2nd Time DUI Cases: Law Office of Ann Gottesman

A second DUI can trigger fear and uncertainties about the penalties you will face. While you may have had a favorable ruling in the first offense, you might be worried whether you can get a similar one the second time around.

A second time DUI carries potentially more severe penalties than the first. While both are still misdemeanors (assuming there are no serious injuries or you have a prior felony DUI) you will have more obligations and a mandatory minimum jail term compared to the first conviction.  But this is only IF you are convicted of a second offense. The DMV will also suspend your license for a longer period IF you lose the DMV hearing (the “APS” Administrative Per Se hearing). The conviction also may affect your employment opportunities. For instance, if you are convicted for a second offense as a commercial driver, you will lose your commercial driver’s license for life.

You may be able to avoid or minimize these penalties by using a strategic DUI defense with the assistance of a good DUI lawyer.  DUI defense attorney Ann Gottesman takes special care with her clients to provide personal, compassionate and experienced representation. A focused defense can achieve results like reduced charges, reduced punishment, alternative to jail, dismissal, and acquittal after a jury or court trial. Read on to learn more about a 2nd time DUI, the potential penalties, and defenses that may work for you.

Overview of a 2nd Time DUI

Our government officials will always remind us that drunk driving is a serious problem in California and one of the leading causes of traffic accidents.  Of course, no one wants to be involved in a DUI, but as humans we make mistakes at times.  Yet other times, over-zealous police officers may arrest a driver who is not even guilty of driving under the influence in violation of the law. At times, prosecutors and District Attorneys will charge people with DUI on less than sufficient evidence.

Californian courts seek to reduce the drunk driving menace through the introduction of stringent laws to punish offenders. These laws categorize DUIs as priorable offenses with a lookback period of ten years from date of arrest to date of arrest.

A second time DUI offense is the second DUI offense you commit within ten years of the first offense. You can be charged with a second offense if you have a prior conviction for the following offenses:

  • VC 23152 (a) driving under the influence of alcohol
  • VC 23152 (b) driving with a BAC of .08% or higher
  • VC 23152 (d) driving a commercial vehicle with a BAC of .04%
  • VC 23152 (f) driving under the influence of drugs
  • VC 191.5 Vehicular manslaughter
  • Out of State DUI conviction under a statute that is “substantially similar” to our state’s DUI statutes
  • VC 23103 per 23103.5 (Wet reckless)
  • Even if these prior convictions were “Expunged”, they will still count as a prior if committed within 10 years of the current DUI arrest.

A charge of a second time DUI offense can trigger worries about the potential and lifelong consequences. Like in the first offense, you have to deal with both administrative and criminal proceedings.

The DMV is responsible for maintaining your driving record. It maintains a record of traffic offenses you have committed. These offenses reflect on your driver’s license as points; a DUI offense triggers a suspension action against your license.

Arresting officers are responsible for confiscating your driver's license once they arrest you for a DUI if you are arrested for a refusal or for driving while have a .08 percent blood alcohol content. The officer will issue you a temporary permit that allows you to drive for the next thirty days, after which you will lose your license….UNLESS… you request a DMV hearing within ten days of the arrest.

The DMV allows you ten calendar days from the day of your arrest to challenge the pending suspension. You will challenge the action by requesting an administrative hearing. Your attorney should contact DMV to request an in-person hearing, all discovery (police report and evidence), and a “stay”. The stay on the suspension means you can keep driving pending the outcome of the hearing, as long as you had a valid license at the time you were arrested.  If you were driving on a suspended license, you would need to fix that issue before getting a temporary license from DMV.

DUI criminal proceedings are more formal (they are in court, not at a DMV office).  Criminal proceedings can take a short or a long time from start to finish, with some cases lasting up to a year. Of course, a lot depends on the facts of your case, how long it takes for the attorney to obtain the evidence and subpoenaed discovery, and whether it is in the client’s interest to take the case to trial or negotiate with the prosecutor.  Everyone accused of a crime has a speedy trial right but sometimes it is beneficial to waive that right in order to obtain other advantages.  Each case is different in this respect.

The first step in a DUI investigation is usually the detention.  If the officer has reasonable suspicion to stop an induvial for violating a criminal statute (including such offenses as traffic infractions like swerving or speeding), then the officer will try to obtain clues of intoxication during his or her contact with you.  Only if he or she finds probable cause to arrest for DUI, can the police officer proceed with an arrest.  Usually this is done through a DUI investigation which precedes the arrest. Once the officer establishes probable cause to arrest for a DUI, he or she will typically bring you to the station for a chemical test and booking.  However, some officers are releasing drivers with a citation and foregoing the booking process.

The officer will also prepare a report of the incident and include results or information about the chemical breath or blood samples that were obtained during the investigation. The officer will then submit the report to the prosecuting agency, which will decide whether to file charges.

If the prosecution files charges, the next step will be the arraignment. At the arraignment, you will learn of the exact charges against you and take a plea. Often, if you have a private DUI defense lawyer representing you, he or she may be able to appear without you and plead not guilty on your behalf.   Sometime the prosecution makes you an offer in exchange for a guilty plea at the arraignment stage but most of the times it is NOT in the benefit of the accused to plead guilty on the first court date.  (Since there are exceptions for every rule, do not make any decisions based upon information on this site without speaking to your attorney.)

Taking a not guilty plea allows your lawyer to access the evidence the prosecution has and a chance to fight the charges against you. If you feel the evidence is overwhelming, or that is in your interest to not pursue a trial, you can always settle through a plea deal.  Having an experience lawyer who is familiar with the prosecutors and judges were your case is being prosecuted usually provides an advantage.

If you ultimately accept a plea offer and plead guilty or no contest, the court will sentence you and close your criminal case. However, you will have to fulfill the obligations of your probation which may include a jail sentence, DUI classes (SB38 or 18 month class for second DUI offense), and other terms.

If you plead not guilty at the arraignment (or if your attorney pleads not guilty on your behalf), the case will continue into the pretrial phase. At this stage, your attorney will have ‘discovered’ the evidence the prosecution has against you. Your attorney will then investigate the case to establish the strengths and weaknesses of the case against you.  Also, through the APS (Administrative Per Se) hearing with the DMV, your lawyer will also be able to obtain evidence including the arrest report, traffic collision report, breath or blood test results, calibration and accuracy records, blood packets, usage and maintenance logs, dispatch logs, etc.. Often times the evidence is obtained through the DMV process more quickly than through the legal discovery process at the court.

The pretrial phase gives your attorney the best chance to negotiate with the prosecution. These negotiations aim to have the prosecution reduce or dismiss your charges. However, since the prosecutor, at this stage, has total discretion to say “no” to any reduction or dismissal of charges, your lawyer may decide it is better to let a jury or judge decide whether the evidence demonstrates a dismissal or acquittal is warranted, instead of the prosecutor making the decision.

The final stage in the DUI process is either the negotiated disposition (a plea agreement) or the trial. While most of the DUI cases settle during the pretrial phase, a few will go to trial. As an accused, you have an absolute right to not accept ANY deal by the prosecutor and exercise your constitutional right to a trial by a jury.

A trial, the prosecution and defense present their cases and arguments. The jury will then determine your guilt based on the presentations of the defense and the prosecution. But remember, the government (prosecution) must prove each element of the charges by proof beyond a reasonable doubt, AND, this must be proven to EACH juror!  If even one juror refuses to convict, the judge will either declare a mistrial, after which the prosecutor can decide to file charges again and start all over, or the judge can decide to dismiss the case in the interest of justice.   If the jury decides that you are guilty, you will receive the sentence immediately or during a sentencing hearing. Your lawyer can submit a sentencing motion or orally explain why you should receive a lesser sentence than the DA is requesting.

Second Time DUI: Elements of the crime the Government must prove to secure a conviction:

Under California Vehicle Code Section 23152(a), to prove the defendant committed a second time DUI, the prosecution must prove these elements beyond a reasonable doubt:

  • The defendant drove a vehicle
  • When the defendant drove, he or she was under the influence of alcohol or drugs, or both
  • The defendant suffered a priorable conviction for which the arrest was within ten years of the arrest for the current offense

Under section 23152(b) of the California Vehicle Code, the prosecution must prove beyond a reasonable doubt these elements of the offense:

  • The defendant drove a vehicle
  • The defendant drove with a BAC (blood alcohol level) of 0.08 percent or more
  • The defendant suffered a priorable conviction for which the arrest was within ten years of the arrest for the current offense

DUI Defense

Whether you settle before or after trial, you have to defend yourself against these charges. You can apply several defenses in your case, depending on the circumstances of your case.

If you are working with an attorney, he or she will work on developing the best defense strategy. The process may involve going to the scene, retesting your blood sample, reviewing the police report, subpoenaing evidence, and questioning witnesses and experts.

Some of the applicable defenses include:

1. Mouth Alcohol

Mouth alcohol refers to the traces of alcohol left in your mouth after taking an alcoholic beverage or using an alcohol-based product such as a mouthwash. Mouth alcohol gives the illusion that you may be intoxicated when you are not.

Since the breath testing equipment cannot distinguish between mouth breath and deep lung air, you will end up with a higher BAC than you actually have.  This is why it is important that police officers or DRE experts (drug recognition experts) follow Title 17 requirements and proper training when administering breath tests.  Waiting a minimum of 15 minutes while ensuring the driver has not burped, regurgitated, smoked or had anything in his or her mouth is one way to reduce the chance of mouth alcohol contaminating a test.  Some breath testing devices may have built in ways to determine if mouth alcohol is present.  But ultimately, no test is perfect and there is always some chance of contamination. Many officers fail to follow proper protocol which also leads to false positives,

You can have mouth alcohol from burping, vomiting, food in mouth, GERD (gastroesphageal reflux disease), keto diet, periodontal disease, severe acid reflux, to name a few.  You can use the defense if the officer failed to observe you for the required time, and you had mouth alcohol. 

2. Failure to Comply with Title 17 Regulations

Title 17 regulations are laws that guide the collection, handling, storage, and testing of breath, urine, and blood samples. These regulations aim at ensuring accuracy to prevent wrongful prosecution.

Mistakes in handling the test samples can lead to exaggerated BAC levels or damage to the sample. Such mistakes can also affect the prosecution of DUI offenders. Some of these regulations include:

  • An authorized technician must draw the blood for a blood sample
  • The technician should not use an alcohol-based agent to sterilize the draw site or any materials used in testing for the alcohol content
  • The blood vial must have enough preservative and anticoagulant to preserve the blood sample which should be mixed sufficiently with the sample
  • The blood vial must not be expired
  • The blood sample must be stored properly
  • The breath sample must be from deep lung air
  • The officer must observe you for at least 15 minutes before taking a breath test
  • You should not eat, smoke, drink, burp or vomit during the observation period
  • The breath device must be calibrated either after 150 uses or every ten days as applicable
  • For a urine sample, the person submitting the sample must first empty his or her bladder, then provide a sample about twenty minutes later
  • The technician must collect sufficient sample and store it for one year

When these regulations are ignored, then the risk of inaccurate results increases. If you can successfully show or demonstrate it is questionable that the officer failed to observe one or more of these regulations, the prosecution may be more inclined to reduce or dismiss a charge without going to trial. However, your attorney will decide whether it’s in his or her client’s interest to share such evidence that is damaging to the government’s case, or save it for trial.   

3. Failure to observe the 15-minute Observation Period

The fifteen-minute rule applies to evidentiary tests that are taken after a DUI arrest. During this period, the officer has to ensure that you do not: eat, drink, smoke, use a breath spray, regurgitate, burp, or vomit. These actions will introduce alcohol into your mouth, leading to a false BAC reading.

The fifteen-minute observation period is one of the rules under Title 17. The period allows for the most accurate test by lessoning the chances for instances of mouth alcohol. Alcohol takes time to fully dissipate from the mouth. Therefore, the observation period allows the mouth alcohol to dissipate for a more accurate test.

Most officers fail to observe this period by engaging in other activities or are distracted by phones. 

4. Lack of Probable Cause

The police must have reasonable suspicion to stop you and investigate, and probable cause to arrest you. This standard of justification must exist before an officer can investigate or arrest you for a DUI offense.

An officer is justified to stop you if he or she has a reasonable suspicion that you are breaking or are about to violate a traffic regulation. He or she can establish a reasonable suspicion if you were driving erratically or your car had any problem such as a broken tail light  (anything that violates the vehicle code).

The officer must also have probable cause to start investigating a DUI. Some of the reasons he or she can begin the investigation include showing physical signs of intoxication.

If the officer cannot justify the reason for stopping you or investigate a DUI, your attorney can file a motion to suppress the evidence pursuant to Penal Code section 1538.5.

Often you can file a motion to suppress evidence. This means that if the officer had no probable cause to investigate a DUI, the prosecution could not use the evidence from the DUI investigation.

5. Unreliable Field Sobriety Tests

Field sobriety tests are not accurate indicators of intoxication or impairment. They depend on various factors to be accurate, and even then, they are not 100% accurate. Most tests have an accuracy level of about 65-81%, but that is only when conducted under NHTSA standards.  Even more troubling, the tests done to determine how accurate police conducted FSTs are, showed an unacceptable false positive rate of, at times, 91 percent!! This means in some cases, officers believed most of the people he or she tested who had no alcohol or less than the required BAC, were actually over the limit and should be arrested.  So the FSTs are far from scientifically reliable and in reality are totally unreliable.

In 1981, the National Highway Traffic Safety Association (NHTSA) conducted a second test (after an initial test showed an embarrassingly high error rate) for FSTs to determine the success of police providing these tests to determine whether an individual was over a specified BAC.  (They used a BAC of .10.)  The results were not very good.

The tests that NHTSA sponsored revealed that the one-leg stand test had an accuracy of 65 percent, the HGN test had an accuracy of 77 percent, the Walk and Turn test showed a 68 percent accuracy, and the combined accuracy when utilizing all three tests was 81 percent.  However, these assume an officer explains and scores the test exactly as instructed and that the person doing the test is performing under optimal conditions. Of course, in the real world this rarely happens. An accused’s specific health issues is not addressed either.

A person might fail his or her sobriety tests due to several reasons, including:

  • Fear of the police officer or nervousness
  • Weather conditions
  • Poor lighting which hinders visibility
  • Uneven road conditions
  • Awkward clothing and footwear

Other factors, such as age, gender, and fatigue, and health can affect the accuracy of these tests. Your attorney will challenge the accuracy of these tests in judging impairment.

6. Unlawful DUI Checkpoint

The constitution protects you from an illegal search and seizure. This includes an officer stopping your car to conduct an investigation without reasonable suspicion that you committed a specific crime. However, DUI checkpoints are exempt from this requirement. However, they must meet strict regulatory requirements to make the arrests legal.

Some of these requirements include:

  • The supervising officer must make all decisions regarding the location, time and operation of a DUI checkpoint
  • The officers at the checkpoint must use a neutral mathematical criterion to stop cars. The officers cannot stop you based on the model of the car or based on your ethnicity.
  • The checkpoint must be in a reasonable location (mostly in an area with a high record of DUI accidents and arrests)
  • The supervising officer must take reasonable precautions to ensure that the checkpoint is safe (for example, the checkpoint must be visible by oncoming drivers)
  • The checkpoint should be set during a reasonable time and duration
  • The checkpoint must have indicators of its official nature including warning signs, flashing lights, and marked police cars
  • The driver should be detained for the shortest time possible – if he or she does not display any signs of intoxication, he or she should be allowed to continue driving
  • Law enforcement must publicly advertise the checkpoint in advance

If the sobriety checkpoint fails to meet these standards, then your defense attorney will use the defense to challenge the charges.

7. Rising BAC

Driving while impaired is a crime in California. However, you are not prohibited from drinking before driving, as long as you are not impaired and not over the legal limit. Impairment means that you were impaired to an appreciable degree, so that you cannot operate the vehicle as a sober person would in similar circumstances. California sets the impairment limit at .08% but commercial drivers are forbidden to drive with a .04% Bac or higher.

The defense of rising blood alcohol uses the science that alcohol continues to rise even after you stop drinking. Usually, (for most but not all people) alcohol takes between 30 minutes and two hours to be fully absorbed into the bloodstream. This means that you could have a higher BAC at the station than you had while driving.

The time it takes the body to absorb the alcohol fully depends on factors such as:

  • Whether you were on an empty stomach when drinking
  • The type of drink
  • The speed with which you consumed the drink
  • Your gender
  • Whether you are on other medications
  • Certain Illness

At a DMV hearing, proving that your blood alcohol was rising at the time of the test might require the testimony of an expert witness. The forensic toxicologist will evaluate you and other factors to determine your BAC timeline. This timeline can provide an estimation of your BAC level at the time you were driving.  Or, a toxicologist or criminalist may be able to testify that you were still in the absorption stage at the time of driving.  

Rising blood alcohol is an important defense if your BAC is close to the legal limit, and you were close to your destination.

8. Blood Test Errors

Blood tests can also plagued by errors, including those arising out of Title 17 violations. Some of these errors arise due to:

  • Contamination of the blood sample
  • Testing the wrong sample
  • Fermentation of the sample

Your attorney can identify possible errors in a blood test by making a blood split motion. He or she will take a sample of the blood and have independent testing done.  Getting a blood split done is NOT always a good idea to do in every case.  Sometimes a re-test by the defense can backfire and give a prosecutor more information they may use to make the sample appear even more accurate than it is.   Of course, the test can reveal errors, including contamination, fermentation, and issues regarding the storage conditions of the blood sample.  Your attorney may also subpoena the blood packet from the crime lab that will include chromatographs and information of whom at the lab handled and tested your blood.  The error rate of the test, notes from the technician, and other information will be included in the “packet.”

Since blood tests are a major foundation of DUI cases, errors in the testing can increase the likelihood of obtaining a dismissal, acquittal, or reduced charges.

9. Errors in the Breath Testing Equipment

The precision of breath testing equipment plays a great role in the accuracy of the results. However, if the equipment has errors, it can lead to exaggerated results. Some of the common errors include:

  • Malfunctioning instruments
  • Improper handling
  • Physiological conditions
  • Environmental factors such as interference from radiofrequency waves

Ultimately, the outcome of your DUI case will depend on several factors, including:

  • The knowledge, skill, and experience of your attorney,
  • The facts and circumstances of your case which, of course, includes the evidence,
  • The mitigating and aggravating circumstances in your case
  • The disposition of the prosecutor or district attorney handling the case,
  • The judge, and if you go to trial, the jurors,

However, you can increase your odds of fighting these charges successfully by hiring an attorney as soon as possible. Your attorney does more than just present evidence in court. He or she will investigate the case, question witnesses, and examine the various perspectives in the case.

With thorough research and sometimes expert testimony, your attorney can provide the best possible defense to get a charge reduction, dismissal, or acquittal.

Second DUI Penalties

The second DUI offense is a misdemeanor offense if the driver does not have a felony prior and did not cause serious injury or death. The penalties for the offense (as a misdemeanor second DUI) include:

  • A minimum of 96 hours and a maximum of one year in county jail
  • Misdemeanor probation
  • A fine ranging between $390-$1000
  • License suspension for up to two years, if you are a commercial driver, you will lose your commercial driver’s license for life. You can install an IID for one year to retain your driving privileges.
  • Mandatory DUI school attendance for 18 to 30 months
  • The requirement to attend AA or MADD programs depending upon the case
  • Community labor depending upon the negotiation with the prosecutor or court

The penalties can also increase if your case has aggravating factors such as:

  • You had a BAC exceeding .15%
  • You refused to submit a chemical breath test
  • You caused an accident
  • You were driving at excessive speed
  • You committed the offense with a minor (of under 14 years) in the car
  • You were under the age of 21 at the time of the offense

A second DUI offense could be charged as a felony if you were convicted for a felony on the first offense or If your second DUI involved injuries or death as a result of an accident caused by you. The penalties for a felony DUI are stiffer compared to those of a misdemeanor DUI. A felony DUI conviction could result in a state prison sentence.

Even after a conviction, your attorney can negotiate for probation terms but some terms are mandatory.  If you are awarded probation, you must adhere to several conditions including:

  • You will be on probation for three to five years
  • You should not commit any crime while on probation
  • You agree to submit DUI breath or blood tests should you be arrested for a DUI in the future
  • You should not drive with a detectable amount of alcohol in your system (California applies zero-tolerance laws if you are on probation for a DUI offense or under the age of 21)
  • You must install an IID to drive anywhere
  • You must acquire a valid SR22 policy with your insurance
  • You must pay restitution to any victims, if applicable
  • You must enroll in a DUI School
  • You must pay all the court-ordered fines
  • You must do a minimum of 96 hours in county or private jail (home detention or residential drug or alcohol rehab may be an option instead of jail)

The court expects you to adhere to these conditions. If you do not, then you could face penalties for violating the probation conditions. Should this occur a probation violation hearing may be ordered.  Your attorney can sometimes avoid additional punishment and get you back on probation under the same terms, but the outcome of a probation violation depends upon the facts of the case and the lawyer’s ability to convince the judge.  The maximum penalty you can receive for a probation violation would be the maximum sentence in the case (usually one year county jail on a misdemeanor second time DUI).

Find a DUI Attorney Near Me

Fighting DUI charges on your own can be a challenging task and is NEVER recommended. It takes years of education and experience to properly handle a criminal case such as a DUI.  Even lawyers know that they should never represent themselves.  The old saying is “Any lawyer who represents him or herself has a fool for a client”!

A second time DUI offense has life-changing consequences. But you don’t have to go through this frightening and stressful time alone.  Having a knowledgeable and compassionate DUI lawyer like Ann Gottesman can make the experience much easier.

The Law Offices of Ann Gottesman provides experienced DUI defense services to her clients. As a former deputy public defender, Ann Gottesman brings hands-on experience to your case. She understands the local DUI laws, the penalties, has a good rapport with the local prosecutors and judges, and knows the defenses you can use to fight the charges you are facing.

She will not only represent you during the court proceedings; but if you are convicted, she will work with you afterwards to ensure that you transition easily through your probation, DUI school, insurance issues, and will help you meet all of the DMV’s requirements.

Call Ann Gottesman for a free and confidential consultation at 626-710-4021.

Resources for DUI information in Los Angeles and Pasadena California

  1. DMV information on Ignition Interlock Device (IID) installation:

    https://www.dmv.ca.gov/portal/dmv/?1dmy&urile=wcm:path:/dmv_content_en/dmv/pubs/brochures/fast_facts/ffdl31

  2. DUI lawyers in Los Angeles County who are members of California DUI Lawyers’ Association (Ann Gottesman is a participating member)

    https://www.california-dui-lawyers.org/find-a-lawyer?stype=mapsearch&county=19

  3. Pasadena Police Dept Traffic Section

    https://www.cityofpasadena.net/police/divisions-and-sections/criminal-investigation/traffic/

  4. DUI Class List Updated 2020

    http://publichealth.lacounty.gov/sapc/cjp/DUI/DUIProgram.pdf

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