SECOND DUI - SAN DIEGO DUI ATTORNEY GROUP
No one plans on having a second DUI but circumstances may arise where you are wrongfully arrested or your breath or blood test regarding your BAC level is flawed. In any case, if this is your second DUI in the past 10 years, you may be sentenced to multiple weekends in jail or more and face other restrictions and penalties that were not included following your first DUI conviction.
Second DUI convictions within 10 years are found under CVC 23540(a) and 23542:
“If a person is convicted of a violation of Section 23152 and the offense occurred within 10 years of a separate violation of Section 23103 as specified in Section 23103.5, 23152, or 23153, that resulted in a conviction, that person shall be punished by imprisonment in the county jail for not less than 90 days nor more than one year and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000). The person’s privilege to operate a motor vehicle shall be suspended by the department pursuant to paragraph (3) of subdivision (a) of Section 13352…”
- “(a) (1) If the court grants probation to a person punished under Section 23540, in addition to the provisions of Section 23600 and any other terms and conditions imposed by the court, the court shall impose as conditions of probation that the person be confined in county jail and fined under either of the following:
- (A) For at least 10 days, but not more than one year, and pay a fine of at least three hundred ninety dollars ($390), but not more than one thousand dollars ($1,000).
- (B) For at least 96 hours, but not more than one year, and pay a fine of at least three hundred ninety dollars ($390), but not more than one thousand dollars ($1,000). A sentence of 96 hours of confinement shall be served in two increments consisting of a continuous 48 hours each. The two 48-hour increments may be served nonconsecutively.”
Your Rights if Stopped for DUI
Most drivers stopped for DUI know they have certain rights and obligations. For instance, you do have to produce your license, registration and insurance information to the officer. Many do know that they have a right to not incriminate themselves but what does that mean?
If an officer stops you and the officer suspects you of drinking and driving, you have the following rights:
- 1. You do not have to answer any questions the officer asks, including if you have been drinking.
- 2. You are not obligated to perform any field sobriety tests If the officer asks you
- 3. You have no obligation to blow into the PAS or portable, handheld breath testing device
- 4. You do have to provide a sample of your breath or blood for BAC testing. If the officer lacked probable cause, your attorney can present this at your APS hearing or trial
Your rights are restricted if you are still on probation for your first DUI or if you are under 21. If so, you do have to submit to performing any FST tests that the officer asks you to do as well as blow into the PAS. Your refusal to do so will be a violation of your probation.
Cameras on police cars are now more common and may provide a record of your calm and sober conduct that can be a factor in exonerating you of any DUI charges. Your San Diego DUI Attorney Group lawyer can discuss subpoena the video and review it.
The APS Hearing
Your right to a hearing on the suspension of your license must be requested within 10 days of your receipt of your 30-day temporary license. It is a trial before an administrative officer at the DMV where your San Diego DUI Attorney Group lawyer can cross-examine the officer and raise defenses to your BAC testing or circumstances of your arrest. The issues concern:
- Whether the officer had probable cause to stop and detain your vehicle
- Whether you were lawfully arrested
- If your BAC was 0.08%
- If you refused testing
Penalties for a Second DUI
Fines and sentencing is found under CVC 23542:
Your penalties are typically:
- Fine of $390 to $1,000
- Costs and assessments
- 96 hours in county jail or 10 days
- 3 years to 5 years of Informal probation
- 18-month participation in DUI program or school
One-year license suspension with restricted license available
- Two-year license suspension if refused testing and no restricted license
- Installation of ignition interlock system in vehicle
- Proof of Insurance Certificate (SR-22)
If on probation for your last DUI, the DMV can suspend your license for 2 years. If you refused testing, your suspension will be 3 years.
Your San Diego DUI Attorney Group lawyer can possibly negotiate your charges to a “wet reckless”, which is still a DUI with lesser fine and other penalties, or to an offense where no alcohol is part of the offense.
The court can impose an additional 96 hours if the following circumstances existed:
- Excessive speeding
- Your BAC was 0.15% or higher
- Any passenger was under the age of 14
- You refused BAC testing
- You caused an accident
- You were in a construction zone
- You fled the scene of an accident
Related Offense-Child Endangerment
Felony child endangerment charges are possible if you had a passenger under 14 and your driving conduct was severe or other aggravating conditions were present, which carries up to 6 years in state prison under PC 273a:
(b) Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor.
(c) If a person is convicted of violating this section and probation is granted, the court shall require the following minimum conditions of probation:
(1) A mandatory minimum period of probation of 48 months.
(2) A criminal court protective order protecting the victim from further acts of violence or threats, and, if appropriate, residence exclusion or stay-away conditions.
(3) (A) Successful completion of no less than one year of a child abuser's treatment counseling program approved by the probation department. The defendant shall be ordered to begin participation in the program immediately upon the grant of probation. The counseling program shall meet the criteria specified in Section 273.1. The defendant shall produce documentation of program enrollment to the court within 30 days of enrollment, along with quarterly progress reports.
(B) The terms of probation for offenders shall not be lifted until all reasonable fees due to the counseling program have been paid in full, but in no case shall probation be extended beyond the term provided in subdivision (a) of Section 1203.1. If the court finds that the defendant does not have the ability to pay the fees based on the defendant's changed circumstances, the court may reduce or waive the fees.
(4) If the offense was committed while the defendant was under the influence of drugs or alcohol, the defendant shall abstain from the use of drugs or alcohol during the period of probation and shall be subject to random drug testing by his or her probation officer.
(5) The court may waive any of the above minimum conditions of probation upon a finding that the condition would not be in the best interests of justice. The court shall state on the record its reasons for any waiver. If a fatal accident occurred, the DA can charge you with either felony DUI under CVC 23153, or gross vehicular manslaughter or vehicular manslaughter. The latter is a “wobbler” and may be charged as a misdemeanor.”
Under this statute, your San Diego DUI Attorney Group lawyer can plea bargain the charge to a lesser sentence such as participation in SCRAM, or home monitoring, or other alternative sentencing and to run concurrently with any sentence imposed for the DUI.
Defenses that our highly skilled attorneys can raise depend on the circumstances and facts of each case. Commonly used defenses include:
- No probable cause to stop and detain you
- No probable cause to arrest you for DUI
- Flaws in the breath or blood test or in its operation
- Certain factors influenced the results
- You had a medical condition that interfered with the test results
- The breath taking device was not serviced or maintained properly
Promptly contact one of our skilled attorneys from the San Diego DUI Attorney Group if facing any kind of DUI charge to preserve your rights and the opportunity to raise all available defenses.