enter university or college
- It will be hard for you to be considered for a job opportunity, especially commercial driving, or you will be terminated from your current job.
Aggravating Factors to Your 2nd Offense DUI
Certain circumstances, if present during your booking for the 2nd offense DUI, will enhance your incarceration period and sometimes license suspension period. The most prevalent of these factors include:
- Refusing to undergo DUI chemical testing. Declining to take chemical tests may subject you to an additional jail term of forty-eight hours and a compulsory DUI school program for nine months.
- Having a BAC (blood alcohol concentration) of .15 percent or more. Driving with .15% BAC will also result in an additional jail sentence.
- Causing a road accident— if you caused an accident during the commission of your 2nd offense DUI, you would face an additional five days of jail term and a year of license suspension. Other consequences include mandatory community labor and extra fines.
- Driving at an excessive speed. Driving beyond 20 mph over the legal speed limit on a highway or street or beyond 30 mph over the legal speed limit on a freeway while intoxicated will add sixty days to your original jail term.
- Being a child under twenty-one years at the time of your DUI offense. Driving while intoxicated when you are underage could lead to additional charges under the zero-tolerance law (VC 23136) or VC 21340, underage DUI law.
- Having a minor below fourteen years in the vehicle while driving under the influence (also called PC 27(a) child endangerment)— if this aggravating factor is present in your case, you will face a mandatory additional ten days of jail term.
- DUI hit and run— fleeing the scene of an accident you were involved in while DUI will add two points to your driving history. Two more points will be added to your driving history if you are arrested, and these four points could lead to a suspension of your license for six months. The judge would also declare you a negligent operator.
- Driving on a revoked/suspended license. Driving while intoxicated and on a suspended license may subject you to an additional ten days in jail and increased fines.
- Driving while intoxicated on construction and safety enhancement zones— your fine will be doubled if guilty of 2nd offense DUI and you were driving in a safety enhancement zone or a highway construction/maintenance zone.
- DUI while on probation. If you were sentenced to probation for the first DUI offense and then receive a 2nd DUI in violation of probation terms, your license will be suspended for one more year, and you may be denied probation for your second conviction.
The increased sentence you face for the presence of any of the aggravating circumstances in your case will significantly depend on your arrest and your criminal record (with the focus being on your past DUI history). A past conviction for DUI, combined with any aggravating circumstance, will make the enhanced penalties even harsher.
Essentially, mitigating factors refer to circumstances or facts that warrant less severe sentencing or reduce an accused's guilt. For instance, if you were impaired due to legally prescribed drugs, barely above the stipulated legal BAC limit, or completed voluntary drug abuse treatment following your arrest, the prosecution and judge may agree to grant you a less severe sentence. Prosecutors and judges may consider factors such as whether you are a good student or gainfully employed when deciding on an appropriate plea deal or sentence to offer.
Defending Against 2nd Offense DUIs
Being arrested for the second time for driving under the influence may seem like the end of the road for you, mainly because the judge may see it as a habit, but it is not. Even if you were convicted the first time, the criminal justice system would still give you the chance to defend yourself for the second time. The best way of defending yourself is by hiring an expert DUI defense attorney. When you retain a lawyer, there is usually hope to emerge from the criminal process with an acquittal or dismissal.
However, to achieve this, you need to have the mindset right after arrest to let a DUI criminal defense attorney review your case. Many things are involved in developing a compelling DUI defense strategy, some of which must be done hours after your arrest. The specific requirement to retain a DUI defense attorney to help you fight your charges includes:
Gathering and Analyzing Evidence
An expert DUI defense lawyer knows how to gather and analyze the proof that would assist in building your defense. Collecting evidence includes subpoenaing eyewitnesses that will testify in your favor. It might also include retrieving the police car videos of when they pulled you over and any related audio recordings. For example, if a police officer states they pulled you over because your vehicle lacked a front license plate, and your lawyer proves otherwise by showing the officer never had a glimpse of the front of your car before the stop, this might be essential in discrediting the police officer's testimony.
Apart from the requirement to have a lawyer gather and analyze the proof available to fight your case, an experienced defense lawyer will also be capable of using the proof as the foundation for organizing written motions to support your case. If, for example, you believe the arresting officer unfairly targeted or treated you inappropriately or unprofessionally, that would mean police misconduct. Your lawyer can then bring a 'Pitchess Motion.' The motion may enable your lawyer to find dirt from the officer's personnel file that will give you more ammunition for fighting your case.
Plea Deal Negotiations
It is also essential to retain a lawyer because they may be capable of obtaining a satisfying outcome for your case. Since most DUI cases do not reach the trial stage, it is just as essential to have a skilled DUI defense lawyer as it is to hire an attorney who understands how to negotiate with the prosecution. These plea deal discussions may assist you in obtaining dry or wet reckless charges for your second DUI offense.
If your 2nd DUI case goes to trial, your lawyer may still help you win. Note that repeat DUI charges are won or dismissed all the time, sometimes even when the prosecution has substantial proof against the defendant, and yours is not an exception. The defenses your lawyer can argue are:
The police Lacked Probable Cause to Stop You for DUI
To arrest you for driving under the influence, a law enforcement officer should have a reason to believe you are committing a crime. If the arresting officer cannot prove to the jury that they had probable cause to pull you over and arrest you, your lawyer can file a motion to suppress any proof the officer obtained.
Rising Blood Alcohol
If the police stop you for DUI and your body is still absorbing alcohol when you undergo a breathalyzer test, your BAC will not correctly show your blood alcohol concentration at the exact time you drove. This defense is based on the fact that alcohol takes longer to be absorbed into someone's bloodstream. Based on the foods you have eaten and drinks you have drunk, it could take up to two hours for alcohol to enter your blood and reach the highest absorption level. Therefore, if, for instance, you are stopped for suspected DUI, the officer administers a preliminary alcohol screening test fifteen or twenty minutes later, and the results show .08%, you will be arrested for drunk driving and then asked to undergo chemical testing. If the chemical test results show .12%, your BAC was on the rise. However, your lawyer can argue that you stopped drinking thirty minutes before you were pulled over, and if your BAC was .08% per the PAS results, then your BAC must have been below .08% at the time you drove.
Police Mistakes During a DUI Stop
Police officers may make mistakes during your DUI investigation that could affect the outcome of your case. If the police neglect to follow various procedures, your lawyer could file a motion to suppress or exclude incriminating proof or dismiss your charges. Some of the mistakes arresting officers may commit include:
- Lacking reasonable suspicion for an investigative stop
- Failure to establish your drinking pattern
- Administering FSTs (field sobriety tests) incorrectly
- Failing to wait fifteen minutes before conducting a breathalyzer test per Title 17 Code of Regulations
- Copy and paste police report without changing facts
- Failing to keep track of critical details
- Not obtaining two breath samples
- Failing to turn in the PAS device for required accuracy testing (violation of Title 17)
- Failure to admonish properly in a chemical test refusal
- Failure to provide a Trombetta Advisement
- Failure to maintain chain of custody in a blood draw
- Failing to acquire a warrant before a forced blood draw
Other defenses for 2nd offense DUI include:
- You were not driving
- Contesting the validity of blood, urine, or breath test results
- Mouth alcohol defense
- Acid reflux or GERD defense
Criminal Record Expungement
Even though disappointing, a conviction for a 2nd DUI offense can be erased from your criminal record. This could be done by requesting an expungement. An expungement is possible provided you were sentenced to probation and served your sentence successfully.
A DUI record expungement works similarly to any other criminal record expungement in several ways. In essence, you must file a petition in court, which the judge will then review. Should the judge grant your request to expunge, they will let you withdraw your no contest or guilty plea and re-enter a not guilty plea. Once you enter the not guilty plea, the judge should then dismiss your case.
Find an Experienced Chula Vista DUI Defense Lawyer Near Me
Even if no accident or injuries were reported, a second DUI offense could result in severe criminal, administrative, and collateral consequences upon a conviction. Therefore, if arrested, you need to act fast and obtain legal representation that may be able to help you avoid a conviction. At Chula Vista Criminal Attorney, we have reputable and knowledgeable DUI defense attorneys to fight for you and protect your legal rights. Note that California DUI laws are constantly evolving. You, therefore, want to choose a knowledgeable lawyer since any wrong decisions you or your lawyer make can lead to future collateral repercussions that you could otherwise have avoided. We strive to build genuine lawyer-client relationships with our clients, established on trust and the understanding that we will do everything it takes to acquire the most favorable outcome for them. Call us at 619-877-6894 to know more about how we can help you.