If you have been arrested for your second-time DUI offense in Los Angeles, you will most likely be charged with a violation of California Vehicle Code Section 23152 which states:
(a) It is unlawful for a person who is under the influence
of any alcoholic beverage to drive a vehicle.
(b) It is unlawful for a person who has 0.08 percent or more, by
weight, of alcohol in his or her blood to drive a vehicle.
DUIs in California are “priorable” which means that a DUI conviction within ten years of a prior DUI (or “Wet-Reckless”) will be treated with increased penalties. If your second DUI falls outside of the ten year window, you cannot be convicted of a second-time DUI and your case will fall under first-time DUI guidelines.
If you are convicted of a second-time DUI in Los Angeles County, you will face following punishment:
- 3-5 years of summary/informal probation,
- 96 hours to one year in county jail,
- $390-$1000 fine plus penalties and assessments (for example: a fine of $390 plus penalties and assessments will add up to approximately $2,000) (*This fine may be converted to community labor/service or county jail*)
- 18-month (SB 1344) DUI program, and
- Two year driver license suspension (*option for restricted license after 90 days*.)
Aggravating circumstances such as a .15 or greater BAC, an accident, refusal, excessive speed, etc. will increase the likelihood of increased punishment of the requirements listed above, such as lengthier jail time and DUI programs and completion of Mother’s Against Drunk Driving (MADD)/Victim Impact Panel (VIP) or AA (Alcoholics Anonymous) meetings.
However, a DUI attorney experienced in Los Angeles County courthouses can fight your case with the following defenses to minimize your punishment and ensure that you are not punished for something you didn’t do.
Just because you have been arrested and charged with a second-time DUI does not mean you are guilty of a DUI. Furthermore, the fact that you have a prior DUI conviction is not relevant to specific facts of your current matter.
The prosecution must prove their case beyond a reasonable doubt and many problems may exist in your case that show the basis of your charges to be untrue, including the following:
Inaccurate Breath Tests: Your BAC (Blood Alcohol Content) reading may be inaccurate due to several factors including improperly calibrated/malfunctioning breath test machines, improperly handled breath testing procedures, residual mouth alcohol caused by medical conditions such as GERD (Gastroesophageal Reflux Disease), LPR (Laryngophryngeal Reflux) or foreign objects and/or other Title 17 violations.
Your breath test must be scientifically reliable, and the existence of any of these circumstances in your case may compromise the accuracy of your alleged BAC.
Inaccurate Blood Tests: The accuracy of your blood test for alcohol is dependent on the quality assurance of the people and facility that administered your test. Any deviation from from strict protocols when your blood was drawn, transported and tested severely compromises the accuracy of your test.
Blood testing problems include contaminated blood samples from improper blood draws and improper storage, switched out blood samples due to carelessness and/or a lack of chain of custody of your blood sample, improperly calibrated blood testing machines and/or other Title 17 violations.
The state/city’s crime lab must also retain a sample of your blood that you can send to an independent laboratory for testing.
Just as with a breath test, your blood test must be scientifically reliable, and the existence of any of these circumstances in your case may compromise the accuracy of your alleged BAC.
Rising Blood Alcohol Level: It is unlawful to drive with a BAC of .08 or greater when you are actually driving, not before or after you were driving. However, if you do not take a PAS (Preliminary Alcohol Screening) test, your first blood or breath test will often occur over an hour after you were stopped or alleged to be driving.
Consequently, if your blood alcohol level absorption had not peaked (i.e. your blood alcohol level was still rising) when you were driving, you might have actually reached your .08 or greater BAC after you were driving which would mean you are actually INNOCENT.
Vehicle Code Section 23152 states:
It is a rebuttable presumption that the person had a .08 percent or more, by weight of alcohol in his or her blood at the time of driving the vehicle if the person had .08 or more, by weight, of alcohol in his or her blood at the time of performance of the chemical test within three hours after the driving.
Evidence that your blood alcohol was rising can successfully rebut this presumption.
No Driving: In order to convict you of driving under the influence, the prosecution must prove that you were the driver and that you were actually driving. In order to prove that you were driving, the prosecutor must show that you intentionally caused the vehicle to move by exercising actual physical control over it. (See CALCRIM 2241 and Mercer v. Department of Motor Vehicles (1991) 53 Cal. 3d. 753, 763-765.)
In cases with a routine traffic stop, this is usually not an issue because the officer may have personally observed you driving. However, if the police or witnesses first observed you in your parked car or after an accident occurred, the driving element may be a major issue, as the prosecution will have to look for circumstantial evidence to prove if and when you were driving.
Many people make the safe and responsible decision to sleep in their car instead of driving, only to wake up to an officer knocking on their window looking for a DUI arrest. However evidence that your car never moved can successfully combat those allegations.
Illegal Stops and Arrests: The Fourth Amendment of the United States Constitution protects you against unreasonable searches and seizures. For the purpose of a DUI, this means that an officer cannot pull you over without a reasonable suspicion of a traffic violation, i.e. an officer must have reason to believe a traffic violation was committed by you.
After the officer pulls you over he cannot then turn the stop into a more-lengthy DUI investigation without further reasonable suspicion to do so, i.e. specific observations of your potential intoxication such as the smell of alcohol from your breath or car, bloodshot and watery eyes, slurred speech, an open container of alcohol in your car, etc.
After the DUI investigation concludes, the officer cannot then arrest you for a DUI without probable cause. Probable cause requires the officer to have specific facts to show that you likely were under the influence of alcohol rather than a mere suspicion. This usually takes into account the “totality of the circumstances” including your driving, initial observations of the officer, admissions of drinking, performance on field sobriety tests, etc.
If any of these steps were not followed, your stop and/or arrest may be have been illegal.
Example: You are driving home on the 101 N on Saturday night around 2 a.m. A CHP officer pulls you over and informs you the reason for his stop is that your right-rear brake light is out. The officer then immediately goes into a DUI investigation which you are eventually arrested for and charged with.
The next day when you get your vehicle back, you check your brake lights and notice they are all working properly. However, in the police report the officer restates that he pulled you over because of your broken brake light. Your attorney orders the MVARS dash-cam video of your stop which confirms that your brake lights were in fact operating correctly, and the officer is now caught in a lie.
You are now entitled to challenge the stop and subsequent DUI investigation as a violation of your 4th Amendment rights through a Penal Code 1538.5 motion. If successful, all evidence obtained after the illegal stop will be suppressed and your case will be dismissed, regardless of your BAC.
Unlawful Sobriety Checkpoints: Sobriety/DUI checkpoints are an exception to the 4th amendment requirement of probable cause or reasonable suspicion for a traffic stop. However to fall under this exception law enforcement must follow these guidelines when setting up a checkpoint:
- Decisions and operations must be made by law enforcement supervisors,
- Criteria for stopping vehicles must be neutral and not by individual discretion of officers,
- Must be operated with sufficient safety conditions,
- Must be at a reasonable location,
- Must have reasonable time and duration,
- Must have the indicia (distinctive marks) of an official roadblock,
- Must have minimized amount of detainment for drivers; and
- Must be publicized in advance.
(See California Supreme Court case Ingersoll v. Palmer (1987) 43 Cal. 3d. 1321.)
If you were stopped in a checkpoint and law enforcement failed to follow any one of these steps, you are entitled to challenge the stop as a violation of your 4th Amendment rights. If successful, all evidence obtained after the illegal stop will be suppressed and your case will be dismissed, regardless of your BAC.