It is unfortunate, but sometimes people get arrested for a DUI multiple times. While chances are you promised yourself you’d never make the same mistake after your first DUI, it is a simple reality of life that accidents happen. However, it also an unfortunate reality that repeat convictions for a DUI carry an elevated set of penalties from what you were facing during your first offense DUI. If you have been charged with a DUI within the past 10 years, it is important that you contact an attorney from Los Angeles DUI Attorney Law Firm immediately. Each subsequent DUI you are convicted of over the period of 10 years, increases the chances you will serve time in jail exponentially, and significantly increases the penalties you will face. Having competent counsel assisting you throughout the process will have a profound impact on the outcome of your case, often times resulting in dismissal of your case, or a reduction in charges or penalties. Further, if you have been accused of a second DUI in the span of 10 years, and the results of the tests the arresting officer performed on you yielded a BAC of 0.08%, you will face an automatic suspension of your license for two (2) years1.As a result of the immediate and severe consequences of being accused of a second DUI in a 10 year-time span, it is essential that you contact an attorney the moment you are arrested so they can begin building their case for the DMV hearing, to convince the DMV to set aside the automatic license suspension, and prepare your case for trial. This article will address several issues: (1) what the significance of being accused, or convicted, of a second offense DUI over a period of 10 years is, (2) how the process will proceed once you have been arrested on suspicion of driving under the influence for the second time in a period of 10 years, (3) what penalties you may be face if you are convicted of a second DUI over a 10 year period; and (4) why having an attorney representing you is beneficial. Throughout this introduction, we have mentioned that a second DUI within the 10 year time period carries significant consequences, it is important to discuss why that is true.
What is the Significance of Being Accused, or Convicted of a Second Offense DUI Over a Period of 10 Years?
The California Legislature has spent the last several years passing legislation aimed at punishing repeat violators of the California drunk driving laws. To accomplish this goal, the Legislature has made driving under the influence a “priorable” crime; the practical effect of this is that a person will face enhanced punishments with each additional “wet reckless” ,DUI, or out of state conviction that would have been a DUI if performed in California, that an individual receives over the period of ten (10) years. This 10 year period is commonly referred to as a “lookback” or “washout” period2. Additionally, if you are accused of a second DUI during the “washout” period, along with a recorded BAC of 0.08% or higher, it will trigger an automatic suspension of your license through the Department of Motor Vehicles3. The difference between a first, and second offense DMV hearing however is that your license is at risk of being suspended for 2 years, instead of 6 months.
1This is a significant increase from the automatic suspension of six (6) months for a first “simple” DUI charge.
2Prior to January 1, 2005, individuals were able to escape the repeat offender enhancements if they were charged and convicted of a second offense before they were convicted of the first offense. To combat this, the California Legislature passed California Vehicle Code §23217 and clarified that it was there opinion that this application of the law allowed repeat offenders to escape the intent of the Legislature when they enacted laws punishing repeat offenders.
3This process will always occur if you are arrested for a DUI with a BAC of 0.08% or more; specifically, if you are arrested on suspicion of violating California Vehicle Code §23152(b).
I Have Been Arrested on Suspicion of Driving Under the Influence for the Second Time in 10 Years, What Happens Next?
The process for you second DUI arrest during the “washout” period is much like the process involved in the arrest accompanying your first arrest on suspicion of driving a vehicle with a BAC of over 0.08%. The arresting officer will confiscate your license, provide you with a pink piece of paper4, and inform the DMV of the arrest on suspicion of driving a vehicle with a BAC of 0.08% or more. When the DMV receives notice of an arrest for driving under the influence, in connection with a BAC of 0.08%, the will automatically suspend your license for 2 years. You will have 10 days to contact the DMV and request a DMV hearing, or you can opt to not challenge the suspension of your license, and allow it to go into effect after your 30 day temporary license expires. If you intend to challenge your license suspension, it would be prudent to contact an attorney at Los Angeles DUI Law Firm immediately, so they can begin preparing your case for the DMV hearing5. After the hearing, the administrative judge will issue something referred to as a “finding of fact” along with a determination about whether or not the automatic suspension of your license should continue, or be vacated. There are two important things to note about this determination. First, regardless of the outcome at your DMV hearing, it is not final. If you are ultimately acquitted of driving under the influence, or the charges against you are dismissed, you will have another year to request that the DMV set aside the suspension6. Alternatively, if the administrative judge chooses to set aside your license suspension, it will be automatically suspended a second time if you are ultimately convicted of driving under the influence.
After the administrative judge at your DMV hearing has rendered their decision in connection with their finding of fact, the criminal case against you will proceed. It should be noted that because of the potential time of incarceration you face, you have a Constitutional right to a trial by a jury of your peers. You may be offered what is known as a “plea deal” prior to trial, which will allow you to plead guilty to a lesser charge in exchange for lenient sentencing among other benefits. If a plea deal is offered by the Prosecutor, should confer with your attorney to discuss the risks and benefits associated with accepting the plea deal, the strength of your case, and ostensibly the likelihood that the outcome of trial would be better than what the Prosecutor is offering. If you accept the plea deal, the case is over and it is just a matter of sentencing, which has usually been stipulated to by the Prosecutor as part of the plea bargain itself. In the event you choose to decline a plea bargain, or a plea bargain isn’t offer, the case will proceed to trial. At trial, the Prosecutor will have to prove to the jury beyond a reasonable doubt that:
You were operating a motor vehicle;
At the time you were operating a motor vehicle one of the following facts were true
Your blood alcohol content, or BAC, was 0.08%; or
You were impaired by an alcoholic beverage7; or
You were addicted to a drug8; or
You were under the influence of a drug; and
If the Prosecutor is able to prove every one of these elements beyond a reasonable doubt, the jury will return a verdict, which determines you to be guilty of driving under the influence. Once you are convicted of driving under the influence, you will move to the sentencing phase of the process. The judge has discretion in sentencing you, but the judge will also hear arguments as to what penalties should be impose; at this point having an attorney advocating for you can be the difference between jail time, and substantial fines. It is important to know what penalties you potentially face if you are convicted of a second offense DUI.
4This is called an Admin Per Se, and operates as your temporary license for 30 days.
5This is just a brief overview of the process, for a more detailed analysis please review our article titled “DMV Hearing.”
6You generally have a good chance of succeeding at a DMV hearing following an acquittal or dismissal of the charges against you.
7This provision allows the Prosecutor to argue that while you may not have been driving with a BAC of 0.08% or higher, you still shouldn’t have been driving because you were intoxicated nonetheless.
8It is important to be aware that the Prosecutor cannot succeed on this charge if the person is enrolled in a drug treatment program.
9You cannot be charged with a “wet reckless”; a “wet reckless” is a standard plea deal that Prosecutors offer in DUI cases. As such, the Courts treat it as a prior DUI for purpose of repeat offender enhancements. It should be noted that most employers who observe a “wet reckless” on your criminal background will also understand it to mean you were charged with driving under the influence.
I Have Been Convicted of a Second Offense DUI, What Penalties Can I Face?
If you have been convicted of a second offense DUI, the consequences are significantly harsher than your first offense; this does not mean your attorney can’t persuade the judge to impose lesser penalties though. The judge has wide latitude in determining what punishments to impose. The consequences of a conviction for a second offense DUI include:
Suspension of your license for a period of one (1) to two (2) years;
Ninety (90) days to one (1) year of incarceration;
Monetary sanctions ranging from $390 to $1,000;
Three (3) to five (5) years of probation; formal or informal; and
Mandatory participation in a DUI education program for a period of eighteen (18) months.
As mentioned above, your attorney, as well as the Prosecutor, has the ability to persuade the judge regarding which penalties should be imposed, and where in the permissible range those penalties should fall. Additionally, the list above is not an exhaustive list of the punishments the judge can impose; your attorney can also advocate the implementation of one of those alternative punishments. As you can see being accused of a second DUI during the washout period can be a daunting experience, the attorneys at Los Angeles DUI Attorney Law Firm have extensive experience representing clients in DUI cases, including individuals accused of being repeat offenders.
How Can an Attorney Help Me if I am Accused of a Second Offense DUI?
As mentioned above, having a competent attorney representing you against charges of second offense DUI has several advantages; your attorney can advocate on your behalf at the DMV hearing, they can present defenses at your criminal trial in an effort to have the case against you dismissed (which will get you your license back if the DMV hearing went poorly); and they can advocate for lesser penalties. Without getting into the nuts and bolts of the various defenses your attorney can present, here is a small sample of defenses that have been successful: (1) the arresting officer didn’t have the requisite suspicion to support the initial traffic stop, (2) the test that was conducted on you to determine your BAC was fundamentally flawed as a result of external factors, (3) the test that was conducted on you to determine your BAC was fundamentally flawed because the device itself was defective; and (4) the officer who arrested you did not have sufficient cause to arrest you for driving under the influence. The attorneys at Los Angeles DUI Attorney Law Firm have the benefit of direct tutelage from Vincent Ross, an attorney with nearly three decades of experience representing clients in criminal proceedings, and obtaining impressive results. Our attorneys take the lessons Mr. Ross has infused in them daily regarding the art of criminal defense, and put it to practice on a regular basis. An investment in an attorney from Los Angeles DUD Attorney Law Firm is an investment in your future.
If you have been accused of a second offense DUI, contact an attorney at Los Angeles DUI Attorney Law Firm as soon as possible. Call 424-285-5400 for a FREE consultation about your case with a licensed attorney.