Every motorist in California knows that any DUI case is taken seriously in the eyes of the law. The problem with handling these types of cases is that they come with secondary consequences; meaning there are other offenses that follow. It does not matter if the case is a misdemeanor in the first, second or third case, it will still cost you a pretty penny. Those are some of the reasons as to why the Vista DUI Attorney will take careful consideration of their client’s cases and develop various techniques of handling these court cases and DMV hearings. For years now, the Vista DUI Attorney’s office has cracked the code on DMV license suspension cases. We are known not only for our experience in DMV license suspensions for a DUI but also the time and effort we put into your case so that you are able to drive again.
Understanding the Offense
It is illegal to drive under the influence in the state of California, which is why with a second DUI, the repeat offenders usually face harsher punishments. Understanding the offense is the first move for anyone not wanting to get a second license suspension.
The vehicle code 13352(a) allows second time DUI offenders to appeal for a restricted license, but it also requires them to install an IID device within the ninety days of the suspension. IID stands for ignition interlock device, which is a breathalyzer that requires the defendant to blow through the mouthpiece, in order to start the motor vehicle.
In California, there exist two ways in which a second DUI offense can prompt the enforcing of a suspension to any license by the DMV. They include the following;
1) The suspension of the license was initiated as an outcome of a DUI conviction under the 23152 (a) VC by the California courts.
2) APS suspension: The suspension was initiated by the individual, for not requesting a hearing to the DMV, after the required time frame of ten (10) days. You were found culpable by the DMV and lost the hearing in connection to your DUI arrest.
It is important to note that if you are arrested under the influence, you will face two separate legal proceedings. Both of them will determine the consequences of your driving license. They include:
- A criminal charge for the DUI in the criminal courts of California, and
- The California Department of Motor Vehicles (DMV) administrative hearing.
Both of these proceedings are autonomous, meaning that they are independent of one another. The DMV hearing will deal with the driving entitlement and the consequences encompassing the arrest. The court will prove whether you are innocent or guilty of the DUI offense and order the suspension to the DMV. There are some key differences between the two that you need to note:
- It is a personal choice to have a hearing with the DMV and also if you should have a DUI lawyer representing you or not. The courts' process is quite different since it demands either you or the attorney to be present at the hearing.
- A win with the DMV has no consequence on the court case. The only assignment they have is related to administrative action, where they decide on your driving privileges. The assessment by the DMV is independent and separate from the DUI charges and the penalties that follow.
- You can renew or request for a hearing with the DMV one (1) year from the date of the DUI arrest. If the court charges were terminated or not filed, you could request for a new hearing in accordance with the California penal code 1538.5.
Suspension of the License Under Vehicle Code 23152 (a), 23152(b) and 23152(f).
Vehicle code 23152(a) is the law that defines driving under the influence of alcohol. It also includes the penalties that come with it. Although there are many penalties, we will discuss license suspension in this topic.
For 23152(b), it sets the “per se” description of your DUI, which is driving with a blood alcohol content (BAC) of 0.08% or higher. Most individuals who get arrested for DUI will be charged under these two laws. Both are different and separate misdemeanor offenses: 23152(a) and (b). It states that a driver is under the influence of alcohol if they cannot drive like a sober individual under comparable circumstances.
There is also the vehicle code 23152(f) and (g), which defines what driving under the influence of drugs is, (DUID). The following is what you can get arrested for:
- Any drug whether illegal, prescription or over the counter.
- A combination of any drug and alcohol.
What a Prosecutor Must Prove to Attain a Second DUI and DUID Conviction
For the prosecutor to get a conviction under 23152 VC, they must prove the two elements (2) of the crime;
- The defendant was driving the motor vehicle; and
- The defendant was under the influence of both alcohol or alcohol and other drugs.
When you are observed by an officer driving, the first fact is satisfied under the legal definition of the Vehicle Code 23152 (a). But there are other scenarios that would play out if that was not the case. What if you were involved in an accident? Were you asleep in the car? Was the motor running? Was the vehicle moving? It is not enough for the prosecutor to prove that you were indeed under the influence, but they need to prove that you were driving under the influence. Driving can be proven by circumstantial evidence or be explained as some sort of movement of the vehicle.
Under the influence:
The alcohol or drugs in your system impaired your judgment to the point where you could not drive the vehicle as someone who was not intoxicated. The manner of the driving does not conclude to you getting a DUI. It’s a factor that the jury will consider when they take a closer look at the case.
Since 23152(a) and (g) is a subjective offense, the prosecutor’s team will attempt to prove that you were driving under the influence by relying on the officer’s observation. The observation will include your driving pattern, your physical appearance and your performance on the sobriety tests (FSTs). Driving patterns include weaving and driving unpredictably.
Physical appearance under 23152(a) VC which include red watery eyes, slurred speech, the odor of alcohol on you and wobbliness of your feet. The prosecutor will be allowed to introduce evidence of the BAC results to prove that you were under DUI. The 23152(b) VC instructs that if the test is 0.08% or higher, they are required to state that you were under the influence, although not necessary.
Penalties of the Second DUI Offense
For you to be found guilty of this offense, you must have had a first DUI offense in the last ten (10) years. The penalties will include; jail time of between ninety-six (96) hours to one (1) year in county jail, and fines ranging from three hundred and ninety dollars ($390) to a thousand dollars ($1000).
Under these circumstances, the judge will urge the DMV to suspend your license for two (2) years, for both DUI and DUID. For those charged with alcohol DUI, you can apply for a restricted ignition interlock license after serving ninety (90) days of the actual suspension. The term for the IID device is usually up to one year.
The following are the requirements needed for you to qualify for an IID-restricted driving license:
- You have to clear any unsettled suspension or revocation on your driving record.
- You have to comply with the DUI programs requirements and submit an appropriate Proof of Enrollment certificate which is known as a DL 107 or provide a DL 101 (Notice of Completion Certificate) to your California DMV.
- You will have to submit a California insurance Proof certificate known as SR 22. This is issued by the insurance company so as to establish financial responsibility.
- You will need to provide DL 920 to the DMV and install an IID from the supported companies.
- Clear all required fees.
For those who fall under Drugs DUI, there is an exception if the results found a mix of alcohol and drugs. You automatically get a direct automatic suspension if this is the case. For a drug DUI driver, you will have to complete one (1) year of suspension for you to apply for a restricted license with the courts.
Second DUI Offense at the DMV Proceedings.
Under the state of California, if you have a hearing on a second DUI offense then you should know that the California DMV will have the right to suspend your driving license under the administrative per se violation. In case the results of the Blood alcohol content tests are found to be below 0.08%, no license suspension will be issued by the DMV as per the APS regulations.
Nonetheless, if the BAC results are 0.08% or higher, you will have ten (10) days after the arrest to appeal a DMV hearing. The effect for appealing is the DMV will temporarily hold or rather stay on your license suspension until the results of the hearing. On the other hand, if you do not request for a hearing within the given time frame, the DMV will instinctively advance with the suspending of the license.
All these situations will be explained under the temporary license you received after the arrest. The temporary license is a pink printed paper, note that the pink license will expire within thirty (30) days after the arrest.
Unlike the Court, there is no judge, but DMV officers at the DMV hearing. The atmosphere is quite different. Most attorneys describe it as hostile, but it might be different for another attorney.
To be fair, the officers have to listen to their fair share of senseless arguments from individuals who are not lawyers, thus the short patience. This is the reason why you should get an experienced DUI defense attorney to represent you in the DMV hearing.
The inquiry will involve three (3) main issues. These issues are concerned with whether to suspend and are part and parcel of the DUI procedure:
1) If the arresting officer had any reasonable cause to arrest the individual in violation of vehicle code 23152 driving under the influence.
2) Was the individual arrested lawfully?
3) Was the arrested individual’s BAC 0.08 or higher? This is under vehicle code 23152.
Additionally, if the driver refused to give or submit urine, breath or blood test, the issue will include whether the individual was warned of the implications of not taking the test.
For most of the lawyers, this is the time to check if the evidence is what was reported and check for errors. If the defendant is capable of testifying about the circumstances of the arrest, then the attorney can bring an expert to criticize the blood results from the police. The attorney could subpoena the breathalyzer servicing and tuning logs, where they show a history of errors and mistaken analyses.
They could also summon the officer involved in the arrest, so they can appear at the hearing. Your lawyer could question anything concerning with the officer which include illicit testimony on poor DUI drills and the mistakes that they committed during the investigation. The testimony of the officer can be crucial to negotiating a reduction in your court case if other negotiations fail
The DMV hearings will finally conclude and the DMV officer will take the issue into deliberation, writing down the findings. The said findings will be mailed after one (1) to thirty (30) days. In the event that you are found to be in favor of the DMV, your license will not be suspended unless the criminal court demands it.
Sometimes when the DMV findings find you guilty of the offense, the suspension of your license will go into effect after receiving the notice, several days later.
Frequently Asked Questions Regarding a Second DMV License Suspension
- What are my options after losing a DMV hearing?
It is natural to consider an appeal, but this is from a belief that the DMV might have ignored the evidence, misapplied the law or the suspension is hurting your career. You should learn that an appeal will not stop the license suspension, particularly as a result of the appeal being expensive. There also is a huge possibility that you may never reach a ruling before the suspension ends. In the case of a second DUI for a commercial driver, it is important you contemplate an appeal.
- How do I obtain a restricted license after the DMV License Suspension of my second DUI?
Restricted license falls into two categories; IID restricted license and restricted license.
IID restricted license
The California DMV will allow defendants who fall under the given laws to drive during their suspension that is if they agree to install the ignition interlock device (IID). This is referred to in the California Senate bill 1046 of 2018. The procedures to follow include:
- An individual needs to fill and file the sr22 form.
- Complete the DUI School program.
- Pay all the fees that are related to getting the IID restricted license.
For a second DUI, the IID restricted license will last for one (1) year.
This license will enable the individual to drive to specific destinations of either employment or school. They will be required to fill and file an SR22 form for either a restricted license or a full reinstatement of the individual license. There is also a requirement for the individuals to maintain the SR22 form with the DMV.
The time required to maintain is three (3) years from license reinstatement date. For the APS suspension, it is one (1) year if it is your second DUI in the last ten (10) years. If you completed a chemical test and showed proof of installation of the IID, the DMV can hand you a restricted license after ninety (90) days. The license will give you fewer driving restrictions as long as the IID is installed. The time frame for the restricted license is twelve (12) months.
For those who did not submit the chemical test, the penalties are tougher. They include; license revocation of two (2) years and no restricted license during their suspension period.
What are some of the legal defenses used against a DUI or DUID?
Rising BAC: Rising BAC is a situation where you find that your BAC is lower while you were driving. When taking the FSTs several factors can cause your BAC to rise. The reason for this possibility is brought by the body not ingesting or metabolizing the alcohol immediately. This reason can be cleared by the second test if the two tests are not similar, the test cannot be used as evidence for a DUI.
Medical conditions mimic drug impairment: Many medical conditions will mimic signs that are related to drugs, they include fatigue and anxiety among others.
Chemical test results were inaccurate: There are many reasons for inaccurate results even if you tested positive for drugs. Vehicle code 23152 (f) and (g) gives examples; through contamination of the medical equipment and improper storage of blood samples.
Find a Vista DUI Attorney Specializing in DMV license Suspension Near me
The second California DMV license Suspension is complicated and it takes a seasoned DUI attorney to help you get the best result in your DMV hearing. If you are faced with a second offense DMV license suspension in Vista, CA and North County, call the Vista DUI Attorney Law Firm today at 760-691-1540 and talk to one of our attorneys regarding your case.