It’s not unusual to get a second offense DUI in California especially because it is given within a range of 10 years after the first DUI conviction. What you should know is that a second-time DUI offender will always face a rougher sentence compared to a first-time DUI offender. While the judge will look at it as if you have a drinking problem, some people find themselves facing a second offense DUI charge without really wanting to break the law. In such a case, you need to have a proper defense to help you fight the stricter penalties you are likely to face. A Vista DUI Attorney is your best option to represent you in court if you are in Vista, CA or the greater North County.
Legal Definition of Second Offense DUI
There are mainly two instances you could be convicted of driving under influence in California:
- When you have a Blood Alcohol Concentration, popularly known as BAC, of 0.08% or more. This only shows the amount of alcohol in your system by the time you are being detained; and
- When you are under the influence of drugs, alcohol or a mixture of the two. This means you are utterly incapable of operating a vehicle, notwithstanding your BAC test results.
A DUI will be considered a second offense if you have had a similar conviction within the past ten years. Nowadays, driving under influence is a grave offense, carrying severe consequences. If you have recently been under arrest for DUI, you could face strict punishments, including a longer jail term.
It is important to note that there are no exceptions in DUI. When it comes to drug influence, it can practically mean all kinds of drugs that are capable of impairing a driver, including medicines that have been recommended by a physician and those bought from a drugstore. This means that one can be charged with DUI if they are found to have any type of drug in their body. There is a long list of drugs that can result in serious side effects as well as impair a driver, affecting their capacity to drive well. Some of these are:
- Pain medications
- Medications for allergy and cold
- Anti-anxiety drugs
All types of medicines believed to have dangerous side effects including drowsiness and dizziness are not suitable to take right before taking a ride.
Penalties imposed by the courts vary when it comes to DUI. The biggest concern when determining the possible penalties is whether the second offense DUI is a misdemeanor or a felony.
According to Section 23152 of California's Vehicle Code, a DUI misdemeanor offense is one that does not include any injuries. A felony on the other hand, as per Section 23153 of the same Penal Code will involve someone other than the driver who might be hurt seriously or on the verge of dying.
A person convicted with a misdemeanor DUI for the first time may end up in jail for a period of not over six months, which could go up to 1 year with other DUIs that will follow. The fine in such a case could be as much as $1,000.
Always note that subsequent DUI offenses will come with stricter punishments than previous crimes. If therefore you are facing a second conviction within ten years from the first conviction, you might encounter a compulsory jail time. Even though the court was considerate with you the first time, it might consider you a reckless driver the second or third time.
The Court Proceeding for the Second Time Offender
There is not much difference in what happened the first time you were convicted for DUI and what will happen the second time. Most of what happened during the court proceedings of the first time DUI are what will happen with the latter case. In that case, get ready to surrender your driving license as well as get a temporary one that can only be useful in ten days before you arrange for an administrative hearing with the Department for Motor Vehicles (DMV). The ten days are inclusive of weekends; therefore, quick action is required if you are not ready to lose your license to automatic suspension of one year.
Getting an attorney fast, in this case, is vital, and should be done immediately you make a hearing request. It is during this hearing that your attorney will get to hear your reasons to behave the way you did to be able to prepare a good defense for your case. An attorney will be of great help too if you lose your license to a one-year suspension. In the event your case is dropped, it will be easy to recover your license if you have a lawyer by your side.
What Does the Judge Consider?
There are mandatory DUI penalties in California that are already in place for anyone found guilty of driving under influence. The law in the state mandates the sanctions to be kept at a minimum, though the judge may go beyond that mandate depending on the severity of the crime. By the end of the day, it is the judge who decides whether or not to grant the offender probation or refer them to jail for the first misdemeanor DUI offense. Today, however, DUI laws have expanded, and they are all geared towards deterring the crime.
Some of the possible sanctions you could face for a felony or misdemeanor DUI offense include:
- Your vehicle could be forfeited or impounded
- An ignition interlock gadget may be required
- You could serve some time in a state prison or county jail
- Restricted, suspended, or revoked driver’s license
- A fine and/or restitution
- Treatment for drinking and driving
An offender's prior convictions will be the primary consideration in determining the penalties of a second offense DUI. If you have had a DUI crime in your record, or any crime related to DUI, the previous similar cases will be used in determining the kind of sentence the judge will pass for the second offense.
If for instance, there is a similar conviction within a period of ten years, you will inevitably lose your privileges to drive for a period of time, which can go up to two years. This is more than you get on your first conviction for DUI, whereby you lose your driving rights for a maximum of six months. A similar penalty will apply if you are found to have a BAC of 0.08% or more.
In addition to losing your driving privileges and possible jail time, a second offense DUI will affect your life even more. A longer suspension of your driver license will, for instance, make it hard for you to operate on a day to day basis. You may not be able to run your errands as usual and get to work/home on time. A family person may not be able to meet the prerequisites of his/her family effectively.
The Plea Bargain
During the court proceedings, the prosecutor may offer you the plea bargain as a way to decide the best verdict for your offense. What happens is that the prosecutor will give you an option to plead guilty for a lesser offense, promising you a lesser sentence for it. While this may be attractive, it could be a trap and the other primary reason why working with an experienced attorney is needed.
When working with an attorney, he/she already knows the evidence presented against your case and how significant that evidence is. The amount of evidence and whether or not the evidence is serious will help your attorney advise you to go for or against the plea bargain. Note that there are times when plea bargains are the best option for an offender and there are times they are not, and an attorney will know that. Besides, if the prosecuting attorney is sure of your conviction, he/she will not think of the plea bargain in the first place. In that case, allow your attorney to think about it before you accept or reject it.
If in any case, your attorney thinks that the plea bargain will be a good idea and you accept it, you will be required to start serving a sentence immediately the verdict is made. This will also signify the end of your case.
If you reject the offer and the claim goes to trial, the prosecutor will have to do his/her best to prove to the court that you are guilty of the offense. For this to work in the prosecutor's favor and against you, he/she will be required to prove that you indeed were the one driving the car and that alcohol and/or drugs found in your system had impaired you. The prosecutor will also be expected to show that your BAC test indicated at least 0.08% of intoxication or that you are hooked into drugs or alcohol.
This will also be the point where the DA will show the court that you are not even a first time offender by providing evidence of your previous DUI conviction, which is within less than ten years.
Possible Penalties for Second Offense DUI
Stiffer penalties should be expected for second offenders, but the kind of sentence you get will depend on the presiding judge. In such cases, the judge is usually the one who determines the right punishment depending on the proof presented before the court and the defense a lawyer has filed in your favor. Again, the kind of attorney you are working with will determine by a great extent, the types of penalties you will face.
Some of the possible penalties you are likely to face, alongside the possibility of losing your driving privileges for a period of two years are:
- A fine that can range between $390 and $1,000
- A sentence for a period between 90 days and one year
- Probation for a period of between three and five years
- Getting enrolled in a DUI recovery program for eighteen months
- SCRAM monitoring for a period of between thirty days to one year, which sometimes can go behind one year
SCRAM Monitoring, also known as Secure Continuous Remote Ankle Monitoring in full, is a bracelet that a DUI offender is required to always wear for a period that the court decides. The bracelet is designed in such a way that it can easily and quickly monitor the alcohol levels in your bloodstream. The SCRAM CAM will automatically assess your system every half an hour for 30 days or more, depending on how long the judge wants to monitor the offender.
The CAM is an external monitoring system, which automatically receives the reading every time the offender is assessed. If any alcohol is detected in your system, the court will be notified. This kind of assessment is used on high-risk lawbreakers, to monitor them closely and since it is waterproof and tamperproof, the users are not able to interfere with the evaluations.
In the place of a SCRAM CAM, the court may decide to use a SCRAMx system, which works in a similar way as the former device, but to help with house arrest. Both these systems use similar technology as the BAC test devices.
SCRAM Monitoring in California is recommended for offenders who do not want to end up in jail especially for second DUI offenders. The monitoring can also be used in cases where the defendant is released from prison early, for reasons such as overcrowding.
What determines the length of time an offender will wear the monitoring system?
- The seriousness of the offense in question
- The total number of previous DUI cases in your record
- The nature of the offender’s alcohol/drug problem- how long you have had a problem and how bad it is.
Possible Defenses for Second Offense DUI
There is usually no DUI case that is straightforward; the outcome of the judgment will be determined by the evidence available and the defense you get. An experienced DUI attorney will look at the evidence presented to establish if there is a solid argument that he/she can file before the court. Some of the possible defenses the attorney can use include:
Lack of rational cause for alarm
What led the police officer to stop you? The court will want to know if there was a rational reason for worry for the police to stop you, before deciding the matter. If the suspicion the officer had was not consistent enough, he had no authority to stop you, and this means there will be no case against you. Stopping a driver without good reason is a great violation according to the constitution, and the officer may be seen to have broken the law. This kind of defense can be used against a case whereby you were stopped just because you were driving a car at night, even though you were driving okay. Also if the officer finds evidence that you were driving under influence, that evidence will not be relevant in the court because his reasons to stop you is not legally acceptable.
Lack of a credible reason to administer BAC
Again, a police officer needs enough reasons to conduct a BAC on a driver. If for instance the reason he stopped you was different and not related to DUI, he has no right to administer BAC and any proof gathered this way will not be appropriate in the court. To proceed with the BAC, the officer has to have solid facts even to suspect that you were driving under influence.
Wrong positive results
If the testing gadget in use was not adequately maintained or used, and the results came out positively, the evidence gathered will not be acceptable during the court proceedings. An experienced attorney will help point out possible errors in the gathering of information, which can help a lot in your case.
DUI Checkpoint is Non-Compliant
In California, there is a list of guidelines that officers manning DUI checkpoints must adhere to, as well as the DUI checkpoints themselves, to ensure that any evidence gathered in those checkpoints are relevant in the courts. If the regulations in place are not adhered to, or your attorney finds out that the DUI checkpoint was non-compliant, he can cause the case to be dismissed before trial.
No Miranda warning
If an offender’s Miranda Rights were not told to you before you were questioned, your defense attorney might take advantage of that to give the court system a harder time. The law states that anything you say before Miranda rights are granted to you is not permissible in court.
Find a DUI Attorney Near Me
Any DUI case is a severe matter in California, and one can face stiff penalties if found guilty of the offense. The second offense DUI will be even more serious, and so, a DUI suspect will need proper help and defense to have their penalties reduced. The good thing is that several defenses could help your case. If you are in Vista, CA or North County, call the Vista DUI Attorney today at 760-691-1540 and let us take over your defense.