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SECOND DUI – Encino DUI ATTORNEY GROUP

A second DUI arrest may come as a bit of a shock since you may not have been under the influence. In a number of cases, law enforcement are aware of your initial DUI conviction, especially if it was within 10 years and may have given you extra scrutiny during the stop and investigation.

If convicted and this is your second DUI within 10 years, you can expect more severe restrictions and other consequences to your driver’s license, finances and freedom. If you were still on probation for your past DUI and violated it, your chances of going to jail are high.

If you were not on probation, then your sentence may include spending at least two weekends in jail, paying more in fines and assessments, the installation of an ignition interlock device on your car and other penalties. If you live in the Encino area, immediately contact a lawyer from the Encino DUI Attorney Group if you have been arrested and charged with a second DUI.

CVC 23540(a) and 23542 are the relevant code sections dealing with a second DUI:

“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.”

When Stopped and Detained for DUI

Any routine stop for a traffic violation requires you to produce identifying information or your license, registration and insurance information. When the inquiries escalate to asking you about drinking, certain constitutional rights do apply for your protection:

1. You do not have to answer any questions the officer asks, including if you have been drinking.

2. You do not have to perform any field sobriety tests if asked and should politely decline.

3. You do not have to blow into the PAS or portable alcohol screening device

4. Although you can refuse to take a BAC test (breathalyzer or blood), your refusal can be used as evidence that you were intoxicated if you go to trial and is considered an aggravating condition that the court can use to enhance your sentence including adding jail time.

No one is allowed to call an attorney before deciding to take the BAC test so this is a determination you have to make so long as you are aware of the potential consequences for refusing.

Should you be on probation for your first DUI or under the age of 21, 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 constitutes a violation of your probation. If under 21, you can be arrested or detained and you will lose your license in most cases.

Many police departments are having cameras placed on officers or already have recording devices on

top of their vehicles so that any contact and investigation that occurs on the road may reveal improper

conduct by an officer, a failure to follow protocol or even evidence of conduct by you that could

contradict the stated observations of the officer.

The Administrative Per Se Hearing

After you are arrested, you are issued a 30-day temporary license. You can challenge your license suspension by the DMV but you must do so within 10 days. Our Encino DUI Attorney Group lawyers have extensive experience in cross-examining police officers about the circumstances of an arrest and the procedures involved as well as raising any applicable defenses to your BAC testing. The issues at the APS hearing are:

• Was there probable cause to stop and detain your vehicle
• Was your arrest lawful
• Whether your BAC was 0.08%
• Did you refuse testing

These same issues may arise again if you go to trial.

Sentencing and Penalties for a Second DUI

Penalties and sentencing for a second DUI within 10 years are found under CVC 23542:

“(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.

(2) The person’s privilege to operate a motor vehicle shall be suspended by the department under paragraph (3) of subdivision (a) of

Section 13352. The court shall require the person to surrender the driver’s license to the court in accordance with Section 13550.

(b) In addition to the conditions specified in subdivision (a), the court shall require the person to do either of the following:

(1) Enroll and participate, for at least 18 months subsequent to the date of the underlying violation and in a manner satisfactory to the court, in a driving-under- the-influence program licensed pursuant to Section 11836 of the Health and Safety Code, as designated by the court. The person shall complete the entire program subsequent to, and shall not be given any credit for any program activities completed prior to, the date of the current violation. The program shall provide for persons who cannot afford the program fee pursuant to paragraph (2) of subdivision (b) of Section 11837.4 of the Health and Safety Code in order to enable those persons to participate.

(2) Enroll and participate, for at least 30 months subsequent to the date of the underlying violation and in a manner satisfactory to the court, in a driving-under- the-influence program licensed pursuant to Section 11836 of the Health and Safety Code. The person shall complete the entire program subsequent to, and shall not be given any credit for any program activities completed prior to, the date of the current violation.

(c) The court shall advise the person at the time of sentencing that the driving privilege shall not be restored until proof satisfactory to the Department of Motor Vehicles of successful completion of a driving-under- the-influence program of the length required under this code licensed pursuant to Section 11836 of the Health and Safety Code has been received in the department’s headquarters.

(d) Whenever, when considering the circumstances taken as a whole, the court determines that the person punished under this section would present a traffic safety or public safety risk if authorized to operate a motor vehicle during the period of suspension imposed under paragraph (3) of subdivision (a) of Section 13352, the court may disallow the issuance of a restricted driver’s license required under Section 13352.5.

(e) This section shall become operative on September 20, 2005.

Your penalties and sentencing may be summarized as following:

• Probation and 96 hours in county jail or 10 days
• A Fine of $390 to $1,000
• Other costs and assessments that can cost you an additional $1,000
• Informal probation of 3 to 5 years
• Mandatory attendance at an 18-month DUI program or school
• One-year license suspension with restricted license availability
• Two-year loss of license if you refused testing and no restricted license eligibility
• Installation of ignition interlock system in vehicle
• Proof of Insurance or Certificate (SR-22)

If you were on probation for your previous DUI, the DMV can suspend your license for 2 years and for 3 years if you refused BAC testing.

A Encino DUI Attorney Group lawyer can often arrange a reduction of your charges to a “wet reckless. Though still considered a DUI, there are lesser fines and other penalties. Our first priority, though, is exhausting all defenses to get your DUI dismissed or for a jury to acquit you.

Aggravating Conditions

There are certain conditions under which the court may impose additional penalties. If any of theseconditions are present, the court can impose an additional 96 hours in county jail:

1. Excessive speeding or at least 20 mph over the posted limit

2. Having a BAC of at least 0.15%

3. Having a passenger who was under the age of 14

4. Refusing BAC testing without a valid reason

5. You caused a property damage accident

6. You caused a serious injury accident or fatality

7. You were driving in a construction zone while DUI

8. You fled the scene of an accident

In case of a serious injury accident or fatality occurred and you were at fault, the DA could charge you with felony DUI or vehicular manslaughter.

Related Offense– Child Endangerment

Driving DUI with a passenger under 14 in your vehicle can be construed as exhibiting a high degree of irresponsibility or disregard for the safety of others. If so determined, then the DA can charge you with felony child. If convicted, you face up to 6 years in state prison under PC 273a:

“Any person who, under circumstances or conditions 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 is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.

(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 Encino DUI Attorney Group lawyer can plea bargain the charge to a lesser sentence such as participation in a home monitoring program, or any other alternative to keep you out of jail and continuing to work.

Defenses to DUI

Numerous defenses are raised in a DUI case by our highly experienced DUI attorneys depending on the facts of your case. Some of the more common defenses are:

• No probable cause to stop and detain you
• No probable cause to arrest you for DUI
• The arresting officer did not follow proper protocol during the investigation
• Flaws existed in the breath or blood test or in its operation
• Certain factors influenced the results such as your medical condition
• The breathalyzer was not serviced or maintained properly

Promptly contact one of our attorneys from the Encino DUI Attorney Group if you were arrested for a second DUI or any other DUI charge. There are avenues and alternatives to explore in every case. Early representation by one of our attorneys is always in your best interests.