A majority of California residents may never be put under arrest for DUI. However, some of them may be arrested or convicted for either first time DUI, second-time DUI, third time DUI, or even a fourth time DUI.
For many DUI repeat offenders, addiction to alcohol and drugs, probably caused by life challenges, may hinder them from driving soberly. This makes them face frequent DUI arrests, prosecutions, and convictions. As a result, their personal lives and those of their loved ones are grossly affected. Due to multiple DUI convictions, they may have to endure lengthy jail terms, pay hefty fines, as well as become locked out from accessing opportunities such as jobs and scholarships. However, not all DUI arrests will or must result in convictions! In some sense, the law is always on an accused’s side because the prosecution has the burden to prove their case beyond a reasonable doubt.
Contact me, attorney Ann Gottesman, if you or your loved one has been charged with 3rd time DUI in Pasadena or the surrounding Los Angeles area. Over the years, I have gathered experience in helping my DUI clients obtain positive results in their cases. In the worst-case scenario, I can often help with obtaining a mitigated sentence and sometimes there are alternatives to jail.
What is 3rd Time DUI?
DUI is considered a priorable offense in California. This means that the penalties for DUI increase with each subsequent charge, within a ten-year timeframe.
The California District Attorney’s Office or City Prosecutor office will charge you with 3rd time DUI if you have two prior DUI or DUI-related convictions where the arrests occurred within ten years of the current offense. The penalties for a 3rd time DUI are more severe when compared to those for the first time or second time DUI. Generally, a third time DUI is categorized as a misdemeanor unless you suffered a prior felony DUI conviction or your current DUI involves injuries.
What the Prosecution Must Prove for You to Receive a Conviction of 3rd Time DUI
For the court to convict you of 3rd time DUI, the prosecutor must show proof of the following elements to a jury (or in rare cases, a judge, if the case proceeds as a court trial):
- You had been driving
- You were intoxicated while driving and/or driving with a prohibited level of alcohol in your blood,
- You have two previous convictions involving DUI and the arrests occurred within ten years of the current DUI offense date
Below, I discuss these elements in greater detail:
The prosecutor should provide sufficient proof to show that you had been driving. You may think that this is quite straightforward, but the prosecution can find it challenging to prove this element in certain factual circumstance. The prosecution should adduce strong evidence showing that you operated the motor vehicle. Note that the degree of proof in California criminal cases is beyond a reasonable doubt.
For example, if you were found asleep in your car, is there enough circumstantial or direct evidence of when you were driving and that you were intoxicated while driving? Perhaps you consumed alcohol after parking? Maybe another person was driving? All reasonable doubt must be overcome in order for the prosecution to obtain a conviction.
Typically, prosecutors prove that you had been intoxicated by utilizing two methods:
- Demonstrating that you had been physically impaired
- Showing that your BAC was or exceeded 0.08%
Most prosecutors usually opt for the second method. Proving physical impairment can be difficult because the defense attorney can easily discredit the prosecution's evidence by providing reasonable explanations to the defendant's outward appearance and behavior. For instance, the defense attorney can claim that the defendant had insufficient sleep or had been crying, and that is why his/her eyes were red.
In some situations, the prosecutor may attempt to utilize the results of a field sobriety test to demonstrate to the jury that you were physically impaired. Your defense attorney can discredit the field sobriety test results by claiming that the arresting officer did not administer the test fairly, or it was carried out in a poor environment. There are scientific articles that’s demonstrate how unreliable such tests are and there is evidence showing that MOST police officers in the field do not even conduct these tests properly! A defense toxicologist and a FST expert (i.e., retired police officer or DRE) can educate the jury and be a valuable witness for the defense.
If you had taken a BAC chemical breath or blood test, the prosecutor will try to use the test results against you to prove that you were intoxicated. However, some BAC testing kits can indicate inaccurate results, and the court may not entirely rely on them. If you present evidence showing that the testing kits were not maintained in good condition, or the officers did not follow the stipulated procedures when conducting the tests, the court could s suppress the evidence which would make a dismissal or acquittal more likely.
3. Previous Convictions
For you to be convicted of 3rd time DUI, the prosecutor must illustrate that you have two prior DUI or DUI-related convictions within a period of ten years. These prior convictions may include the following:
- Vehicle Code 23152(a) Driving while under the influence of alcohol or drugs
- Vehicle Code 23152(b) Driving while having a BAC that is or exceeds 0.08%
- Vehicle Code 23152(e) A person holding a commercial CDL who is driving while having a BAC that is or above 0.04%
- Vehicle Code 23103 Wet Reckless
- Vehicle Code 23153 (a) or (b), etc..
- Any expunged DUI or DUI-related conviction
- An out-of-state DUI or DUI-related conviction if it qualifies as a prior in California.
- Other DUI charges
In some situations, the court may not consider an out-of-state DUI conviction as a past conviction if the criminal justice system of that state is quite different from the California criminal justice system. For example, some states only require the driver to be in control (sitting in driver seat with car on for example) but does not require the prosecutor to prove actual driving. In California, you must be shown to have been driving. Therefore, a DUI conviction in some states would not be considered a prior DUI under California DUI law. If the prosecutor is unable to show proof of any prior conviction, the prior will either not be filed or could be dismissed by the court. What could have been a felony (such as in a 4th DUI within ten years) could end up reverting to a misdemeanor DUI or a DUI with fewer priors.
The Penalties for 3rd Time DUI
If you have been charged with 3rd time DUI, you may probably be wondering how its punishments differ from those for 1st time or 2nd time DUI. Unfortunately, the penalties for third time DUIs are enhanced. What the court will punish you with varies depending on the facts of the case. There are specific punishments that you should expect if you have been convicted of 3rd time DUI. These punishments include:
- An informal probation term of between 3 – 5 years
- Revocation of your driver's license for up to three years (but you may be eligible for a restricted license immediately!)
- A county jail term of a minimum of 120 days, not exceeding one year
- A court order to mandatorily attend a DUI school for 18-30 months
- Installation of an IID in your vehicle for two years
- Fines and court-imposed penalty assessments that may range from $2,500 – $3,000
- Other terms of probation such as HAM (hospital and morgue program, additional AA meetings and community service or community labor) are negotiable.
Each county in California has its own standard sentence for third time DUI. For Los Angeles County, you will most likely receive the punishments listed above, and as mentioned above, the judge may impose additional penalties, including community service, attending A.A. meetings, or participating in additional alcohol or drug treatment programs.
Remember however, this is ONLY if you are convicted. While the DMV requirements are separate, you will not receive any jail or community labor if you are not convicted. Also, sometimes the court will allow a residential drug or alcohol program in lieu of jail. Home detention can also end up counting in lieu of jail.
If the judge imposes a probation term, you must observe the conditions listed below:
- You should not drive while having a BAC of 0.01% or higher
- You should not commit any additional crime
- You shouldn’t refuse to take a BAC test if a law enforcement officer arrests you for subsequent DUI
Also, in some situations, you may be ordered to pay restitution to the victim if you caused an accident or monetary damages while drunk driving.
How a 3rd Time DUI can Affect Your Driver’s License
If a police officer has arrested you for 3rd time DUI, you will receive a longer driver's license suspension period in comparison to the first time or second time DUI. However, you may still apply for a license restriction, which would allow you to drive an IID installed vehicle.
Your driver’s license can be suspended for 3rd time DUI via the following two methods:
- Losing the DMV hearing, OR
- Receiving a conviction in criminal court
The court will revoke your license for three years upon conviction of third time DUI. The license suspension period for the DMV is one year. If you lose the DMV hearing and also become convicted for 3rd time DUI, your license will be suspended for three years. However, you may be eligible for an ignition interlock restricted license that would allow you to drive anywhere at any time, as long as you only drive the vehicle with the IID installed. There is an exception for employer vehicles so you may be able to drive a company vehicle without the IID as long as your employer agrees, and you keep the proper DMV form in the vehicle.
The DMV would allow you to apply for a license restriction immediately if you didn’t refuse to take the BAC test. A restricted license will enable you to drive, but only if you accept to install an IID inside your vehicle for a minimum of 24 months. You will be personally responsible for the costs of the IID installation and maintenance.
If you had failed to submit to the BAC test, the DMV, if you lose the APS hearing, would subject you to harsher punishment. You would face a three-year driver’s license revocation period, and you wouldn’t be eligible for any form of a restricted license.
Habitual Traffic Offender Designation for 3rd Time DUI
If you have been arrested for a third time DUI, the California Department of Motor Vehicles can designate you as a habitual traffic offender (HTO). Also, the court can declare you as an HTO as part of your sentence upon conviction.
If you have been designated as a habitual traffic offender and you drive on a revoked or a suspended license, you may face criminal charges, as per VC 14601.3. According to VC 14601.3, a first-time HTO conviction may result in a county jail term of 30 days and a fine of $1,000. Any additional HTO conviction leads to an imprisonment term of 180 days and a fine of $2,000.
Aggravating Factors and 3rd Time DUI Penalties
Various aggravating factors can increase the penalties for 3rd time DUI. If these aggravating factors are present in your case, the Da or judge may want to lengthen your imprisonment term. But don’t forget: these additional punishments are negotiable, and only apply IF you are convicted. Even if you are convicted, a good lawyer may be able to avoid these for his or her client. These factors include the following:
- Having a BAC that is or exceeds 0.15%
- Speeding at a high rate
- Refusing to submit to a BAC chemical breath or blood test
- Being below 21 years old when committing DUI as a third offense
- Having a child inside your car who is less than 14 years old
- Causing a road accident
- Causing minor injury (major injury results in felony DUI filing)
The judge can enhance your imprisonment sentence as per the unique facts pertinent to your case. It is difficult to avoid jail time upon being convicted of 3rd time DUI with an aggravating factor.
Alternative Sentencing Options for 3rd Time DUI
Your attorney can help you pursue alternative sentencing options upon conviction for 3rd time DUI. This is especially in situations where you prove that you are struggling to fight an addiction of drugs and alcohol, and imprisonment may not be helpful to you in the long run.
Alternative sentencing options are customarily geared toward rehabilitation. If you obtain an alternative sentence, you may be able to maintain your employment (usually after a short period of strict residential treatment), attend treatment, and completely focus on rebuilding your life. Home detention, where an ankle monitor is fitted on your ankle, is also an option. Most of the time if you receive home detention you will be able to go to work and take care of your most important errands but will have to be home by a specified hour (a curfew).
Many attorneys may not be aware of these alternative sentencing options. Some may know they exist, but they don’t know how to make the judge agree to them. Sometimes a client may even be able to get home detention without the court’s approval. This is why you must hire a competent DUI defense attorney who is well-versed with these alternative sentencing options.
Some examples of alternative sentencing options in California include community service, probation, substance, and alcohol abuse rehabilitation and treatment, and electronic monitoring. Let us discuss each of them comprehensively:
The court can sentence you to a probation term as part of your DUI punishments, or as an alternative sentencing option. During probation, you will be expected to adhere to certain conditions. The probation period may vary depending on the facts and circumstances of your case.
There are two types of probation: formal probation and informal probation. Formal probation is supervised, and you will have to maintain contact with a local probation officer regularly. On the other hand, you won't be required to frequently report to a probation officer if you are subjected to informal probation. The judge can sentence you to probation in combination with other sentencing terms, such as community service and substance abuse rehabilitation and treatment. Most third time DUI’s are misdemeanor cases, for which informal probation is granted.
2. Community Service
Community service is a popular sentencing alternative to hefty fines and jail terms, especially for misdemeanor DUI offenders. It will be a requirement for you to regularly report to a court official for him/her to log in to your work hours, which will be proof that you are serving your sentence.
However, it can be quite challenging for a convict of 3rd time DUI to receive community service or labor as a punishment instead of jail time since the statute requires a mandatory minimum of 120 days in county jail. (However, home detention (with or without SCRAM device) and inpatient residential treatment can be offered in lieu of actual jail time. Unfortunately, a jail sentence cannot legally be “stayed” by the judge.) Yet, in most cases, 3rd time DUI convicts are given an option to choose between community service or labor and a hefty fine. Therefore, community service/ labor can be a sentencing alternative to avoid paying a significant amount of money as court-imposed fines and penalty assessments. Court fine and fees can also be converted to a few days of jail time.
In the worst-case scenario, the judge may issue a community service or labor order to a third time DUI convicts in addition to jail time. Make sure you consult your lawyer since anything above the statutory minimum requirements are negotiable.
The period for community service or community labor may be an amount decided by the judge or negotiated between your lawyer and the handling prosecutor or district attorney. Community service comes in various forms, and you should choose an organization which the court approves. In most instances, the court will refer you to a specialized office that will handle your referral to a local community labor or service place. While you will have some choice of where you go, you will have to attend one of the court approved locations on the list. Some examples of organizations that the court may select for you include the California Department of Transportation, a local Goodwill or thrift shop, or city park.
At least in Los Angeles County, community service is typically “easier” work since you are usually indoors at a thrift shop, food bank or animal shelter. Community labor involves cleaning parks or picking up trash in the streets.
3. Electronic Monitoring
In electronic monitoring, tracking devices are utilized by law enforcement to restrict the movement of an individual. If you are given the option of electronic monitoring instead of jail time upon conviction for 3rd time DUI, you may be issued with a device called Secure Continuous Remote Alcohol Monitor (SCRAM). This device will be affixed to your ankle, and its primary purpose is to measure your BAC continuously. There is also a tracking device that can monitor your location since you will have a curfew, but you may still be allowed to go to work.
SCRAM works the same way as a movement tracking device. It detects any amount of alcohol present in your bloodstream. If you drink alcohol, the device will quickly send a notification to the SCRAM operator and usually the court. Then, the judge may subject you to punishment for violating the electronic monitoring conditions. A violation of probation may lead to additional jail or other punishment.
Some people may refer to electronic monitoring as ‘house arrest.’ However, electronic monitoring may or not literally be “house arrest”, since you may still be able to travel in your city, county or state for specified purposes such as for employment.
Additionally, the court may also require you to install an ignition interlock device inside your car as one of the conditions of probation. But if you lost the DMV hearing and want to drive, you would have to install the IID anyway. The main aim of an IID is to prevent you from driving after drinking alcohol. An IID works the same way as a BAC chemical breath test, which you will have to take and pass before starting your car and at certain times while driving. (Ironically, having drivers blow into these machines while traveling at 65 miles per hour on a freeway could constitute its own dangerous driving behavior!)
4. Alcohol and Drug Abuse Rehabilitation and Treatment
Your attorney can help you obtain this sentencing alternative if you believe that you have an alcohol or drug addiction problem. Usually, it is repeated DUI offenders whom the judge issues this sentencing option.
Also, a fairly new law now allows DUI defendants suffering from a mental health issue and for whom their DUI was caused in part to that mental health condition, to submit a mental health diversion motion under Penal Code section 1001.36. If the judge grants the motion, you will be able to earn a FULL dismissal after a period of time not exceeding 18 months. Make sure your attorney is aware of the new criminal and DUI laws that have been implemented and have taken effect over the past one to several years. Military Diversion is also an option for some veterans or those currently in the military.
A DUI suspect may voluntarily opt to participate in a drug and alcohol abuse treatment program before ever being ordered to do one. If you do so, this may help your lawyer assure the judge of your commitment to solve your addiction problems and not engage in future behavior that is dangerous to those in your community. Starting a program before the fist court date (the arraignment), in some cases, may be the difference between the judge issuing bail and allowing the accused to stay out of jail on his or her own recognizance during the pendency of the case. It may also assist your attorney in securing a more lenient offer if and when the client is sentenced.
There are alcohol and drug abuse rehabilitation and treatment programs in Los Angeles. Each program is unique, and you should select one that suits your needs. These programs may be in the form of either outpatient or inpatient treatment. Generally, outpatient treatment is less intensive when compared to inpatient treatment. You can also decide to attend Alcoholics Anonymous (A.A.) meetings as well as the MADD Victim Impact Program. Most DUI lawyers will have a copy of the court’s list of approved DUI classes and a number of rehab programs in their area.
The Most Common Legal Defenses to 3rd Time DUI
For you to win your criminal jury trial, you must convince the jury that the prosecutor did NOT prove their case beyond a reasonable doubt. More accurately, it should be stated that the prosecution has the FULL BURDEN of proving each element of the offense beyond a reasonable doubt. YOU have NO duty to prove you are innocent or even that the prosecutor failed to prove the case. Of course, your lawyer will likely argue that the DA or prosecutor failed to produce sufficient evidence, but it is important to remember that the law requires the prosecution to prove their case and the defendant does not have to prove ANYTHING.
There may be reasonable doubt that you were intoxicated or that law enforcement followed the required procedures when arresting you or conducting the BAC or field sobriety tests. Perhaps the test result cannot be proven to be reliable or the sample was compromised. In some cases, the officer had no constitutional right to stop your vehicle or detain you to begin with. In such cases a good criminal lawyer will file a motion to suppress the evidence under Penal Code section 1538.5.
DUI arrests do not always result in convictions, especially if you have hired a competent and reliable defense attorney. But remember, the facts of the case also matter, so no attorney can promise a case will be dismissed or even that charges will be reduced. Every case is different, and while you can increase your chances of a successful outcome by hiring a competent and responsible DUI lawyer, there are never guarantees.
Here are the most common legal defenses to 3rd time DUI:
1. The Inaccuracy of Field Sobriety Test Results
Typically, the prosecution majorly relies on how you performed in a field sobriety test to prove that you had been drunk driving. Your attorney can challenge the test results in various ways.
For instance, he/she may hire an expert to convince the court that several issues affected your performance in the test, including wearing raised shoes, feeling fatigued, nervousness, sloped area, or even your clothing. Your attorney may adduce evidence showing that the test was carried out in a poor environment.
2. Residual Mouth Alcohol or unreliable test
Residual mouth alcohol can result in a falsely high test result. Before a law enforcement officer administers to you the BAC chemical breath test, he/she must first observe you for at least 15 minutes, to ensure that you don’t take any alcoholic substance, including medicines and mouthwash. He/she must also ensure that you don’t regurgitate, belch, or burp.
If the law enforcement officer fails to observe you for the specified time, then you have a good defense ground. In such a situation, your lawyer may be able to convince the court that the test result is not reliable. Although any failures to follow Title 17 rules will not necessarily result in the evidence being suppressed, it could be a helpful issue with respect to showing a jury why the test result should not be given much weight in their analysis. If the attorney can demonstrate that the test results fails the “Adam’s test”, and is not scientifically reliable, then a judge may grant a defense lawyers motion to exclude the alcohol or drug test results.
3. Improper Administration of Blood Tests and Foundation for Admissibility
Law enforcement officers should strictly adhere to the California Code of Regulations Title 17 when carrying out a blood or breath test. Often times they do not. For example, the test should be carried out by a qualified medical professional, and the blood sample should be properly collected, handled, and stored. As mentioned previously, while Title 17 compliance is not required, any deviance could help the defense, and if the prosecution cannot demonstrate the test is reliable, then a judge could order the evidence suppressed (not admissible).
As articulated by the California Supreme court in People v. Williams (2002) 28 Cal.4th 408 at 414 and 417, the prosecution must “demonstrate that correct scientific procedures were used in a particular case.” Admissibility depends on the reliability and the consequent relevance of the evidence.
The Williams court found that if Title 17 requirements were met, that indicates that the test is scientifically reliable. However, if there is non-compliance, the government can still get the evidence admitted but only if they can “…qualify the personnel involved in the test, the accuracy of the equipment used, and the reliability of the method followed ….” People v. Williams, id. at 416.
There are also legal issues addressing how blood is collected and whether it was obtained using accepted medical practices (“AMP”). There are specific motions that an attorney can file that could lead to a blood test being suppressed if the prosecutor can not show AMP was followed.
4. Rising Blood Alcohol
It isn’t illegal to drink before you drive. What is unlawful is being physically impaired to an appreciable degree while driving. While drinking, your BAC starts rising to reach a maximum level. The period it takes for your blood alcohol content to get at to its peak can vary between people but is often between 30 minutes to 180 minutes. This scenario is referred to as ‘rising blood alcohol.’
A law enforcement officer may flag you down while your blood alcohol content is on the rise. In such a situation, the test results may be inaccurate if you are given a breath test during this absorption period. A breath test taken during absorption can significantly over-state your true blood alcohol level. This defense is most effective if your attorney hires an expert to prove that your BAC was rising at the time of the arrest and therefore, your BAC at the time of driving was likely under .08 percent. Also, even government hired toxicologists will admit they cannot use retrograde extrapolation to determine what a driver’s BAC was at the time of driving if the test was administered during the alcohol absorption period.
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