First-offense DUI penalties are harsh, but the penalties for a second offense are even more stringent. This is because driving while drunk or high in California is considered a priorable offense. Priorable offenses are those that carry harsher consequences for repeat offenders. That said, almost all penalties for a first DUI offense, from license suspension to jail time, will be enhanced in severity and duration for a second DUI offense. Judges and prosecutors are also less lenient when dealing with second DUI offenders. 

Therefore, if you are accused of a second DUI violation, you need to do everything you can to avoid a conviction and, in turn, the accompanying harsher consequences. One way to prevent a conviction is by hiring an experienced DUI defense attorney. At California Criminal Lawyer Group, we can help you negotiate for charge reduction or dismissal or build a winning defense strategy that may obtain you an acquittal in case your case goes to trial. Call us if you face prosecution for DUI in Bakersfield, and our lawyers will do what they can to achieve your desired outcome.

When Is DUI Considered a Second Offense?

You commit a drugged-or-drunk-driving violation in California when you violate the state's DUI laws. These laws include, among others:

  • VC 23152(a), driving under the influence;
  • VC section 23152(b), driving with a 0.08% or greater BAC level;
  • VC 23152(d), commercial DUI;
  • VC 23152(f), driving while high on drugs;
  • VC 23153, driving under the influence, causing injury;
  • VC 23103 and 23103.5, wet reckless

The general rule under California's 23622 VC states that if a present drunk-driving charge occurred in ten years of the previous DUI violation, the judge would treat the earlier violation or violations as prior for purposes of sentencing for the new crime.

The ten-year period looks only at the incident dates of various crimes. That means if someone is accused of a DUI crime and already has one prior DUI, the new violation would be deemed a 2nd DUI, but only if the prior violation occurred within ten years.

There might be situations where the prior DUI violation happened more than ten years ago. Still, the conviction and sentencing for that crime occurred within ten years of the current violation. In this case, the recent crime would not be deemed a 2nd DUI offense under the law. Conversely, if the 2nd DUI violation happened on the tenth-anniversary date of the accused's first drunk-driving crime and they were convicted some months later, the newer violation would be deemed a second drunk-driving violation under the state law since the dates of the two incidents fell within 10 years of each other.

Courts treat second- and first-time DUI crimes significantly differently. A conviction for a 2nd DUI offense necessitates a mandatory jail term, with at least ninety-six hours spent in incarceration. Some counties, like Riverside, Orange, and San Bernardino, require significantly longer incarceration periods than the stipulated mandatory minimum. It is, therefore, not uncommon to see judges imposing incarceration periods between thirty and sixty days on defendants' 2nd DUI convictions in these counties.

The 10-year period is also applicable to a defendant's 3rd, 4th, or subsequent drunk-driving violation, and the current crime will be prosecuted accordingly based on the number of prior DUI violations that have occurred within the last ten years.

Only DUI, wet reckless, and DUI with injury convictions can be considered in enhancing sentences for subsequent drunk-driving incidents. So, if the accused's prior drunk-driving charges were reduced to VC 23103, dry reckless, or VC 23109(c), an exhibition of speed, the new crime would not qualify as a 2nd DUI for sentencing purposes. A defendant's previous out-of-state drunk-driving convictions could also be considered for sentencing enhancement purposes.

Just because your previous drunk-driving conviction happened way past the 10-year window does not mean it does not count. The prosecutor and court would still take note of that conviction. Whereas your new case might not be deemed a second DUI violation under the state's law, the D.A. may pursue additional punishment due to your criminal history. Even though mandatory jail terms might not apply in this case, you might face more penalties to add to what is usually imposed for a typical first-offense DUI.

2nd Offense DUI Penalties

The penalties for a second DUI offense are administrative and criminal.

Administrative Penalties

No formal consequences exist for many crimes unless the accused is found guilty (by being pronounced guilty during the trial or taking a plea). That is not the case with drunk driving. If you are arrested for driving while intoxicated, you may face administrative consequences like fees and license suspension, irrespective of whether you are eventually found guilty of drunk driving in criminal court.

If you have been found guilty or had your driving privilege suspended for drunk driving within the last ten years, the administrative driver's license suspension will be for:

  • 12 months if you failed chemical testing with a blood alcohol content of 0.08 percent or higher, or
  • Two years if you declined to undergo chemical testing, violating the state's implied consent rule.

These administrative penalties are imposed by the California DMV instead of the criminal court.

You could be subject to administrative penalties ten days after being arrested for DUI, even before your case undergoes criminal prosecution in court. This is because the California DMV will automatically suspend your driving privileges after a DUI arrest unless you demand a DMV administrative hearing within ten days of your arrest. In this proceeding, you can defend your license by convincing the DMV not to suspend it.

Should you fail to request a DMV administrative hearing within the stipulated period, you will lose that right and automatically lose your driving privilege. Your lawyer can assist you in defending your rights at a DMV hearing to avoid a license suspension.

Criminal Penalties

A second drunk-driving violation DUI is generally a misdemeanor when tried in criminal court. A conviction carries the following penalties:

  • Summary probation for not more than five years.
  • DUI school for up to eighteen months or thirty months.
  • Penalty assessments plus fines between $390 and $1,000: It is critical to remember that various penalty assessments and fees can substantially increase the amount of your fine.
  • Between ninety-six hours and 12 months in jail, which could be converted to work service or house arrest.
  • License revocation or suspension for 24 months. Note that this suspension differs from the one the DMV imposes. So, you can face criminal license suspension even if you win at your DMV hearing, and you can still face administrative suspension even if you win your criminal court case. However, the criminal and administrative suspension periods can overlap; therefore, the total revocation or suspension period will not exceed two years.
  • A restricted driver’s license. A judge can order that you acquire a restricted driver’s license that will enable you to drive to and from places such as school and work. If it is a drug DUI offense, you must complete a year of the driver's license suspension before qualifying for a restricted license.
  • Installation of an IID for one year at the minimum.

Nonetheless, the punishment for a 2nd offense DUI varies based on the facts of the case and the county where the conviction happened.

Importantly, if a judge awards you a probation term, they will impose these conditions:

  • You should not drive any automobile with a detectable alcohol level in your body.
  • You should not decline to undergo urine, blood, or breath chemical DUI testing if caught drunk driving again.
  • You should not commit additional offenses.

Additionally, the judge may impose these probation requirements for your second DUI offense based on the elements of your case:

  • You must have an IID on all the cars you operate or own for up to three years.
  • You must pay restitution (if your intoxicated driving caused a collision).
  • You must participate in the MADD (Mothers Against Drunk Driving) Victim Impact Panel.
  • You must attend NA or AA meetings.

Aggravating Factors

Aggravating factors refer to elements that cause the D.A. to pursue a harsher sentence. A California 2nd DUI offense can involve more severe penalties if the police arrest the defendant and the following aggravating factors are present in their case:

  • Driving an automobile with a blood alcohol concentration level that is nearly two times the stipulated legal limit (0.15 percent or more).
  • Refusing to take chemical tests.
  • Driving while intoxicated as a child.
  • Speeding while intoxicated with alcohol or drugs.
  • Driving under the influence with a child passenger.
  • Causing a collision or injury to someone else while driving under the influence.
  • DUI with multiple victims.

The type of increased sentence you face depends on the type of aggravating factor available in your case. For example, if you had refused to undergo DUI chemical testing after your arrest for a 2nd DUI violation, you would face a mandatory 96-hour jail sentence, whether or not you were sentenced to probation. Additionally, you will face a license suspension for 24 months and will be ineligible for a restricted license during the suspension period. If you drove with a child passenger, you would face a mandatory ten days in jail. And if you drove with excessive speed while intoxicated, you would face an additional 60 days in jail.

Undoubtedly, a past drunk-driving conviction, combined with any of the aggravated elements mentioned, will make the pending punishment more severe.

Will a 2nd Drugged- or Drunk-Driving Offense Conviction Trigger a Permanent Criminal Record?

Although a conviction for a second DUI offense is disappointing, you can have it erased from your record. This can be achieved by obtaining a record expungement. You qualify for a record expungement for your second DUI offense, provided you were subject to probation and served the sentence, including complying with all the conditions.

In most ways, expunging a DUI conviction works similarly to expunging other criminal records. Essentially, you will need to file a petition, which will undergo review by the judge. Should the judge grant your request, you will withdraw your nolo contendere, or guilty plea, and re-enter a not-guilty plea. Once you have pleaded not guilty, the judge should dismiss your case.

Fighting 2nd DUI Violation Charges

An arrest and prosecution for a second-offense DUI are daunting challenges, but at the same time, they are surmountable. When you work with the right drunk-driving lawyer, there is hope that you will be acquitted or that your case will be dismissed. However, to achieve all this, you want to have the mindset right after detention to have an attorney examine your case facts.

So much comes into play when developing an effective drunk-driving defense strategy, and some must be completed within a few hours after detention. The specific reasons to hire an attorney to assist in fighting your case include: 

Evidence Gathering and Analysis

A good defense lawyer would understand how to gather and analyze the evidence that will be helpful to your DUI defense. Evidence collection and analysis involve subpoenaing witnesses helpful to your case. It also includes retrieving the police car video of when you were pulled over and all the accompanying audio recordings. For example, if a police officer states that they made you stop because you lacked a front license plate and the opposite is proven by showing the police did not view the front part of your automobile before the stop, this may be essential in ruining the police officer's testimony.

Legal Writing and Research

Apart from hiring a lawyer to help you collect and interpret evidence for your case, an experienced criminal defense lawyer will also use the collected evidence to compose written motions to support your case. If, for example, you reasonably believe the officer handling your arrest treated you inappropriately, unprofessionally, or unjustly, that would be police misconduct. In this case, your lawyer can bring a Pitchess Motion. A Pitchess Motion, which can be brought and resolved before trial, can allow your lawyer to find dirt from a police officer's file, potentially giving you more ammunition for fighting your charges.

Plea Bargaining

It is also critical to hire a lawyer because they may achieve the most favorable outcome for you. Because most drugged-or-drunk-driving cases do not reach the trial stage, having an experienced DUI trial lawyer is critical, just as it is crucial to have a lawyer who understands how to deal with prosecutors. These negotiations may help you obtain dry or wet reckless charges for your 2nd DUI violation.

Presentation of Legal Defenses

If, in the unfortunate event, your 2nd offense DUI case goes to trial, an experienced lawyer would know how to develop a solid defense strategy to beat the charges. They would understand what legal defenses to argue that would obtain a non-guilty verdict. Based on the facts of your case, some of the defenses you and your legal counsel could present are:

  1. FSTs (Field Sobriety Tests) Do Not Always Accurately Tell Impairment Level

If you have been accused of a 2nd offense DUI and the district attorney's evidence includes field sobriety test results, your counsel may successfully challenge the results as a defense strategy.

Prosecutors and arresting officers rely heavily on field sobriety tests; they virtually consistently attest that the defendant recorded poor test results. Consequently, they conclude that the accused drove while drunk.

Your attorney might successfully clarify how nerves, clothing, natural physical coordination, fatigue, and other issues can affect coordination and balance when a person takes field sobriety tests. They will also question how reliable the field sobriety tests themselves are.

The NHTSA states that field sobriety tests correctly predict alcohol impairment 91 percent of the time. However, even if this percentage is factual, it presumes that the environmental conditions under which the tests are administered are perfect and that the test administration officer has experience and proper training. But these factors may vary considerably, making inconsistent field sobriety test results a valid defense against your charges.

  1. You Were Driving Badly, But That Does Not Mean You Were Drunk

Your lawyer can help you fight your second-offense DUI charges by asserting that you drove poorly or erratically but were not intoxicated with alcohol or drugs. This defense will be more helpful if you have been charged under VC 23152(a).

Among the first elements D.A.s consider in DUI cases is the driving pattern. They often have the arresting officer attest that the defendant's driving pattern was consistent with the driving pattern of someone intoxicated with drugs or alcohol. Usually, this supposed pattern includes claims that the defendant was weaving within their lane or speeding.

If this defense applies to your case, your attorney can argue it by urging the officer to tell the court about all the times that you have driven properly and cautiously. From the arresting officer's testimony, they will then be able to make the court see that driving patterns are not reliable indicators of DUI.

  1. Mouth Alcohol Triggered a Falsely Higher BAC Level

Falsely higher BAC test results can also form a successful defense for your 2nd offense DUI, especially if you are under prosecution for operating a vehicle with a blood alcohol content of 0.08 percent or more under VC 23152(b). Before requiring you to undergo breath testing, a police officer must observe you for 15 minutes to ensure you do not place any alcohol-containing material in your mouth during this period, including medicines, mouthwash, mouth spray, or drinks.

The arresting officer must also ensure you do not regurgitate, belch, or burp, as doing so could drive the alcohol in your stomach to your mouth, resulting in residual mouth alcohol—a common DUI defense. How accurate DUI breath test gadgets are depends on how they measure alveolar air. However, when you blow into a breathalyzer and have alcohol in your mouth, the alcohol will mix with alveolar air, causing your BAC test to record a falsely high result.

  1. A High-Protein Diet, Diabetes, or Hypoglycemia Causes a Falsely High BAC

Medically, knowledgeable DUI defense lawyers understand that health conditions such as diabetes and particular diets can create the foundation for a solid defense against DUI charges. Our bodies usually obtain fuel from carbohydrates. However, the body must break down stored fats for fuel under given conditions. These conditions include diabetes, low-carb or high-protein diets, and fasting.

When the body burns fat, the liver generates toxic byproducts known as ketones, which chemically resemble the isopropyl alcohol in solvents like acetone. Some of the ketones are excreted in the breath. Unluckily, these ketones can trick breathalyzer devices because these devices do not always accurately distinguish ethyl alcohol (found in alcoholic beverages) from isopropyl alcohol. This can result in a falsely higher BAC reading during breath testing, triggering unfair DUI charges.

Ketosis may also produce other signs similar to alcohol impairment, like a breath with an alcoholic smell, a lack of or diminished coordination, and confusion.

  1. The Arresting Officer Did Not Follow the Necessary Procedures

Another compelling DUI defense is an arresting officer's failure to follow the necessary procedures when conducting a DUI arrest. A DUI investigation is regulated by various procedures to safeguard defendants from misconduct by the police. These procedures include the following:

  • Title 17 Regulations and procedures.
  • A condition that the arresting officer must have probable cause to pull a person over for DUI, conduct a DUI arrest, or carry out a DUI investigation.
  • A condition that the police officer reads the DUI arrestee their Miranda rights before interrogation.

If the Arresting officer violated any of these rules, your DUI attorney can file a motion to suppress evidence, which will seek to:

  • Exclude the evidence that was not properly acquired, and
  • Give your attorney a pretrial chance to poke holes in the prosecution's evidence and persuade the D.A. to reduce or drop your DUI charges.

Find a Knowledgeable DUI Defense Lawyer Near Me

A lot is at stake when you face 2nd DUI charges—your freedom, future, finances, and license, just to mention a few. For this reason, you want to let a skilled DUI defense attorney represent you and fight to protect your best interests. With a lawyer by your side, you have a high chance of minimizing the hefty administrative and legal penalties you face. If you have been arrested in Bakersfield, we at California Criminal Lawyer Group can help you. Call us today at 661-750-8230 to set up a cost-free consultation with one of our expert attorneys.