Second DUI in San Diego
After the first arrest, you probably swore that you would never make the same mistake again. Unfortunately however, people sometimes do experience multiple DUI arrests in their lives. What’s also unfortunate, is that repeat DUI convictions tend to carry enhanced penalties. If you have been charged with more that one DUI within a 10-year span, it is extremely important that you consult with an attorney as soon as possible. With each conviction your chances of serving considerable jail time increases exponentially. Similarly, fines and other penalties will also increase. Finding an experienced and dedicated attorney can have a drastic impact on the results of your case. Many times, defenses will exist that can result in reduced, or even dismissed, penalties.
If the test results of your second DUI arrest yielded a BAC of .08% or greater, you will face an automatic driver’s license suspension of two years. Such a suspension can profoundly affect your personal life and career. If you find yourself in this position, it is highly recommended that you contact an attorney immediately. The sooner your attorney can begin building your defense, the more likely it will be that your charges are reduced. Your attorney can also begin working to set aside the automatic license suspension that could result at your DMV Hearing.
This article will discuss the following topics relevant to a Second DUI offense:
- The Significance of Being Charged with a Second DUI Offense.
- The Process of a Second DUI Offense.
- Penalties for a Second DUI Offense.
- The Benefits of Hiring an Attorney for a Second DUI Offense.
The Significance of Being Charged with a Second DUI Offense
Over the past several years, the California Legislature has passed a number of laws designed to punish repeat DUI offenders. In essence, the Legislature has made Driving Under the Influence a “Priorable” crime. This means that defendants can receive enhanced punishments if they have prior convictions for related crimes. Keep in mind, that for DUI offenses, there is a 10 year “washout period”. This means prior offenses are only taken into account if they occurred within the last 10 years. For example, a 1999 conviction should not effect the sentencing of defendant arrested for DUI in 2017. As noted above, the second DUI within a 10-year period triggers an automatic license suspension of up to 2 years from the DMV. This is a significant increase from the 6-month suspension commonly associated with a first time offense.
The Process of a Second DUI Offense
The process of your second DUI offense will actually play out quite similar to the process of your first offense. Your driver’s license will be confiscated at the time of your arrest and you will be issued a pink temporary license. If you were arrested with a BAC of .08% or higher, upon receiving notice the DMV will automatically suspend your license for 2 years. Just as in your first offense, you will have 10 days (including weekends) to request a Hearing with the DMV. If you do not request a Hearing, the 2-year suspension will begin immediately after your temporary license expires. It is highly recommended that you do request a Hearing, and do not allow the DMV to automatically suspend your license.
If you do plan on requesting a Hearing to challenge your license suspension, we advise you to contact our office immediately for a FREE consultation.
At the end of the DMV Hearing, the administrative judge will issue what is known as the “Finding of Fact”, as well as a decision regarding the suspension of your driver’s license. It is important to understand two things about the outcome of the DUI Hearing. First, the outcome if the Hearing is not final. If the administrative judge suspends your license, but you’re are later acquitted of the criminal charges against you, you can seek to have the suspension set aside. On the other hand, if your license is not suspended at the Hearing, but you are later convicted of a DUI, your license will ultimately be suspended. Even so, the DMV Hearing will provide your attorney with a great deal of information, and will give an idea of how strong the evidence against you is.
Once the DMV Hearing comes to an end, the criminal proceeding will begin. At some time prior to trial, you may be offered what is know as a “plea bargain”. A plea bargain is essentially a deal you negotiate with the Prosecutor, in which you agree to plead guilty to some charge, in exchange for a lesser sentence than you might receive at trial. Our attorneys will be able to advise you through the plea bargaining process, and help you understand when accepting a plead deal is in your best interest. If you end up accepting a plea deal, the case will come to a conclusion and you will serve the agreed upon sentence. If you refuse to accept the plea deal, or if one is never offered, the case will proceed to trial. If your case ends up in trial, the prosecution will have to prove, beyond a reasonable doubt, that you were driving under the influence. As you may recall from your first case, the elements of a DUI are as follows:
- You were driving a vehicle;
- While driving the vehicle:
- You were under the influence of alcohol;
- You were under the influence of a drug;
- Your blood alcohol content (BAC) was .08% or higher; or
- You were addicted to a drug.
Additionally, in order to show that this is your second offense, the prosecution will have to prove that you were convicted of a prior DUI incident within the last 10 years. This additional DUI incident could include a “wet reckless”, simple DUI, or aggravated DUI.
If each of these elements is proven beyond a reasonable doubt, a guilty verdict will be returned, and the guilt phase of the trial will come to an end.
Next, the sentencing phase will begin. During sentencing, the judge will have a great deal of discretion in determining your penalties. At this time, all aggravating, and mitigating, factors will be taken into account. Having an experienced attorney on your side can have a huge impact on the penalty you ultimately receive. At the San Diego DUI Attorney, we will aggressively defend your rights, and make sure you do not receive an unreasonable sentence.
Penalties for a Second Offense DUI
Unfortunately, the penalties for a Second Offense DUI can be significantly harsher than for for a first offense. Even so, the judge will have wide latitude in determining the appropriate sentence, and your attorney will be able to make a number of arguments on your behalf. The typical penalties for a Second Offense DUI are as follows:
- Suspension of your driver’s license for a period of up to two (2) years;
- Between ninety (90) days and one (1) year of incarceration.
- Between $390 and $1,000 in fines;
- Between three (3) and five (5) years of probation; and
- Mandatory completion of an 18 month DUI education program.
While these are typical penalties, remember that your sentence can vary depending in the facts of your case. As you can tell from the list above, a Second Offense DUI charge is not a situation to be taken lightly. Our attorneys have decades of experience defending against Second Offense DUI charges, and we will ensure that your rights are protected.
The Benefits of Hiring an Attorney for a Second Offense DUI
As touched on above, having an experienced DUI attorney represent you during your Second Offense DUI case, will lead to several advantages. Your attorney will assist you with the the DMV Hearing process to prevent your driver’s license from being automatically suspended, and present a number of defenses during your criminal trial in order to get your charges reduced or dismissed. Some of theses defenses include:
Lack of reasonable suspicion to support the initial traffic stop
The police are not permitted to simply stop your car as they please. The US Constitution requires that they have some reason to believe you are committing an offense before pulling you over. As you may be aware, there are many legitimate reasons your car can be stopped and they do not necessarily have to relate to driving under the influence. You can initially be stopped for any traffic violation including: speeding, broken tail light, or expired registration. Notice that these do not suggest you are driving impaired. However, in some cases, the police might stop a driver they suspect might be under the influence based solely on the time of night or location. Such a stop should not be valid, and any evidence resulting from the stop should not be admissible.
Lack of probable cause to support the DUI test
Even if your vehicle was stopped for a valid reason, the police still need probable cause to issue a DUI test. Probable cause requires a showing of “articulable facts” that suggest you might be under the influence. Common examples include bloodshot eyes, slurred speech, or the smell of alcohol on the breath. Like with the initial traffic stop, if a DUI test is improperly issued, the resulting evidence should be suppressed. Many defendants assume that because they blew a .08%, they have no defense. However, remember that the law requires that the police adhere to strict requirements. If they obtain evidence in violation of these laws, they will not be able to use the evidence against you.
Failure to be read Miranda Rights
Most people are somewhat familiar with Miranda Rights because of television and movies. Keep in mind, that in most DUI incidents Miranda Rights will not and do not need to be read. Even so, there are instances when they must be read. Your Miranda Rights are triggered when you are in police custody and under interrogation. In a DUI case, this means they are triggered if you are interrogated after being arrested. If you were questioned after your arrest and were not read Miranda Rights, your responses should not be admissible.
False Positive results in the breath or blood test
Sometimes, the results of a breath or blood test will not be accurate. A number of factors, such as diet, health condition, or even faulty equipment, could lead to a False Positive. There are also strict requirements regarding how samples are collected and stored, as well as how testing equipment is maintained. Our attorneys have years of experience dealing with DUI cases, and know exactly what to look for in determining whether the results of your test might be inaccurate.
Illegal DUI Checkpoint
California requires that DUI Checkpoints comply with a number of regulations. If you were stopped at a DUI Checkpoint, it may not have been set up legally. They must be set up safely and reasonably and all operational decisions must be made by Supervising Officers. Further, the criteria used for stopping vehicles must be predetermined and neutral.
The attorneys at the San Diego DUI Attorney have had success arguing each of these defenses in DUI cases. Our Chief Trial Attorney, Vincent Ross, has nearly three decades of experience representing DUI defendants and producing impressive results. An investment in the San Diego DUI Attorney is an investment in your future.
If you have been charged with a Second Offense DUI, do not take the situation lightly. Make sure you have an attorney who has the resources necessary to give your case the attention it deserves and who understands the impact this situation could have on your future.
Our experienced attorneys may be able to help you avoid the potential penalties following a second DUI arrest. We are proud to serve clients in San Diego, Vista, El Cajon, Oceanside, Chula Vista and all other San Diego County communities.
Contact our office today at 619-535-7150 for a FREE DUI consultation.