If you face allegations for driving under the influence of alcohol or a drug for the second time within 10 years, you face all of the challenges of a first DUI, but with heightened punishment. But all is not lost. There are several ways to reduce your punishment or get a dismissal of your DUI case. First, you have to understand what you are facing. Let’s start by understanding DUIs generally.
DUI Prosecution in California
California Vehicle Code section 23152 and related sections criminalize driving under the influence of drugs or alcohol. A DUI charge prosecuted under section 23152 is a misdemeanor in California. However, if you injure someone as a result of your DUI, the DUI becomes a felony under Vehicle Code section 23153.
Sub-section A and B are the most commonly prosecuted types of misdemeanor DUI. Section 23152(a) makes it illegal to operate a motor vehicle while “under the influence” of alcohol or a drug. 23152(b) makes it illegal to operate a motor vehicle with a Blood Alcohol Content level of 0.08% or higher.
For 23152(a) the prosecutor must prove:
1. You drove a vehicle; AND
2. You drove while under the influence of a drug or alcohol.
The second element in 23152(a) will require the prosecutor to show that you were under the influence of alcohol or a drug. So, the prosecutor needs to present evidence that you were intoxicated. This evidence usually comes from testimony from a person who saw you drinking, the arresting officer, and even other drivers who witnessed your driving.
For 23152(b), the prosecutor must prove that:
1. You drove a vehicle;AND
2. You did so while having a Blood Alcohol Content level of 0.08% or higher.
The second element of 23152(b) is actually much easier for the prosecutor to prove than the second element of 23152(a). In California, the chemical test determining Blood Alcohol Content creates a rebuttable presumption that you were under the influence. This means that you are presumed to be under the influence of alcohol if your Blood Alcohol Content is over 0.08% unless you can prove that you in fact were not under the influence.
Second DUI Violation within 10 years– VC 23540
If this is your second DUI conviction within 10 years, the only addition to the prosecutor’s burden of proof is that they must show the prior conviction. This is as easy as pulling up your record. The real effect of a second DUI is in the punishment.
Under California Vehicle Code section 23540, a second conviction is punished by:
• Imprisonment in county jail for up to one year;
• A fine of up to $1,000; and
• Your driver’s license will be suspended by the DMV for 2 years (Vehicle Code section 13352(a)(3)). Completion of a driving re-education course is required to get your driver’s license back (Vehicle code section 13352(a)(3) and section 23542).
The court will also likely impose other fines and penalties for your second DUI conviction within 10 years.
Moreover, if you cause injury to another person while driving under the influence, you may be convicted of violating California Vehicle Code section 23153, which is punishable by:
• Imprisonment in county jail for up to one year;
• A fine of up to $5000; and
• Your driver’s license will be suspended by the DMV for DMV for 3 years. (Vehicle Code section 13352(a)(4)). Completion of a driving re-education course is required to get your driver’s license back.
What can Wallin & Klarich do to help me?
Many people facing second DUI charges often think the evidence against them is overwhelmingly in the prosecutor’s favor. That is not always the case. There are many ways to attack a DUI charge. The experienced DUI defense attorneys at Wallin & Klarich are dedicated to getting you the best possible result for your case. Over the past 30 years, we have found several successful strategies.
Our first step in your DUI defense is always learning all of the circumstances of your case. There are many ways to attack the accuracy of the Blood Alcohol Content test-whether you took a breathalyzer or a blood test. For example, if the breathalyzer that the police officer used was not properly calibrated, then we may be able to dispute the accuracy of the breathalyzer test.
Along with trying to disprove the case against you, we will always try to find ways to mitigate your punishment. Under Vehicle Code sections 23542 and 23600, the court may place you on probation instead of a jail or prison sentence. We know that staying out of jail is important to you and we will fight for your freedom.
In addition, following your DUI arrest, the DMV may suspend your driver’s license. You only have 10 days after your arrest to request a DMV hearing to protest the suspension. If you miss this window to request a hearing, you waive your right to the DMV hearing and your driver’s license will be suspended. If you contact a Wallin & Klarich attorney today, we may be able to take the steps to prevent the DMV from suspending your driver’s license.
If you face a second DUI charge in Orange County, you need to contact the experienced DUI defense attorneys at Wallin & Klarich right away. We have over 30 years of experience successfully defending clients against DUI charges. Our offices are conveniently located in Orange County, Los Angeles, San Diego, Riverside, San Bernardino, Victorville, Ventura, West Covina, Torrance, and Sherman Oaks.
Call us today at (888) 280-6839. We will be there when you call.