In California, driving under the influence charges are priorable, and a previous conviction within ten years can be used to increase penalties on a subsequent DUI offense. The penalties and consequences of a second DUI charge are harsher, and the prosecution team and judges take the violation seriously. If charged with a second offense DUI, you should engage a knowledgeable defense lawyer to defend your freedom and constitutional rights. Riverside Criminal Defense Attorney Law Firm has been practicing law for many years and can use the expertise and dedication to obtain favorable case results for you.

What Constitutes California Second DUI Offense

California laws ban all drivers from driving:

  • while under the influence of alcohol or drugs, or
  • with a blood alcohol concentration that exceeds 0.08 percent

A person is considered under the influence if their mental and physical abilities are too impaired to operate a vehicle with the caution of a sober driver.

In many states, a prosecutor can charge a driver with driving under the influence for being in actual physical control of a car while drunk. In layman's language, actual driving is enough but not needed to be convicted. However, in California, evidence of driving is required for the conviction (being in physical control is not sufficient).

If a person has a prior driving while under the influence conviction on your criminal record within the last ten years, it will count as your previous, making this the second DUI crime. Also, crimes like wet reckless count as previous DUI. The window goes back from your arrest date.

Please note that arrests that did not lead to DUI convictions do not count.

Criminal Penalties for the Second DUI Crime

One frequent question asked by persons arrested and prosecuted with a second drunk driving crime is how judges handle the penalties differently from the first conviction. There is no exact answer to the question. The answer largely depends on the case facts of every case.

When sentenced for DUI for your second time, the court will impose penalties, such as:

  • A maximum of five (5) years of misdemeanor (summary) probation
  • Up to a year in jail
  • Fines that range between $390 and $1,000 plus an additional one thousand dollars in penalty assessment
  • Installing an ignition interlock device for one year
  • Completing a DUI school

Withdrawal of driving privileges for two years that after 12 months can be transformed to a restricted license. Alternatively, you can obtain an ignition interlock device restricted license immediately; it lets you operate your car anywhere, provided you have installed the IID

When the judge imposes a sentence that involves probation, they can include the terms and conditions below:

  • You should not drive your car with alcohol in your blood
  • You must take chemical tests of your breath, urine, or blood if charged with a subsequent drunk driving crime
  • You should not commit another offense
  • Attending Narcotics Anonymous or Alcoholics Anonymous meetings
  • Participating in the Mothers Against Drunk Driving Victim Impact Panel
  • Paying restitution if your drunk driving conduct resulted in an accident
  • Installing ignition interlock devices on all motor vehicles your drive or own for up to three years

How Driver's License Works Following a Second Driving Under the Influence Offense

Facing a second drunk driving charge does not necessarily mean you will lose the driver's license. The withdrawal of driving privileges is not automatic, and there are several ways to prevent the suspension.

Only the Department of Motor Vehicles will or can suspend your license. Generally, two independent proceedings can trigger the DMV to impose license suspension:

  • Suspension due to drunk driving court conviction per VC 23152(a) pr VC 23152(b)
  • Administrative Per Se (APS) suspension

Administrative Driver's License Suspension

If charged with a second drunk driving charge, you need to recognize that the Department of Motor Vehicles will try to suspend the license because of an administrative per se (APS) violation.

Immediately following your arrest, you have ten (10) days to request your California DMV hearing. The request will temporarily put your license suspension on hold. Otherwise, the DMV will automatically suspend the license.

Only persons arrested for DUI with a blood alcohol concentration greater than 0.08% face administrative license suspension. If you take a breath or blood test the BAC results are less than 0.08%, the authority will not withdraw the driving privileges.

If the BAC is at least 0.08%, you should request your DMV hearing. An experienced and knowledgeable Riverside defense lawyer can help you prevail at your hearing by presenting the most appropriate legal defense.

If you prevail in the hearing, the DMV will not suspend the license. On the other hand, should you lose the hearing, the suspension is one year if you have a previous DUI conviction in your criminal record. However, the DMV will allow you to enjoy your driving privileges during your driving suspension if you install an IID in your car.

Court Triggered Driver's License Suspension

You will face a two-year court-triggered driver's license suspension if you have a previous wet reckless or drunk driving conviction within the look-back period.

Nevertheless, the judge does not suspend the license. Instead, following the conviction, the court informs the California Department of Motor Vehicles, and the DMV imposes your suspension.

You can have your DUI charges reduced to reckless driving or a less severe crime that avoids the court-imposed driver's license suspension during your plea bargain negotiation.

Generally, the DMV allows accused persons to continue enjoying their driving privileges anywhere during the license suspension, provided they install an IID in the motor vehicles.

If the case proceeds to trial and it leads to a mistrial, "not guilty" verdict, chances are you will not face the court-imposed driver's license suspension.

How Does DMV License Suspension Differ From Court Triggered Suspension?

The DMV administrative and court criminal proceedings are different from each other. Your California DMV hearing handles the driving privileges and DUI arrest circumstances and facts. On the contrary, court proceedings determine whether you violated California DUI laws or not.

Other significant differences between the proceeding include:

  • You can decide whether to have the administrative hearing or not and whether to have your criminal defense attorney present during the hearing. The court proceedings require either the defendant or their legal counsel to attend scheduled court hearings.
  • Reducing the drunk driving charges to reckless driving in court is an independent administrative proceeding. In other words, it does not impact your driver's license suspension.
  • Your victory at the DMV hearing does not directly affect court proceedings. Only a hearing officer sets aside administrative actions against your license. The decision is independent and separate from the criminal charges, sanctions, decisions, or penalties.
  • Should the defendant lose the DMV hearing, they have a renewed entitlement to a hearing within a year from the arrest date when:
  1. Their drunk driving charges are dismissed,
  2. The District Attorney fails to file the criminal charges due to insufficient evidence, or
  3. The charges are filed, but the court dismisses them due to illegal search and seizure or insufficient evidence under PC 1538.5

Can You Obtain a Restricted Driver's License Following Your Second Drunk Driving Offense?

Generally, there are two forms of California restricted licenses, including:

a. Ignition Interlock Device Restricted License

IID prevents your car from igniting when it detects you are intoxicated. The DMV allows you to continue using your car everywhere during the suspension if you install a breathalyzer in your vehicle.

To acquire your IID restricted license, you should:

  1. Enroll in DUI school
  2. Pay the required fees to obtain your license
  3. Bring an SR22 form (The SR-22 is a document showing proof of financial responsibility, and you should file it with the DMV. You should carry the auto coverage during your suspension period).

Your IID restricted license period lasts for one (1) year for your second DUI charge.

b. Restricted License

Your restricted license helps you go to and from school, DUI school, or work.

The Department of Motor Vehicles will need the defendant to bring an SR22 form to restore the license once their suspension period elapses or acquire their restricted license. They should maintain the SR22 with the DMV for three (3) years from when the license is reinstated.

While the Administrative Per Se suspension is one year if this is your second DUI offense, you can acquire your restricted driver's license after ninety days if you took the breath or blood test and have proof of the breathalyzer installation. Your restricted license permits you to operate your car at any place, provided it is in a vehicle with a breathalyzer. It is needed for twelve (12)  months.

Regrettably, if you are facing second DUI charges and refuse to take chemical tests, you will face harsher penalties. The DMV will revoke your license for two years. Also, you do not qualify for your restricted license throughout your suspension. You must install it immediately to acquire your restricted driver’s license on the 91st day once the suspension begins.

Before obtaining your restricted license, the DMV record ought to indicate that your court-imposed driver's license suspension has begun. Nonetheless, a suspension following a conviction does not have to have already run three months, as long as the Administrative Per Se has run 90 (ninety) days.

Aggravating Factors to Your DUI Offense

Aggravating factors are case circumstances and facts that enhance the seriousness of the crime or your culpability and warrant harsher sentencing. Below are common sentencing enhancements:

  • Minor passenger — Having a child passenger younger than fourteen years at the arrest adds mandatory and consecutive ten days in jail for your second crime.
  • Excessive speed — Operating your car at least 20 miles per hour over the speed limit on highways or streets or above 30 miles per mile over the limit on a freeway during the arrest adds sixty days to your jail term.
  • Your fines will be doubled for drunk driving in safety enhancement and maintenance or highway construction zones.
  • Driving your car with a BAC higher than 0.15 percent
  • You will face more severe penalties if you cause an accident while driving under the influence
  • Failing to submit to chemical testing — Obtaining a driver's license automatically consents to chemical testing whenever suspected of DUI. While the arresting police officer cannot force you to submit to the test, refusing to take the test can enhance your DUI penalties.

How to Fight Your Second DUI Crime

If you have been arrested for a second drunk driving crime, you risk facing severe penalties and collateral consequences that can affect you for many years to come. It is possible to believe that the prosecution team has a strong defense against you, and there is no defense you can raise.

Nonetheless, a skilled lawyer can help you fight the charges. The legal counsel will evaluate the case before developing the most appropriate legal defense for your case.

Some of the defenses they can use include:

  • The field sobriety tests do not measure impairment accurately
  • Objective intoxication symptoms do not mean drunk driving
  • The arresting law enforcer did not observe you for at least 15 minutes
  • Your blood alcohol concentration was on the rise
  • Bad driving is different from drunk driving
  • Medical conditions like heartburn or acid reflux contaminated your breath test results
  • Violation of Title 17 of the California Code of Regulation compromised your BAC results

Can You Expunge Your Second DUI Offense from Your Criminal Record?

While the collateral consequences of your second-time drunk driving crime are severe, you can remove the conviction from your criminal record through expungement.

Under PC 203.4, expungement releases a defendant from several effects of a DUI conviction.

A defendant qualifies for expungement as long as:

  • They completed their DUI probation, and
  • They did not serve time for the crime in California state prison.

After completing your DUI probation, you can file a petition to the court to expunge your conviction record. Then the judge will review your petition to determine whether you qualify for expungement or not.

Should the judge grant your petition:

  • You will withdraw the plea of no contest or guilty and enter a "not guilty" plea, or
  • If you are found guilty following a trial, the judge will set aside the guilty verdict

Finally, the judge will dismiss your case.

Notable benefits of an expungement include the following:

  • Assists you in securing employment, housing, and educational opportunities with ease
  • Aids with obtaining professional licenses and joining professional organizations
  • Personal satisfaction
  • It prevents your previous conviction from being used to impeach the credibility in specific court proceedings.

DUI Plea Bargain

You can use plea bargain negotiation as your defense when facing second-time drunk driving charges. The plea bargain is an alternative to taking the criminal case to trial and facing a conviction. A plea bargain involves negotiations between the prosecutor and your defense lawyer when you plead guilty to a less severe crime for a reduced sentence or penalties.

Whether a defendant should accept a DUI plea deal is a decision they must make after consulting their defense lawyer and carefully considering the case facts. Factors to consider include:

  • How strong is the prosecutor's case — You should accept a plea offer if the prosecutor's evidence against you is strong.
  • The nature and severity of the prior DUI conviction
  • The risk tolerance — If you think your DUI case is strong and you can successfully defend yourself, then accepting the plea bargain deal is not wise.

Common plea bargain deals you can explore for your second-time DUI offense include the following:

  • Exhibition of speed
  • Wet reckless — It is DUI charge reduction with alcohol involved.
  • Dry reckless — The DUI charge reduction does not involve alcohol. One benefit of a dry reckless plea is that it is not considered a previous drunk driving offense on the criminal record.
  • Traffic infractions — A traffic infraction is not a crime and only attracts fines. The prosecution team will offer this plea when it is confident its case against you is weak.

You plead no contest or guilty to a lesser crime when you take a DUI plea deal. Depending on your plea deal, you can enjoy any of the following benefits:

  • No compulsory license suspension
  • Reduced jail time and fines
  • Less adverse effect on your auto insurance premiums
  • Less social stigma

Your Miranda Rights in Your Second DUI Criminal Charge

Miranda rights are warnings the police ought to read to a defendant before interrogating them. The right applies to all criminal cases, and it seeks to protect defendants against self-incrimination per the Fifth Amendment to the U.S. Constitution.

While there are no specific statements for the warning to be lawful, Miranda warnings in DUI charges could read as follows:

  • You have a right to remain silent
  • The prosecution team can use anything you do or say against you in court
  • You have a right to consult with a defense lawyer and have them present during the interrogations
  • If you cannot afford a lawyer, the court will appoint a public defender

The law enforcer will then check whether you want to waive the right and speak with them.

The defendant can invoke the right at any time.

Should Law Enforcers Read You Miranda Warnings at the Traffic Stop and During the Drunk Driving Investigation?

The law enforcer is not legally supposed to read this right during the investigation (you are not arrested). The investigations involve any occurrence after they pull you over or at the sobriety checkpoint before your arrest.

During your investigation, the officers will:

  • Request to see your driver's license and car registration
  • Request you to take field sobriety tests
  • Check whether you exhibit intoxication symptoms such as slurred speech, dilated pupils, and watery eyes.

The police do not require to read the defendant their Miranda warning for the accused person to exercise this right. Also, it is not mandatory the accused answer the questions at the traffic stop. The defendant should only show the police their driver's license, registration, and auto insurance proof.

Please note that Miranda warnings are only required before the police start custodial interrogation. The interrogating officer can ask the defendant whether they have been drinking alcohol.

Invoking Miranda Rights

Ensure when invoking the Miranda rights, your words should be clear and affirmative. Keeping quiet is not sufficient, and the interrogating officer can use the refusal as evidence of guilt. Nevertheless, they cannot use electing to remain silent against you after invoking the right.

You Can Waive the Right

After reading you the Miranda warning, the police officer will inquire whether you have understood your rights. Additionally, they will ask whether you desire to speak with them (Miranda waiver).

At the moment, you should affirmatively invoke the constitutional right.

The right applies on a proceeding basis. A defendant can invoke their entitlement, even when they have waived it before. All incriminating statements you make following this will be inadmissible. On the other hand, comments you made before invoking your right can be admissible depending on when you made them.

What Transpires If Police Violate Your Miranda Rights?

If law enforcers break the Miranda rights, your criminal defense attorney can file a motion to suppress the evidence. If the court grants your motion, all statements you made after the violation will be inadmissible in court.

Ways the police can violate the entitlement include the following:

  • Failing to read the rights
  • Threatening or coercing you to waive the right
  • Continued questioning after requesting a lawyer
  • Continued questioning after invoking the right to remain silent

Please note that a violation does not necessarily mean the statements will be inadmissible, or the second DUI charge will be dismissed. Only what a defendant uttered during the violation of their right is inadmissible.

Find Skilled Legal Representation Near Me

If you have been charged with a second DUI, the stakes are higher than during your first conviction. In California, prosecutors and judges take drunk driving charges seriously and heighten penalties every time a motorist is found guilty. Do not take the charges lightly. Our legal team at Riverside Criminal Defense Attorney Law Firm is skilled and experienced in building strong defense strategies that can challenge the state's evidence against you. Our efforts can help reduce your charges' severity, avoid driver's license suspension, and significantly reduce incarceration time and fines. Allow us to put our experience and resources to work for you by calling us at 951-946-6366 to schedule your initial no obligation and confidential consultation.