You swore this wasn't going to happen again, and you meant it. Then it happens. You are arrested for your second DUI charge.
You are not alone. About 50% of people who get a first DUI end up getting a second one. And while many second time offenders simply made an error in judgement, the judicial system tends to take a much more critical viewpoint and assumes that a second DUI equals a drinking problem. This can lead to much stricter penalties.
At this juncture, you need someone on your side. Having a skilled attorney who is committed to what is in your best interest can reduce, and sometimes even eliminate, some of those penalties.
One Mistake Can Result in Two Offenses
California law defines a DUI as (a) driving while under the influence of alcohol or drugs or (b) driving with a BAC, blood alcohol concentration, that registers at 0.08% or higher.
Offense (a) simply defines your inability to operate a motor vehicle safely, regardless of your BAC results, while offense (b) is based strictly on how much alcohol is in your bloodstream at the time you are detained. While these stringent laws are in place to protect everyone's safety, they can be quite problematic for the defendant. You will need legal representation to ensure the best possible outcome.
This takes us back to DUI definition (a). Any drugs, including those prescribed by a doctor or even those purchased over the counter, (OTC drugs) have the potential to impair you. Therefore, driving while having any kind of drugs in your system can lead to a DUI charge.
There are many types of medications that can cause side effects that can impair your ability to drive safely. Examples of these include:
- Cold or Allergy Medications
- Pain Medications
- Anti-Anxiety Medications
All medications have the potential for unsafe side effects, such as dizziness or drowsiness. Always refrain from driving when taking a new medication until you know how it affects you. Don't ever assume that these types of drugs will not impair your driving or cannot lead you to a second DUI charge.
The Initial Proceedings
If you are arrested for a second DUI, much of what took place during your first offense will repeat itself. You can expect to have to turn over your driver's license and receive a temporary license that will only be in effect for ten days, presumably enough time for you to request a hearing with the DMV (Department of Motor Vehicles).
Please keep in mind that these are not business days. Weekends are counted during this time period. If you do not make this request within the ten-day period, your driver's license will be automatically suspended for two years.
It is vitally important to contact an attorney as soon as you make your hearing request. Your DMV hearing isn't just about presenting your side of the story to the judge. It is also an opportunity for your attorney to learn the details of your arrest and gather information that will help him or her determine just how much evidence is against you.
Remember, if your license does get suspended at the hearing, but your charges are subsequently dropped, your attorney can assist you in getting your license back.
A "Priorable" Crime
There are many more laws in place in California to punish DUI offenders and deter DUI activity now than ever before. This includes taking a closer look at your prior convictions. If you have a prior DUI or DUI-related crime on your record, those convictions will be considered when determining your sentence for your second DUI.
If you have a second DUI conviction in a ten year period, you automatically lose your driving privileges for up to two years, which is a big jump from your first DUI license suspension of six months. The same penalty applies if your BAC is 0.08% or higher.
Lengthy suspensions can impact your life in many serious ways, such as getting to your job and taking care of the needs of your family.
Deal or No Deal?
At some point before the criminal proceedings begin, you may be offered something called a plea bargain. Prosecutors like to offer plea bargains, because they are still getting a guilty verdict. They are essentially offering you a deal where you can plead guilty to a lessor crime and accept a reduced sentence, which could appear quite attractive to you at the time.
However, this is another important reason why you need a reputable attorney by your side. At this point, your attorney will have seen the evidence against you, and can advise you if accepting a plea bargain is really in your best interest or not. If the prosecutor was sure of a conviction, chances are that he or she would not have put a plea bargain offer on the table. This deal is something that only an experienced attorney can accurately access and then discern whether or not you should take it.
If you end up accepting the prosecutor's offer, you will begin serving your sentence immediately. Case closed. If you go to trial, however, it is the prosecutor's responsibility to prove beyond a reasonable doubt that you were indeed guilty of operating a motor vehicle while impaired. This requires him or her to show that you were the driver of the vehicle, and you were impaired in one of the following ways:
- by alcohol
- by drugs
- tested at 0.08% for alcohol or drugs in your system
- because you are addicted to alcohol or drugs
The prosecutor will also have to prove that this charge is your second DUI by producing evidence of a prior conviction in the past ten years.
Despite the fact that there are stiffer penalties for a second DUI, the judge has quite a bit of latitude in these cases, based not only on the evidence that was presented, but also on the defense your attorney presents to the court. Having a knowledgeable attorney who is willing to present an aggressive defense is exceedingly important at this point in the proceedings. Take a look at these facts:
In addition to losing your driver's license for up to two years, you can also face the following penalties:
- Fines ranging from $390 to $1,000
- Jail time from 90 days to one year
- Three to five years probation
- Enrollment in an 18-month DUI rehabilitation program
- SCRAM monitoring from 30 days to more than one year
What is a Scram Cam?
SCRAM CAM, Secure Continuous Remote Ankle Monitoring, is an ankle bracelet that you wear continuously for a court-ordered period of time. It is designed to pick up any alcohol in your system, and it performs automatic assessments every 30 minutes.
The results are then automatically sent to a regional monitoring system, and if the presence of any alcohol is detected, the court is notified. This secure system is both tamper proof and waterproof and can be adjusted to monitor high-risk offenders more closely.
There is also a SCRAMx system that operates the same way with the addition of traditional ankle bracelet technology to support house arrest through a radio frequency system.
A SCRAM CAM collects its data in a similar manner to a BAC test, by detecting the amount of alcohol excreted from your body other than through your urine. While the BAC detects it through your breath, the SCRAM CAM relies on detecting it from your sweat.
California courts use this probation tool as a condition for you to stay out of jail, especially in cases where the you have prior DUI convictions. It is also used in DUI cases where an offender is released early from jail due to overcrowding and for juvenile DUI offenders as well.
The judge will take the following factors into consideration before determining how long you may have to wear this monitoring system:
- How serious your current DUI is
- The number of prior DUI's you have
- If it is determined that you have an ongoing problem with alcohol and how extensive that problem is.
An attorney who specializes in DUI law can look at the particulars of your specific case and determine if you have a viable defense that can be presented at trial. Some of those defenses include:
- No Reasonable Suspicion - A police officer is not authorized to pull you over unless he or she has a reasonable cause for concern. It is a constitutional violation to do so without a reasonable suspicion that you are breaking a law. For example, if you are driving erratically, a police officer could be concerned that you are driving under the influence. It's also just as likely that they could suspect that you are ill or you are losing control of your vehicle due to a mechanical failure. Regardless, you are driving in a manner that puts you, your passengers, and everyone else on the road at risk, which is illegal, and gives a police officer the right and the obligation to stop you. However, if an officer stops you simply because it's late at night and you are in rough neighborhood, that stop is invalid, because you are not breaking any laws, and any evidence the officer may collect should not be inadmissible in court.
- No Probable Cause - Let's say you missed a stop sign or one of your tail lights is out. The police officer now has the legal right to pull you over for those offenses. However, the officer is not permitted to administer a BAC without probable cause, meaning they need some other observable facts that indicate you may be driving under the influence, such as they observe you having a hard time following the conversation, there is an open container clearly visible in your vehicle, or they can smell alcohol on your breath. If a DUI test is administered without probable cause, the evidenced gathered from that testing is not admissible in court.
- No Miranda Rights - The laws regarding your Miranda rights are not as cut and dry as you may think or how they are portrayed on crime shows. In fact, when it comes to DUI charges, in many cases, your Miranda rights are not required to be read to you. It is only after you are in police custody and being interrogated. In other words, after you are arrested for a DUI, but before you are questioned is the time a police officer is required to read you your Miranda rights. If you are questioned without being read your rights, your answers should not be admissible in court.
- False Positive Test Results - There are many things that can contribute to a false positive test result, such as prescription medication or equipment error. Perhaps the testing device had not been stored or maintained correctly. Or the officer administering the test could have made an error when collecting or storing the sample taken. It is extremely important that you have an attorney who knows how to recognize these types of errors, which could lead to a false positive result that is not admissible in court.
- Non-Compliant DUI Checkpoint - The State of California has a list of regulations that DUI checkpoints and the police officers who staff them must follow to the letter of the law. Some examples of these regulations include having supervisory police officers on site ensuring safety and operational compliance. All drivers who are stopped must be done so on the basis of predetermined criteria that is not prejudicial in any way towards the driver or the vehicle itself.
- Prescription Drug Defenses - If a police officer believes that you appear to be under the influence of drugs that are impairing your ability to drive, he or she may arrest you, however, they will need additional information to prove that you were impaired at the time of your arrest. Their opinion is not a legal fact. If you are given a test that reveals the presence of a prescription drug in your blood or urine, it still does not constitute a DUI, because most medications have a half-life that remains in your system for several days or even weeks after ingesting. Based on these factors, a DUI attorney can challenge the validity of a positive prescription test.
Contacting a Second DUI Offense Attorney Near Me
A second DUI offense is a serious situation, but you are not without options here in the San Diego area. Take charge of your defense, and give San Diego DUI Lawyer a call at 619-535-7150 to consult with one of our experienced trial attorneys who have been successfully representing DUI defendants for decades.