DUI with a Prior: 2nd Misdemeanor DUI

For Illustration Only. No Crimes Committed.

LOS ANGELES SECOND DUI LAWYER
Just as with a first DUI, a second California DUI arrest (within 10 years of the first) will give rise to two separate proceedings: an Administrative Sanction from the DMV and a Criminal Case in a County Superior Court.

The DMV Administrative Per Se (APS) process is fairly similar.  You have 10 days from the date of arrest to request a DMV hearing to save your license.  Otherwise, your license will be suspended 30 days after your arrest.  Unlike the 4 month suspension associated with a first DUI, the administrative suspension on a second DUI is a 1-2 year suspension.  Also, while a first DUI suspension permits a driver to obtain a restricted license (to drive to work and to DUI classes) after a 30 day "hard suspension" a driver must wait 90 days before becoming eligible for a restricted license after a 90 day "hard suspension" period.  Further, getting a restricted license after a second DUI requires installation of an Ignition Interlock Device (IID).  In Los Angeles County, a "pilot county" for IID requirements, an IID will be required even after a first DUI.  This makes the DMV hearing that much more important for repeat DUIs.  A California DUI attorney can help you save your license if the police lacked probable cause for your DUI arrest or cannot establish that your BAC was above .08 at the time of driving.

In Superior Court, the criminal penalties for a second DUI arrest (within 10 years of a prior DUI arrest).  A second DUI carries more significant penalties and may be charged even if the first DUI was reduced to a "wet reckless".  A second DUI carries mandatory jail time (minimum of 96 hours/4 days, up to one year) and fines.  According to Los Angeles DUI Lawyer Jon Straub, prosecutors seek an average of 45 days in jail for a 2nd offense DUI.  It is often possible to convert some of the jail time to community labor, community service, house arrest, alcohol monitoring (SCRAM bracelet) or work release.  In addition, a second DUI may include a longer probation period (up to 5 years) and will require enrollment in and completion of a more intensive 18-month DUI school.

Second DUIs are misdemeanors unless there was an injury to someone other than the defendant.  For DUI's causing injury, it is up to the DA whether to file as a felony or a misdemeanor.  Having a prior DUI virtually guarantees that the District Attorney would choose to file a DUI causing injury as a felony. 

EXAMPLE:
Sam is driving from Hollywood on the 101 North towards his home in Studio City, when he is pulled over by CHP for speeding.  Two years prior, Sam had been arrested for DUI, after driving home from a Fourth of July party, where he had been drinking.  In that case, his attorney was able to negotiate a reduction from DUI to a "wet reckless" helping Sam avoid a suspension of his driver's license and Los Angeles' Ignition Interlock Device (IID) requirement for first time DUI offenders.  Sam has taken the case seriously and does not drink and drive anymore.

Sam is also prescribed Xanax.  Upon contact, the CHP officer does not smell alcohol, but suspects that Sam is under the influence of alcohol.  The officer asks Sam to perform a series of field sobriety tests, and those test show Sam has poor balance.  Sam is asked to provide a breath sample into a handheld breathalyzer known as a "PAS" or "Preliminary Alcohol Screening" device.  The PAS yields a reading of 0.00, because Sam had not been drinking.  The officer asks Sam whether he'd taken any drugs or medications.  Sam stated to the officer that he had taken Xanax, as prescribed by his doctor.  Sam is arrested for DUI and asked to give a blood sample.  While Sam would have had every right to refuse the field sobriety tests and the PAS device, he had to submit to the blood test to avoid a 1 year driver's license suspension s charged with a second DUI in Los Angeles Superior Court (Metropolitan Courthouse).  The prior wet reckless is alleged as a prior DUI. 

This is a common scenario.  While a prescription for drugs like Xanax will protect a patient from criminal drug charges, a prescription does not provide immunity from prosecution for DUI.  At some levels, Xanax, Valium, Percocet and other drugs can impair a person's ability to drive.  Even if not warned, driving while impaired by prescription drugs is just as much of a crime as driving after drinking too much alcohol.

Sam's Hollywood Criminal Defense Attorney can raise some important defenses on Sam's behalf.  First, there is no set, legal limit with drugs other than alcohol.  This means that the prosecutor must prove more than the presence of some level of the drug, but must actually prove that the level impaired Sam's ability to safely operate a motor vehicle.  Xanax is a difficult drug to detect the effects of (only certified Drug Recognition Experts may say that they observed symptoms of drug impairment) and also is a fast tolerance building drug.  The defense can consult with and call as witnesses, toxicology and pharmacology experts who can help explain these facts.  Sam's primary care physician can help to explain any conditions Sam has that have the potential to disrupt his balance. 

Avoiding the second DUI is very important.  While still a misdemeanor, a second DUI conviction can have very serious consequences, including mandatory jail time and a one year driver's license suspension.  Contact a Los Angeles DUI Lawyer now for a free consultation.

IMPORTANT LINKS:
LA Sheriff's Inmate Locator 
Los Angeles Superior Court  
Los Angeles Police Department
Los Angeles Misdemeanor Bail Schedule

Nicholas M. Loncar, Esq. 
Los Angeles Criminal Defense Attorney
t: 213-375-3775 | f: 213-375-3099
Mobile: 323-803-4352 
NL@iDefendLosAngeles.com
1200 Wilshire Blvd | Suite 406
Los Angeles, CA | 90017
www.iDefendLosAngeles.com


By Nicholas Loncar

---