A DUI conviction can have serious consequences, including fines, license suspension, and jail time. Second DUI offenses carry more severe penalties than a first DUI offense. You risk a possible license suspension, impacting your ability to move around. Your arrest and conviction for the second DUI offense will also become a prior on your record. Should you be arrested for a third DUI violation, your second DUI conviction will inform the court's decision to impose significantly higher penalties.
An experienced DUI defense attorney can help you navigate the complex legal system and develop a defense strategy tailored to your case's specific facts and circumstances. They can also help you understand the potential consequences of a conviction and work to minimize the impact of those consequences on your life. Reach out to the Michele Ferroni Pasadena Criminal Attorney Law Firm should you face second DUI charges in PAsadena.
Second DUI Offense Under California Law
A second DUI offense is the second arrest for driving under the influence of alcohol or drugs (DUI) for the second time. A DUI offense occurs when a person operates a vehicle while under the influence of drugs or alcohol to the extent that their mental faculties are impaired. The legal justice system relies on a driver’s blood alcohol content (BAC) to assess a driver’s impairment level. The legal BAC limit per Vehicle Code 23152 is:
- 0.08% for individuals over 21 years.
- 0.01% if you are below 21 years old.
- 0.01% if you are on DUI probation, regardless of your age.
- 0.04% if you are a commercial driver — You can only drive a commercial vehicle if you hold a commercial driver’s license.
- 0.04% if you are driving a passenger-for-hire vehicle.
A second DUI offense occurs when your subsequent DUI conviction occurs within ten (10) years of your first DUI conviction.
Note: Whereas there are set limits for the various circumstances, Vehicle Code 23152(a) makes it illegal to drive a vehicle under the influence of alcohol, regardless of the legal limit.
Penalties for a Second DUI Conviction
Second, DUI penalties vary depending on the circumstances of your case. However, the following are the likely penalties:
- Summary probation lasting from 3 to 5 years.
- Mandatory jail time ranging from 96 hours to up to one year — 96 hours is a mandatory minimum. If the judge requires you to serve the 96 hours, you will serve the 96-hour sentence on two consecutive weekends. Los Angeles prosecutors push for a 90-day minimum.
- Fines of $390 to $1,000 and additional penalty assessments of approximately $1,000.
- Completion of court-mandated alcohol/drugs education program offered by a court-approved DUI school — The program runs for 18 to 30 months.
- The installation of an IID (ignition interlock device) for one year.
- A possible driver's license suspension for two years — The DMV (Department of Motor Vehicles) can convert the license to a restricted license after twelve months. Alternatively, you could receive an IID-restricted driver’s license after 90 days if you install an IID and submit to a chemical test.
The terms of the summary probation include the following:
- Regular check-ins with a probation officer.
- Refraining from committing any additional crimes.
- Submitting to random drug and alcohol tests, and
- Attending court-ordered DUI education programs or treatment, for example, Narcotics Anonymous and Alcoholics Anonymous.
- Participation in MADD (Mothers Against Drunk Driving).
- Paying restitution fees in full to the victims in case your drunk driving led to a collision.
Additionally, you must avoid further arrests or convictions during probation. An arrest will result in additional penalties and the revocation of probation. Failure to comply with the terms of probation could also result in the imposition of further penalties or the revocation of probation. A judge could also impose the jail sentences you avoided through probation.
Losing Your Driving Privileges After a Conviction
First, it is worth noting that the DMV's administrative hearing differs from a criminal trial. The DMV hearing is an administrative process determining whether your driver's license will be suspended or revoked based on your arrest for a DUI. On the other hand, a criminal trial is a legal process determining whether you are guilty of a crime and what penalties you will face if convicted.
The DMV will automatically suspend your driver's license if you are arrested for a DUI. You can request a hearing within ten days of your arrest. The DMV hearing aims to determine whether there is enough evidence to support the suspension of your license.
Note: The DMV hearing is a separate process from the criminal trial. The outcome of one does not necessarily dictate the result of the other.
If convicted of a second DUI, you will face a mandatory driver's license suspension. The length of the suspension depends on several factors. These include the specifics of your case and any prior DUI convictions.
If you commit a second DUI offense within ten years of the first offense, your license will be suspended for at least two years. However, you could be eligible for a restricted driver's license after 12 months of suspension if you install an ignition interlock device (IID) in your vehicle. This IID-restricted license allows you to drive only if you have an IID installed. The device measures your blood alcohol content before allowing you to start the car.
It is worth noting that a license suspension is a mandatory penalty for a DUI conviction. Even a successful defense will not prevent the license suspension.
Types of License Suspension
There are two types of suspensions:
- A court-triggered suspension and
- An Administrative Per Se (APS) suspension.
A court-triggered suspension is imposed due to a DUI conviction in court. The suspension will be two years if you have a prior DUI or wet reckless conviction within ten years. However, the suspension period will be one year if you have only one prior DUI conviction within ten years.
On the other hand, an APS suspension is triggered by failing to request a DMV hearing within ten days of your arrest or losing the hearing. If you have one prior DUI conviction within ten years, the suspension will be one year. After 90 days, you could be eligible for a restricted license if you install an ignition interlock device (IID) in your vehicle.
However, the penalties are much harsher if you refuse to submit to a chemical test. You will face a two-year license revocation if you face a second DUI offense and refuse to submit to a chemical test. You will not be eligible for a restricted license during any part of the suspension period.
Further, you cannot avoid the 12-month IID requirement. So it is recommended to install it as soon as possible to obtain the restricted license on the 91st day of your suspension. Additionally, your DMV record should show that a court-triggered driver’s license suspension has already begun before you can get a restricted driver’s license. However, the suspension triggered by the court conviction does not necessarily have to run 90 days as long as the APS suspension has already run 90 days.
Can a Second DUI Conviction Result in a Permanent Record
In most cases, a conviction for a second DUI offense will result in a permanent criminal record. However, it is possible to have a DUI conviction expunged from your criminal record under certain circumstances.
You could be eligible to have your DUI conviction expunged if you:
- Completed probation.
- Paid all fines and restitution and
- Completed any required DUI classes.
It is worth noting that even if your DUI is expunged, the conviction will still be visible on certain background checks. This includes those performed by law enforcement agencies or government employers.
Aggravating Factors in a Second DUI Case that Could Increase the Penalties
There are certain factors that, if present in your case, could result in additional penalties. These factors include the following:
- High blood alcohol content (BAC) at the time of the arrest — If your BAC was significantly above the legal limit of 0.08%, for example, 0.15%, it could be considered an aggravating factor. It can result in a longer jail sentence, higher fines, and longer license suspension.
- Reckless driving or other traffic offenses — Committing other traffic violations before your arrest for the DUI will result in increased penalties.
- Causing an accident or injury — If you caused an accident or injured someone while driving under the influence, you are a candidate for increased penalties.
- Refusing a chemical test — Refusing to submit to a chemical test when pulled over for a suspected DUI violates California's implied consent law. This law states that by obtaining a driver's license and driving on California roads, you have already consented to submit a chemical test if you are arrested on suspicion of DUI. By refusing to submit to a chemical test, you are violating this implied consent law.
If you refuse to take a chemical test, the Department of Motor Vehicles (DMV) will automatically suspend your license. The suspension remains in place for one year for a first-time refusal and two years for a second or subsequent refusal within ten years of a prior DUI conviction.
Consequences if You Were on Probation for a First DUI at the Time of Arrest for the Second DUI Violation
If you were arrested for a second DUI offense while still on probation for your first DUI, the penalties and consequences could be more severe. This is because you could face additional penalties for violating your probation, including:
- An extension of your probation period.
- Revocation of your probation.
- Increased fines.
- Longer jail time, and
- Other court-ordered conditions.
Additionally, a second DUI conviction while still on probation for a prior DUI can negatively impact your future opportunities, including employment and housing.
Legal Defenses You Can Assert in a Second DUI Case
With the ideal legal representation, you can assert a winning defense argument. The choice of the appropriate defense strategy depends on the facts of the case. Work with your defense attorney to choose the ideal defense.
Here is a look at some of the common defenses:
- Challenging the Legality of the Stop
You can challenge the legality of the stop as a defense. You can argue that the police officer did not have a valid reason to stop you in the first place. If the DUI stop was unlawful, any evidence obtained, including field sobriety tests or breathalyzer results, could be suppressed and not admissible in court.
You challenge the legality of the stop by showing that the police officer did not have reasonable suspicion or probable cause to pull the defendant over. This is achievable by reviewing the officer's report, dashcam or bodycam footage, witness statements, or other evidence related to the stop.
Reasonable suspicion is a lower standard of justification. It allows police officers to briefly detain someone if they have a reasonable belief, based on specific and articulable facts, that the person has committed, is committing, or is about to commit a crime. This suspicion must be based on more than a hunch or general suspicion.
For example, if a police officer observes you swerving between lanes or running a red light, they could have reasonable suspicion to stop you and investigate whether the driver is impaired.
Probable cause is a higher standard of justification that allows police officers to arrest or search someone if they reasonably believe the person has committed a crime. The officer's belief must be based on facts and circumstances that would lead a reasonable person to believe the person has committed a crime.
For example, suppose a police officer smells alcohol on a driver's breath and notices that the driver has bloodshot eyes, slurred speech, and is unsteady on their feet. In that case, they could have probable cause to arrest the driver for driving under the influence.
If you prove that the stop was illegal, it could lead to the dismissal of the case or a reduction in charges.
- Challenging the Field Sobriety Tests (FSTs)
Officers rely on field sobriety tests to determine whether a driver is intoxicated. They later conduct breath and chemical tests to confirm their suspicions. Prosecutors then submit the sobriety test as evidence.
Field sobriety tests are standardized tests that law enforcement officers use to evaluate a driver's level of intoxication or impairment. The three standardized sobriety tests police officers use are:
- Horizontal Gaze Nystagmus (HGN) test — This test involves the officer asking the driver to follow a moving object, like a pen or flashlight, with their eyes while keeping their head still. The officer is looking for involuntary jerking of the eyes, which can indicate impairment. The HGN test is not always accurate and can be challenged in court, especially if the officer did not follow proper procedures or if the person being tested has a medical condition affecting their eye movements.
- The one-leg stand test — In this test, the person is instructed to stand on one leg while raising the other and counting out loud for a certain amount of time. The officer will observe the person's balance, coordination, and ability to follow instructions. Like other field sobriety tests, the one-leg stand test is unreliable and can be affected by various factors, including age, weight, physical limitations, and environmental conditions.
- The walk-and-turn test — During the test, you will be asked to take nine heel-to-toe steps in a straight line, turn on one foot, and then take nine heel-to-toe steps back. The officer will look for specific indicators of impairment, including an inability to keep balance, taking the wrong number of steps, or failing to follow instructions. However, it is worth noting that factors including nerves, fatigue, and physical conditions also impact an individual's ability to perform this test.
There are several ways to challenge the field sobriety tests, including:
- Lack of proper training — Law enforcement officers must be trained to administer field sobriety tests. If the officer who administered the tests was inadequately trained, there is a possibility that the results of the tests are unreliable.
- Physical or medical conditions — Certain physical or medical conditions can affect a driver's ability to perform field sobriety tests. These challenges include inner ear problems or back injuries. If you have these conditions, the tests were not a valid measure of intoxication or impairment.
- Environmental factors — Poor lighting, uneven surfaces, or distractions can affect a driver's ability to perform field sobriety tests. If these factors were present, you could challenge the DUI charge.
- Improper administration — You can challenge the prosecution’s case if the officer administering the field sobriety tests did not follow the proper procedures.
The prosecution's case could be weakened if the field sobriety tests are successfully challenged. Therefore, the charges against you could be reduced or dismissed.
- Challenging the BAC (Blood Alcohol Concentration) Results
Several factors affect an individual’s blood alcohol concentration. Notably:
- Improper administration of the tests.
- Rising blood alcohol concentration.
- Medical conditions.
Let us look at each factor in detail.
Improper Administration of the Tests
Title 17 sets forth the rules and procedures for administering chemical tests, including blood alcohol concentration (BAC) tests, in DUI cases. The regulation provides specific guidelines for how the tests must be conducted, the qualifications of the individuals who administer them, and the maintenance and calibration of the testing equipment.
In a DUI case, the results of a BAC test are often critical evidence against the defendant. However, if the testing procedures or equipment do not comply with Title 17, it is possible to challenge the validity of the test results.
For example, if the testing equipment was not properly calibrated or maintained, or if the person administering the test was not properly trained or certified, the test results could be called into question. Additionally, if the testing procedures did not comply with Title 17, the test results could be deemed inadmissible in court.
Rising Blood Alcohol Concentration
Rising blood alcohol concentration (BAC) occurs when a person's BAC increases after they have stopped drinking. It could exceed the peak level they would have reached while drinking. This happens because alcohol takes time to be fully absorbed into the bloodstream from the stomach and small intestine. Additionally, it takes time to be metabolized and eliminated from the body.
As a result, if police officers stop on suspicion of drunk driving and test your BAC several hours after you stopped drinking, your BAC could still rise and be higher than when you were driving. This can create challenges for law enforcement and prosecution in determining a person's BAC at the time of driving. However, this is a critical element for your defense.
Medical conditions can be relevant to your defense. Certain medical conditions can mimic the signs and symptoms of intoxication, thus resulting in a false-positive result on field sobriety tests or a breathalyzer test.
For example, conditions like acid reflux, diabetes, and certain neurological disorders can affect a person's balance, coordination, and speech. All these could lead an officer to mistake these signs for intoxication.
Additionally, some medical conditions affect the accuracy of a blood alcohol concentration (BAC) test. For example, a person with gastroesophageal reflux disease (GERD) could have residual alcohol in their mouth due to regurgitation. This can cause a high BAC reading. Similarly, a person with a high fever or who has been using certain medications could have an elevated BAC reading due to the presence of other substances in their bloodstream.
If you have a medical condition that could have affected your ability to perform field sobriety tests or that could have impacted the accuracy of a BAC test, it is worth discussing with your DUI defense attorney as a possible defense strategy.
Contact a Pasadena DUI Defense Attorney Near Me
The potential consequences of a conviction for a second DUI offense make it necessary to fight the charges aggressively. You need the assistance of an experienced DUI defense attorney with a proven track record of winning DUI cases. Our PAsadena attorneys are ready to take on your case. Contact the Michele Ferroni Pasadena Criminal Attorney Law Firm today at 626-628-0564 and let us help you fight the second DUI charge.