If you have a 1st DUI conviction on your criminal record and face a 2nd DUI arrest, you need to act quickly and do everything you can to halt the potential penalties for multiple violations of DUI laws. The possible sentence for a DUI charge increases depending on the frequency of the charge and aggravating factors surrounding the offense, for example, possession of illegal drug substances.
Orange County Criminal Lawyer has significant experience and knowledge to handle multiple DUI Charges, and we can help you keep your head above the water when facing these charges. Keep reading this article to understand better 2nd offense DUI consequences and what you can to protect your rights and interests.
An Overview of DUI in California
California Vehicle Code 23152(a) VC makes it a crime to DUI of alcohol or other controlled substances because they affect a person's ability to coordinate and operate a vehicle cautiously as a sober driver would, and what happens next is unnecessary accidents. In fact, according to the National Highway Traffic and Safety Administration (NHTSA), most injuries and deaths on the road are due to DUI. A person who causes injuries when drunk driving can face civil and criminal prosecution.
A civil suit aims to recover damages resulting from a drunk driving accident. On the other hand, criminal suits seek to punish you for putting other people's lives and health at stake when driving under the influence. Although DUI of controlled drug substances and prescription drugs count as a violation of DUI laws, most common cases involve drunk driving.
Since every person reacts differently when DUI of alcohol, there is a "per se" limit for drunk driving. Typically, DUI of alcohol with Blood to Alcohol Concentration of 0.08% or above is unlawful as per California Vehicle Code section 23152(b)
If you receive a DUI arrest, you will go through two legal proceedings to protect your driving license from suspension and fight the underlying DUI criminal charges. However, you should know that a 2nd Offense DUI will most likely result in stricter penalties than the 1st DUI charge because it portrays ignorance and negligence. You will need a criminal attorney in these two legal proceedings, that is:
- Department of Motor Vehicle (DMV) administrative hearing
- DUI Court hearing
A criminal attorney can attend these two legal proceedings on your behalf to protect your rights and interests. It is important to note that you will only receive a 2nd offense DUI charge if it is a second offense within ten years.
What You Should Expect During 2nd Offense DUI Arrest
All DUI charges start when the traffic police officers point out your vehicle to pull over at a DUI checkpoint. The traffic police officer will pull you over if they suspect that you might be drunk driving, for instance, if they saw you swerve on the road or making an unsafe left turn. Swerving on the road is not enough to prove that you are drunk driving. Hence, they will have to conduct some sobriety tests to determine if you are under the influence of alcohol or other controlled drug substances. The sobriety tests the police conducts at the DUI checkpoint, usually along the road, include:
Blowing a Breathalyzer
A breathalyzer is a device that detects the presence of alcohol in your breath vapor. Use of a breathalyzer to detect if you are drunk driving is prone to some errors because:
- The breathalyzer can be faulty, leading to errors in your test results
- Alcohol in your breath vapor could be due to other substances like mouthwash
Since a breathalyzer test result cannot ascertain that you were DUI, your attorney can raise the above argument to counter the charges before they get to trial.
Field Sobriety Tests
After a breathalyzer test, you should also expect some field sobriety tests to determine if you were drunk driving. Typically, field sobriety tests assess your level of impairment and coordination to drive a vehicle like a sober, cautious driver. The police will ask you to do the following standard field sobriety tests (FSTs) as per NHTSA:
- One-leg stand
- Walk and turn
- Horizontal gaze nystagmus
It is wise to cooperate with the police during these sobriety tests because failure to take the tests can aggravate your sentence and form a ground for license suspension by the Department of Motor Vehicle (DMV). If you perform poorly on the FSTs does not guarantee that conviction is inevitable. There may be a need for further accurate tests like blood or urine tests, which means you have to follow the police to the station.
Even chemical blood and urine BAC tests are prone to errors depending on how the lab analyst did the tests. Contaminated equipment can affect the outcome of chemical BAC tests. During this moment, retaining a criminal defense attorney is crucial to establish the loopholes in the sobriety tests results early to counter the charges before trial.
2nd Offense DUI Legal Proceedings
There are two legal proceedings that you will have to defend yourself to protect your California driving license and avoid a criminal conviction. You have an option of retaining an attorney for guidance and legal counsel in the following two legal proceedings following a 2nd DUI charge:
DMV Administrative Hearing
The first legal proceeding you will face is a DMV administrative hearing to determine if there are probable causes of your DUI arrest and whether suspension/revocation of your license will be necessary. Immediately after a DUI arrest, DMV automatically suspends your license unless you schedule a DMV hearing within ten days following the DUI arrest to present your evidence against the arrest, for instance, police misconduct or illegal search.
Failure to submit a request for a DMV hearing within ten days after a 2nd DUI arrest will make you lose your right to defend yourself, and your license will go into suspension immediately for two years. However, under particular conditions, you might be able to reinstate your driving privileges by doing the following:
- Enrolling in a DUI school
- Pay $125 reinstatement fee
- Agree to install an Ignition Interlock Device (IID) in your vehicle
If you succeed in your DMV hearing, you will keep your driving license, and your attorney can use the same pieces of evidence during DUI court hearing to dismiss or reduce the potential penalties for violation of DUI laws. You might succeed in a DMV hearing, but DUI criminal court might still suspend or revoke your California driving license if there is enough evidence to incriminate you for the violation of DUI laws.
DUI Criminal Court Process
After the DMV administrative hearing, you will have to fight the underlying 2nd offense DUI charges. DUI in California is a criminal offense requiring more comprehensive evidence to dismiss or reduce the charges. Before a DUI criminal trial, there will be an arraignment and plea bargaining legal proceedings. During a DUI arraignment hearing, the judge will read the charges against you, and you will have a right to enter a plea of "guilty" or "not guilty."
If you cannot afford an attorney, the judge will inform you of your right to apply for legal representation by a public defender free of charge. If you already have an attorney, he/she may attend the arraignment hearing on your behalf, especially if you have intentions of entering a "not guilty" plea.
During the arraignment hearing, your attorney will obtain discovery documents from the prosecutor containing evidence against you like police reports and BAC tests to prepare legal defense strategies. If there are several distinctive evidence against you from the prosecutor's discovery documents for the 2nd offense DUI, your attorney will advise seeking a plea bargaining agreement. A plea bargaining agreement can involve:
- Participation in DUI classes
- Community service or 48 hours in the jail
- Pay a fine of about $390
During 2nd offense DUI , it is advisable to take the above plea agreement offers, which the prosecutor may offer if no aggravating factors surround the offense like personal injury cases. Most DUI criminal cases will not reach trial if you decide to take the plea agreement offer. Unless there are aggravating factors that make your 2nd offense DUI severe or if you feel you've got enough evidence to win the trial case. Due to the uncertainty of trial cases, it is advisable to take a plea agreement.
For most misdemeanor DUI criminal cases, seeking a plea agreement is a good idea. After all, it reduces tremendous stress on prisons and court systems because people receive criminal charges almost every day. However, if there is no other option in your case rather than proceeding to trial, we don't back down at Orange County Criminal Lawyer. We will be by your side throughout the process to ensure a favorable outcome from the DUI trial. During the trial, you should expect the whole prosecution team, including:
- The prosecutor
- The prosecutors' witness, who is usually a forensic toxicologist
- The arresting officer(s)
The whole prosecution team will prove that you were drunk driving against California Vehicle Code 23152(a) VC. The arresting officers will try to testify about everything you did wrong to show that you didn't have the physical and mental capacity to drive a vehicle like a cautious sober driver, for example:
- Driving erratically
- Poor performance in field sobriety tests
- Objective signs of intoxication like slurred speech and red/watery eyes
The prosecutor must also present evidence of the BAC level to prove that you didn't have the mental and physical ability to drive like a cautious driver. According to California Vehicle Code 23152(a) VC, you will be guilty of DUI if your BAC test results were at 0.08% or above.
Penalties For 2nd Offense DUI California
If the judge finds enough evidence to incriminate you for 2nd offense DUI , you will be facing the following penalties:
- At least 96 hours and a maximum of one year in the county jail
- 3-5 years of summary probation
- Complete a court-approved DUI class
- Pay a fine of ranging from $390-$1,000
- Install an Ignition Interlock Device (IID) in your car
If the jury imposes probation on your sentence, you must stick to the probation conditions to avoid trouble when clearing your DUI conviction record in the future. Some of the conditions that come with DUI summary probation include:
- Restitution in case of an accident leading to damages
- You should not commit any other criminal offense while on probation
- Installation of IID in your car for three years
- You should not operate a vehicle under any measurable amount of alcohol in your breath or body
The judge will also consider the following aggravating factors surrounding the offense when deciding the right penalty suitable for your violation:
- Being with a child below the age of fourteen years in the car
- Causing an accident
- Having BAC of 0.15% and higher
- Having a minor who is under 21 years in the car
- Refusing to take sobriety tests
Viable Legal Defense for 2nd Offense DUI
Your attorney can raise numerous legal defense arguments to fight these charges on your behalf during the trial. The most common legal defense arguments for 2nd Offense DUI charge include:
- The Arresting Officers Didn't Follow the Right Instructions
It is possible to question every part of your DUI investigation since the arrest. The arresting officers can make several mistakes during the DUI investigation, which can override your alleged DUI charge, and your attorney can use them as legal defense argument, for example:
- Acts of police misconduct
- Faulty or contaminated equipment for BAC tests
- Lack of probable cause or suspicion for DUI arrest
- Alcohol Intoxication Was Not The Reason for Your Driving Issues
Since sober people are also accountable for most traffic violations, it is possible to question the arresting officer's validity to pull you over at the DUI checkpoint. Furthermore, the attorney can argue that your driving issues were non-alcohol-related, for instance, if there was a reasonable momentum distraction.
- Other Factors Lead to Your Objective Signs and Symptoms of Intoxication
Your attorney can counter the arresting officer testimony about you displaying objective signs and symptoms of intoxication, for example, slurred speech or red eyes, which can be due to other factors such as:
- The sun
If those kinds of factors lead to your objective signs and symptoms of intoxication, it will not count as substantial evidence to incriminate you. Your attorney should be careful when arguing this legal defense strategy because those signs and symptoms could be due to drug withdrawal, which is also unlawful as per California Vehicle Code 23152(a) VC.
- Your Performance in Field Sobriety Tests Does Not Measure Alcohol Impairment Accurately
Your attorney can question the validity of some field sobriety tests like one-leg stand and how the arresting officers administered the tests. These kinds of questions are important to show the judge that you did many things right more than what you did wrong. Therefore, your performance in field sobriety tests is not enough to prove that you were drunk driving.
- The Breathalyzer Test Results Was Not Accurate
Use of breathalyzer during DUI test and investigation is not an accurate measure of driving under the influence because there are other factors which can make the breathalyzer detect alcohol in your breath, for example:
- Rising blood alcohol/residue mouth alcohol
- Medical health condition like gastroesophageal reflux disease/acid reflux
- High carbohydrate or protein diet
- Inherent errors with the BAC testing equipment
A 2nd offense DUI arrest within ten years following your 1st DUI charge can be a daunting and stressful challenge. What you do immediately upon a 2nd offense DUI arrest will be vital when creating viable legal defenses. Ensure you take ample time when choosing a criminal defense attorney for legal representation to avoid settling for mediocre services.
Tips to Help You Find a Reliable DUI Attorney Upon 2nd Offense DUI
When you choose a reliable attorney who is aware of California DUI laws, it is possible to leave the trial with a dismissal or acquittal of the charges. To ensure you have the best attorney by your side for a 2nd offense DUI charge, you should consider the following factors:
Expertise and Experience of the Attorney
Look for a law firm with professionals who specialize in DUI charges because DUI laws keep changing, and it takes an expert in this field to know which legal defense will apply to your specific case. Further, the longer the experience he/she has on this professional line, the better because every client's DUI charge is different in nature and circumstances.
The Attorney Personal Qualities
For a comfortable working relationship with your attorney, you should consider his/her personal qualities before signing any working agreement. Make sure you find a friendly and courteous lawyer who takes time to understand you and answers your questions in the best way possible in a language you can understand better. Pay attention to your prospective attorney's personal qualities and communication skills during your first appointment to notice any red flag that shows incompetence like stammering.
Location and Reputation of the Attorney
If you receive a DUI criminal charge location in Orange County, you should find an attorney within this location because court processes are different. Furthermore, an attorney who serves this location will be aware of most prosecutors and judges' sentencing tactics during DUI criminal prosecution. Thus, you can be sure of knowledgeable legal defense strategies.
Apart from finding an attorney within your location, you should also make sure the expert has a credible reputation among his/her past clients. Past client comments on your prospective attorney website and social media platforms, whether negative or positive, say a lot about the attorney's quality of services and reputation among his/her clients.
Cost of Services
Finally, you should find a DUI attorney who will suit your budget. However, you should never compromise an attorney's quality of services for a cheap fee because most mediocre experts will settle for any price. Look for an expert who provides you with an open service fee without any hidden figures, and convenient payment means that suit you best.
Frequently Asked Questions About 2nd Offense DUI California
Suppose you already have a 1st DUI conviction. In that case, you must be wondering what will happen for your 2nd offense DUI, and it's okay to ask relevant questions to make knowledgeable decisions that cannot incriminate you during the investigation. Below are the most frequently asked questions about the 2nd offense DUI:
Will I Have a Permanent Criminal Record After 2nd Offense DUI?
No, you can remove a 2nd DUI conviction record by filing an expungement petition as long as you complete your probation successfully without any violation because that may affect your eligibility for this form of post-conviction relief.
If the judge grants you an expungement after completing a 2nd offense DUI sentence, you will enter a new plea of "not guilty," and the judge will withdraw your earlier plea of guilty or no contest. An expungement eliminates all your DUI conviction records and disabilities arising from the conviction to make job applications and live a life without a conviction history.
Can I Refuse to Take Preliminary Alcohol Tests During DUI Investigation?
During DUI investigation, the arresting officers will administer a series of sobriety tests to determine if you were drunk driving, including blood alcohol concentration (BAC) tests at the police station. You must cooperate with every DUI investigation requirement because it can affect your eligibility for an expungement. Refusing to cooperate or take a breathalyzer test can lead to mandatory 96 hours in prison in additional and consecutive to your baseline 2nd offense DUI charge.
If you already have a 1st DUI charge, you already know the consequences are unpleasant and can even become worse for your 2nd DUI charge. Therefore, it is wise to speak to a criminal defense attorney as soon as possible to gather more information and pieces of evidence to counter these charges before they even reach trial.
At Orange County Criminal Lawyer, we believe if you are aware of the potential consequences of a 2nd Offense DUI and how the court works, you will make the right decisions when you receive an arrest for a 2nd offense DUI. You can contact us at 714-262-4833 from anywhere within Orange County, California.