The state of California has stringent laws when it comes to driving under the influence (DUI). However, the punishments for a DUI conviction vary due to two significant factors. These are:
- If the defendant has a previous DUI conviction on their record
- If a person was injured or died because of a person driving under the influence.
If a person is arrested for driving with an alcohol content beyond the legal limit, they are charged with DUI offenses. DUI offenses are prosecuted as priorable offenses. What this means is that with repeat offenses, the consequences for a DUI get more severe if committed in a ten-year time frame. If you or a loved one is facing prosecution for DUI charges, second offense, hiring a defense attorney is your best move to avoid severe penalties. Talk to us at Orange County DUI Defense Attorney Law Firm, and we will gladly advise and take up your defense.
Overview of DUI Laws in California
Many of the reported DUI cases in California are prosecuted as misdemeanors. However, depending on the circumstances around the DUI offense, it can also be charged as a felony. For a second time offender, if a person is injured during the crime or the defendant caused an accident that resulted in a death, the charges are no longer a misdemeanor but a felony.
Understanding a Misdemeanor Charge
If a person is convicted of a typical DUI charge as a second offender, most likely, they will be prosecuted under misdemeanor charges. California defines misdemeanor charges like those that carry a maximum jail sentence of one year. A misdemeanor is a more serious offense than an infraction but less severe than a felony.
There are two categories under which misdemeanors in California fall:
- A standard misdemeanor that is punishable by county jail time of not more than six months or a fine not exceeding $1,000
- An aggravated or gross misdemeanor that is punishable by jail time not exceeding a year. This is in addition to or a fine not exceeding $1,000.
Understanding a Felony Charge
Any crime that is punishable with jail time of over a year is described as a felony in California. A person found guilty of a felony can equally receive hefty cash fines in addition to or as an alternative to imprisonment. A judge in a felony offense can also sentence the defendant to formal felony probation.
Second Time DUI Penalties in California
Most people that find themselves arrested for a second DUI offense in California have concerns about the penalties for the DUI offense. They wonder how the punishments they will receive differ from those given in their first DUI offense conviction. There is no straightforward answer to address these concerns. However, we will attempt to discuss a basic outline of what one can expect if they are charged with a second time DUI offense.
If you find yourself convicted for a second-time offense of driving under the influence, the standard penalties the court will hand to you include:
- Summary or informal probation that will last between three and five years
- County jail time of between four days to a year
- Cash fines ranging from $390 to $1,000. This is in addition to other penalty assessment fees of $1,000
- A requirement to attend a DUI school approved by the state of California for a period of 18 months to 30 months
- An obligation to install an ignition interlock device (IID) in your vehicle for one year
- A suspension of your driver’s license for two years. However, one can apply for the suspension to be changed to a restricted driver’s license that allows them to drive to specific areas. If a person wants to be able to drive to any place, the defendant can apply for an IID driver’s license that is also restrictive.
Of importance to note is that if a DUI sentence includes probation, there are various conditions included. These are:
- The defendant is prohibited from driving with any alcohol quantity in their system that is measurable
- You are expected to readily allow a blood chemical test, breath and sometimes urine test for any subsequent DUI arrests you may face
- You are prohibited from committing additional crimes.
Depending on various circumstances around the offense, a second DUI charge in California probation carries the following conditions:
- The defendant must attend Narcotics Anonymous (NA) or Alcoholics Anonymous (AA) meetings
- Take part in the impact program known as the Mothers Against Drunk Driving (MAAD)
- If your drunk driving resulted in an accident, you would be required to pay restitution
- You must agree to install an IID device on all the cars you operate for three years
Can you Lose Your Driver’s License Due to a Second DUI Conviction in California?
In California, only the Department of Motor Vehicles (DMV) can suspend or issue a restricted driver’s license to DUI offenders. For your license to be suspended by the DMV, there are two triggers. These are:
- A suspension can result from a DUI conviction in a California court for a VEH 23152(a) or (b) violation
- A suspension because you failed to request to have a DMV meeting or hearing in the ten days after the arrest, or you went for the hearing, and you lost. This kind of suspension is known as the Administrative Per Se suspension or the APS suspension.
If there was a single previous conviction in ten years on either wet reckless or DUI, the suspension of your driver’s license by the court would be two years.
However, an APS suspension where the defendant has a previous conviction of a DUI charge within the ten years usually is one year.
A defendant can also apply for a restricted driving license 90 days after the arrest if:
- The defendant agrees to take a blood chemical test
- Provides evidence they have installed an IID device in their vehicle
A restricted license enables a defendant to drive to any location. This is on the condition that their vehicle is installed with an ignition interlock device. The restricted license issued by the DMV is valid for only 12 months.
However, if you are facing your second-time offense and you refused to agree to have a chemical test done, the penalties will be more severe. In this case, your driver’s license will be revoked for two years. Additionally, you do not qualify to get a restricted license while your license is suspended.
It is important to understand that there exists no compromise when it comes to the IID requirement for a year. Installing the device will enable you to get your restricted license immediately after your 90 days waiting period.
Before you get your restricted license; however, the record from the DMV must indicate that the suspension initiated by the court is already enforced. Getting your restricted driver’s license is based on having completed 90 days of suspension issued by the DMV.
Can one Get a Criminal Record if Convicted for a Second Time DUI?
The law allows for second-time offenders to have their records expunged. A defendant can expunge their DUI conviction in California if:
- The defendant was given a probation
- The defendant was successful in completing their probation period
The same process used to expunge a criminal record is the same process used in expunging a DUI record. Your lawyer files a petition, and the judge is given time to review it. When the judge allows for the expungement of the DUI conviction, the defendant can withdraw their guilty plea and enter a “not guilty” plea. After the new plea has been entered, the court dismisses the case.
What Aggravating Factors will Enhance Penalties From the Court or DMV
The presence of various circumstances during a second DUI offense can trigger harsher penalties if convicted. Some of the circumstances are:
- The defendant’s blood alcohol content is 0.015% or more
- Defendant’s refusal to agree to get a chemical test done
- The defendant having caused an accident
- The defendant being below 21 years when they were arrested for a DUI
- Excessive speeds while driving
- Driving with minors below 14 years in the vehicle that falls under PEN 273a, Child Endangerment
The enhanced penalties a defendant would receive due to the above circumstances will also depend on the following factors:
- The criminal history of the defendant
- The actual circumstances of the arrest.
If the defendant had a previous conviction on a DUI charge in addition to the aggravating factors listed above, the penalties given would be more severe.
DUI Penalties for a Second Time Offender
California counties issue different penalties to offenders. Here, we discuss specific penalties for offenders.
If a defendant is convicted of a second DUI charge, they are likely to be sentenced to the following penalties:
- A summary or informal probation of between three and five years
- Cash fines and other penalties approximating to $2,000
- Imprisonment in a county jail for between 96 hours and one year. In many cases, offenders in Orange County would receive jail time of between 45 days and 90 days in county jail. However, this sentencing is often converted to house arrest or confinement
- A defendant is expected to attend and complete a drug and alcohol program that runs between 18 months and 30 months
- The judges in Orange County can also assign extra duties to the defendant and ask them to do community service or attend Alcoholic Anonymous classes
- The defendant is expected to install an IID device in their vehicle for a year
What the Prosecutor Must Prove
A second time DUI offense in California is prosecuted as a misdemeanor. The defendant is tried before a jury, and the prosecutor is expected to present evidence that:
- The defendant was driving while intoxicated by a particular substance
- The defendant failed in one or several of the sobriety tests submitted in the field
- The defendant had signs of intoxication as well as the smell of alcohol. Classic signs include bloodshot eyes, slurred speech among others
- That the defendant’s blood test or breath tests resulted in the blood alcohol content of over 0.08%
- That the defendant caused an accident and it was as a result of drunk driving
Can an Attorney Help You with Your Second Time DUI Charges?
When a person is arrested for a DUI, they are going to face harsh penalties. When arrested for the second time DUI charge, the penalties are harsher and can be challenging to defend. However, with the right defense attorney, it is possible to get your charges dismissed or get yourself acquitted.
For you to be able to attain this, you must immediately upon your arrest get in touch with an experienced defense attorney specializing in DUI cases. For a solid DUI defense, your lawyer will do a lot of work, which most of it is necessary to be accomplished within the first few hours of arrest. Some of the main reasons to get a DUI defense attorney are:
- Collection and Analysis of Evidence
An experienced DUI attorney understands how to gather and analyze all the available evidence necessary to help with defending you. This will involve issuing subpoenas to witnesses able to give credit to your case. Requesting for the police video and audio recordings from the scene of the arrest is also necessary. For instance, in the recordings, it may indicate the police officer stopped you because your car had no license plate at the front. However, evidence from the recordings may show that the police officer was unable to see your front side of the car before stopping you. If this is the case, it may be essential in destroying the testimony by the arresting officer.
- Writing and Research
In addition to the need to have a lawyer gather and analyze the evidence against you, the defense lawyer will use the information to write various motions with regard to your charges. For instance:
- If you have a reason to believe that the officers around your arrest on DUI charges targeted you unfairly, or
- Their treatment was unprofessional
This would lead to police misconduct. With this kind of information, your lawyer can submit a Pitchess motion. The purpose of this motion is to enable your lawyer to find out more dirt against the arresting officer from their personnel file. This motion is normally heard before the trial begins. This is aimed at giving your defense ammunition necessary to win against your charges.
- Plea Bargaining
Hiring an attorney is also essential because they can enter plea bargains on your behalf. Most DUI cases hardly get to trial. However, having an experienced DUI defense lawyer is crucial as they must hold discussions regarding your matter with the District Attorney. With these discussions, you may end up pleading guilty for a lesser charge that attracts lesser penalties as opposed to the original charges you have been arrested for.
Can One Avoid Jail if Convicted on a Second DUI Charge in California?
The state of California allows for various options to substitute traditional jail time if convicted of a second DUI charge. These options include:
In many counties, the courts will approve private jails that are similar to city jails. These are simply jails found in police departments where the defendant feels the environment is more friendly than the harsher county jails. For a person to be allowed to stay in these jails, they must pay for their stay. Upon completion of the time ordered by the court, they issue the defendant with a certificate to show the end of the jail time.
On conviction and you get sentenced to the county jail, with a relatively clean record, you can request for home monitoring from the department of probation. If your request is approved, you can do your jail time from your home. This program also requires one to pay to the probation department for every day stayed.
This is a program where defendants are allowed to continue with their day jobs and come back in the evening to jail to sleep. You could also go to work at the prison and sleep at home at night.
A defendant can also apply to the court to have electronic monitoring that restricts the defendant to stay at home at night and can go to work during the day.
Other Associated Charges to a Second time DUI Offenses
If a person is arrested on a DUI charge for the second time and causes bodily harm, it may lead to a felony charge. Injuring another person while driving under the influence in most cases results in extra jail time. The offense moves from a normal one of a misdemeanor and becomes a wobbler offense. This means that the defendant can face either misdemeanor or felony charges depending on the degree of the injuries.
If convicted as a felony, the defendant can face between 16 months to 10 years imprisonment in state prison. A consecutively running jail sentence of between one and six years based on the number of people injured and the seriousness of the injuries can also be imposed.
- PEN 191.5(b), Vehicular Manslaughter
If the defendant commits a DUI accident and a person is killed, and the prosecution believes it to be the defendant’s fault, they will charge you with PEN 191.5(b). Violations under this charge are wobbler offenses meaning they can be prosecuted as either a felony or a misdemeanor.
Should the defendant be convicted as a misdemeanor, they will face a county jail time of not more than a year. If convicted as a felony, the defendant faces 16 to 24 months of state imprisonment.
- PEN 191.5(a), Gross Vehicular Manslaughter
If, during your DUI, you caused an accident that resulted in the death of a person, you will be charged with PEN 191.5(a). This is only possible when the prosecution has reason to believe it was due to your negligence. This is a felony offense, and if convicted, the defendant is likely to face:
- State imprisonment of either 4, 6 or 10 years
- 15 years to life imprisonment in state prison if with a prior PEN 191.5 conviction
During the accident, if there were survivors that suffered bodily injuries, the defendant will face more severe penalties. Additional as well as consecutive three to six imprisonment in state prison is faced.
- Second Degree Murder – DUI
If you caused a DUI accident that resulted in the death of another person, a prosecutor could decide to prosecute you on second-degree murder. This is also known as Watson Murder charges in California. This is the case when the person that caused the DUI accident consciously displays disrespect to human life.
Of all DUI offenses, this is the most serious and carries severe penalties. If a defendant is convicted of the offense, they face state imprisonment of between 15 years and life.
Possible Legal Defenses
When you are facing a second time DUI offense charge, there are various defense strategies that your lawyer can use to get you out. Some of these are:
- Errors in blood tests – there have been reports of errors while conducting blood or breath tests on suspected DUI offenders. Your lawyer can use this defense strategy to challenge the results of the chemical tests.
- Rising of blood alcohol – scientifically, there is an amount of time taken by alcohol to absorb into one’s system. If a person is arrested within this period, the alcohol levels are usually high as opposed to when one is settled. These results are likely to show a wrong indication of your alcohol content, and your lawyer can use this to argue your case
- You were not responsible for the accident – your lawyer can challenge the prosecution to produce evidence that suggests you were responsible for causing the accident
- Breath test error – the gadgets used to conduct a breath test sometimes can be faulty or mishandled, resulting in wrong reports.
Find An Orange County DUI Attorney Near Me
DUI charges attract hefty penalties in California, with second-time offenders getting more severe penalties. A DUI conviction can also lead you to have a permanent criminal record that can cause you many inconveniences. If you are charged with a second time DUI offense, you need to get in touch with a criminal defense attorney to prepare your defense immediately. Get in touch with us at Orange County DUI Defense Attorney Law Firm and let us fight the charges for you. Call us today at 714-740-7866 and let us book an appointment to discuss your case immediately.