Law enforcement authorities take DUI criminal offenses seriously with the aim of reducing DUI-related accidents. If you get convicted of a DUI offense, you may spend a long time in jail or prison or part with a considerable sum of money as fines. However, you can only get convicted if you don’t have a defense that could convince the court to drop your charges.
If you are convicted of DUI and get arrested again for a subsequent DUI, the court will consider you a multiple DUI offender. In this case, you are likely to face harsher penalties than a first-time offender. We at the Foos Gavin Law Firm are here to help you fight your DUI criminal charges. We will help you build a robust defense strategy that can possibly help you win your case. Get in touch with us if you are facing multiple offense DUI charges in Sacramento.
A General Overview of DUI Criminal Charges
Driving under the influence of alcohol or drugs is unlawful. As a criminal offense, driving under the influence attracts lengthy imprisonment terms and huge fines as punishment.
Imagine driving along the streets of Sacramento, and a police officer suddenly flags you down. You will obviously have to stop; evading a police officer is illegal. The law enforcement officer suspects you to be under the influence of drugs or alcohol for some reasons not known to you. He/she subjects you to a field sobriety test or a BAC breath test. The police officer then claims that you have failed the test and arrests you for DUI. You find yourself facing a DUI criminal charge.
You will definitely do all it takes to fight the DUI criminal charge. However, unfortunately, you may lose your case, especially if you do not have a good defense strategy. This is why you should contact an experienced and skilled DUI defense attorney immediately after you find out that you have been charged with a DUI offense.
What is a Multiple Offense DUI?
In California, DUI is deemed to be a priorable offense. This means that its penalties increase after each subsequent DUI conviction. For instance, you will face more grievous penalties if you have a DUI conviction on your record and get another one. In such a situation, the first DUI offense you had been charged with will be a first-time DUI. The second DUI offense you have been charged with will be referred to as second-time DUI or multiple offense DUI.
Simply put, multiple offense DUI is a DUI charge after prior DUI convictions. Examples of multiple offense DUI criminal charges include second-time DUI, third-time DUI, and felony DUI.
As earlier stated, the Sacramento Law Enforcement Department takes DUI criminal charges very seriously, especially multiple offense DUI charges. If you or your loved one is facing a multiple offense DUI charge, it would be best to reach out to a Sacramento DUI defense attorney as soon as possible.
California Multiple Offense DUI Laws
Vehicle Code 23152 is California's primary DUI law. According to California Vehicle Code 23152(a), it is unlawful to drive while under the influence of alcohol. California Vehicle Code 23152(f) criminalizes driving while under the influence of drugs. California Vehicle Code 23152(b) states that driving with a BAC of 0.08% or higher is unlawful.
Remember, DUI is a priorable offense, and you will face more grievous penalties with each subsequent conviction. Also, note that you will face harsher penalties upon conviction if you injured or killed someone else while driving under the influence or if any other aggravating factors are present in your case.
What the Prosecutor Must Prove for you to be Convicted of Multiple Offense DUI
Just like any other criminal offense, there are certain elements that the prosecutor must prove for you to be convicted of multiple offense DUI. These elements include:
- You were driving
- You were under the influence of alcohol or drugs
- You have a prior DUI conviction
Below, we discuss each of these elements briefly:
You were Driving
The prosecutor must prove that you were driving just before the police officer arrested you for DUI. The fact that you were not driving before being arrested for DUI may form the backbone of your defense strategy.
For instance, the police officer may have approached you and arrested you for DUI, yet you were just seated inside your car. If you have evidence showing that you were not driving, you stand a high chance of winning your case.
You were Under the Influence of Alcohol or Drugs
The prosecutor must prove that you were under the influence of alcohol or drugs. This element forms the crux of most DUI cases, and you can easily have your charges dismissed if there is evidence showing that you were not under the influence.
To prove this element, most prosecutors rely on the following:
- Your behavior and physical appearance when the police motioned you to pull over
- Your field sobriety test results
- Your BAC breath or blood test results
In California, the standard of proof in criminal cases is beyond a reasonable doubt. Most prosecutors do not reach this high standard, especially if you have a skilled defense attorney by your side to poke holes in their case. For instance, not all BAC or field sobriety test results are accurate.
You Have a Prior DUI Conviction
To be convicted of multiple offense DUI, the prosecutor must show that you have a prior DUI conviction. This can be easily ascertained from your criminal records.
The prior DUI conviction must be within ten years from your current conviction. Let's say you were convicted of DUI in early January 1990, and your subsequent DUI conviction is in December 2010. In such a situation, the 1990 DUI conviction does not count as a prior DUI conviction. Instead of multiple offense DUI, you will be convicted of a first-time DUI.
Note that expunged DUI convictions also count as prior DUI convictions. You cannot avoid a multiple offense DUI conviction by arguing that you had expunged your previous DUI conviction.
Penalties for Multiple Offense DUI
The penalties for multiple offense DUI vary depending on the number of prior DUI convictions and any other aggravating circumstances present in your case. Below, we discuss the penalties for second-time, third-time, and felony DUI.
Penalties for Second-time DUI
You will be convicted of a second-time DUI if you have one prior DUI conviction. Compared to third-time DUI and felony DUI, second-time DUI has less harsh penalties.
A second-time DUI conviction may attract the following penalties:
- A summary probation period of 3 – 5 years
- A county jail term of not less than four days but not more than one year
- A fine between $390 - $1,000
- A court order to attend a DUI school for 18 or 30 months
- A court order to install an ignition interlock device (IID) inside your car for one year
Penalties for Third-time DUI
You will be convicted of a third-time DUI if you have two prior DUI convictions. A third-time DUI conviction attracts the following punishments:
- A summary probation period of 3 – 5 years
- A county jail term of a minimum of 120 days to a maximum of one year
- A fine between $390 - $1,000
- A court order to attend a DUI educational program for 30 months
- A court order to install an IID inside your car for two years
- Being designated by the California DMV as a ‘habitual traffic offender’ (HTO)
Penalties for Felony DUI
You will be convicted of felony DUI if you have four or more prior DUI convictions on your record within ten years. Compared to second-time and third-time DUI, felony DUI attracts the most grievous penalties.
The following are the punishments for felony DUI:
- A state prison sentence of 16 months, two or three years
- A fine between $390 - $1,000
- A court order to install an IID inside your car for one year
- Being designated as an HTO by the California DMV
Aggravating Circumstances that may result in more Grievous Penalties
There may be certain aggravating circumstances present in your case that may result in more grievous penalties. Some examples of these aggravating circumstances include:
- Driving under the influence in the presence of a child who is below fourteen years old
- Speeding while driving under the influence
- Injuring or killing another person while driving under the influence
- Causing an accident that resulted in the destruction of property while driving under the influence
- Refusing to take a BAC test
- Having a BAC of 0.15% or higher
- Being below 21 years old at the time of the arrest
The presence of these aggravating factors in your case will most definitely increase the length of your imprisonment term. The judge will use his/her discretion to enhance your penalties depending on the seriousness of the aggravating factors present in your case.
Multiple Offense DUI Probation Conditions
A second-time or third-time DUI conviction will likely result in an informal probation period of 3-5 years. The judge will impose the following conditions during the probation period:
- You shall not drive with any measurable amount of alcohol in your blood
- You shall not fail to take a BAC test upon the request of a law enforcement officer
- You shall not participate in any other unlawful activity
If you breach any of these conditions, you may be arrested. Then, the judge may commit you to county jail.
Besides the mandatory DUI probation conditions, the judge may impose the following additional conditions:
- You shall attend Narcotics Anonymous (NA) or Alcoholics Anonymous (AA) meetings
- You shall participate in the Mothers Against Drunk Driving (MADD) Victim Impact Program
- You shall offer restitution to the affected individuals (if you caused an accident while driving under the influence)
Alternative Sentencing Options for Multiple Offense DUI
You can avoid a county jail or state prison term even after being convicted of multiple offense DUI. Your DUI defense attorney can convince the judge to offer you alternative sentencing options, such as:
- Cal-Trans roadside work
- Incarceration in a private jail
- Community service
- An order to reside in a sober living environment
- House arrest or electronic monitoring
Most attorneys do not know that these alternative sentencing options exist. Even if they know about them, they may lack the technical know-how to persuade the judge to offer you these options. This is why it is paramount for you to hire an experienced and highly skilled DUI defense attorney.
Legal Defenses to Multiple Offense DUI
You can fight multiple offense DUI charges using the following legal defenses:
- You were not driving while under the influence
- The BAC test results were inaccurate
- The field sobriety test results were inaccurate
- Law enforcement failure to comply with proper procedures
- Rising blood alcohol
Below is a brief explanation of each of these defenses:
You were not Driving while Under the Influence
This is the most common defense to multiple offense DUI charges. You can simply argue that you were not under the influence when driving.
As per California Traffic Laws, a police officer should only motion you to pull over if he/she has probable cause. For instance, if you have been speeding or driving erratically. Once you pull over, the police officer may suspect you of DUI and put you under arrest simply because of your bad driving pattern. However, a poor driving pattern does not automatically equate to a DUI, and your attorney can help you argue this out during the trial.
Also, remember that the prosecutor can rely on your physical appearance and behavior during the arrest to prove that you were under the influence. This is especially if you have been charged under California Vehicle Code 23152(a). For instance, the prosecutor can show the court that:
- You had a slurred speech
- Your eyes were red and watery
- You were in possession of narcotic drugs or alcoholic containers at the time of the arrest
- You had an alcoholic stench
- Your gait was unsteady
- You had a flushed face
However, your lawyer can help you argue that not all physical symptoms of intoxication mean that a person is under the influence. Your lawyer can give innocent explanations that may have resulted in these symptoms. For example, it is common knowledge that allergies, eye irritation, fatigue, or cold may cause red eyes. The hot sun can account for your flushed face, and you can also argue that your alcoholic odor resulted from drinking certain non-alcoholic beers.
Additionally, you can provide evidence showing that you were not mentally impaired even though you exhibited certain physical symptoms of intoxication. This is because the prosecutor must demonstrate that you were mentally impaired when driving due to the influence of alcohol or drugs.
While giving innocent alternative explanations for the physical symptoms of intoxication you exhibited, your attorney can help present evidence before the court showing that you were mentally alert. This will culminate into a robust defense strategy that will make you win your case.
The BAC Test Results were Inaccurate
More often than not, BAC test results are largely inaccurate. An inaccurate BAC test result can form the crux of your defense strategy, especially if you have been charged under California Vehicle Code 23152(b).
A BAC breath test result can be inaccurate due to the presence of mouth alcohol. Mouth alcohol can lead to a falsely high BAC test result. For instance, you may have taken a particular medicine or used a mouth spray just before the police officer motioned you to pull over. You might also have been spewed, burped, or regurgitated just before taking your BAC breath test.
BAC testing kits rely on your 'deep lung air' to test intoxication levels. However, mouth alcohol will contaminate the “deep lung air” and result in a falsely high BAC breath test result.
Moreover, certain medical conditions can result in a falsely high BAC test result. Some examples of these medical conditions include diabetes or hypoglycemia. Also, if you've been on a strict high-protein diet, for instance, the keto diet, your BAC test results may be falsely high and therefore inaccurate.
The Field Sobriety Test Results were Inaccurate
The prosecutor may rely on your field sobriety test results to prove that you were under the influence. Your DUI attorney can challenge the outcome of these results as part of your defense strategy.
In California, there are three types of field sobriety tests that the law enforcement relies on to prove intoxication:
- The walk-and-turn test
- The one-leg stand
- The horizontal nystagmus test
According to the National Highway Traffic Safety Administration (NHTSA), these tests should be administered under perfect conditions and by law enforcement officers with proper experience and training. This is not realistic.
In most cases, the following factors can affect your performance in the field sobriety test:
- Your natural physical coordination
- Flat feet
- Tension and anxiety
- Your clothing
- Poor weather conditions
These factors influence how you coordinate and balance yourself in the field sobriety test. The presence of one or more of these factors can make you ‘fail’ the field sobriety test. In such a situation, your attorney will adduce evidence showing that the field sobriety test result is inaccurate.
Law Enforcement Failure to Comply with Proper Procedures
The California Law Enforcement Department may fail to comply with proper procedures during DUI arrests and BAC testing. If this is the case, you may be acquitted.
A police officer should only motion you to pull over if he/she has probable cause. If there is no probable cause, the ensuing DUI investigation and arrest are unlawful. The only exception is if the police officer motioned you to pull over at a DUI stop.
Also, before subjecting you to a BAC breath test, the law enforcement officer should keenly observe you for at least 15 minutes. The primary purpose of this observation period is for the police officer to ensure that you do not drink or use anything that can leave residual mouth alcohol or that you do not burp, belch, or regurgitate. In most cases, police officers flaunt this rule, using the observation period to do the paperwork or set up the testing equipment. Your lawyer can question whether the police officer flaunted this rule as part of your defense strategy.
Moreover, the California Law Enforcement Department should comply with Title 17 Regulations on BAC testing. Often, this is not always the case. These regulations stipulate the following:
- The police officer should observe you for at least 15 minutes before conducting the BAC breath test (as earlier explained)
- The personnel conducting the DUI tests should be properly trained
- The tests should be appropriately administered under perfect conditions
- The testing kits should be well-calibrated and maintained
- The blood samples for DUI tests should be appropriately collected, handled, and stored
If evidence shows that the California Law Enforcement Department did not comply with these rules, your attorney will question the entire DUI investigation. In the long run, the prosecutor's evidence against you will be deemed unreliable, and you will be acquitted.
Rising Blood Alcohol
Rising blood alcohol is one of the most common DUI defenses in Sacramento. You can argue that your BAC was on the rise at the time of the arrest. Remember, what is unlawful is not drinking before driving but being physically intoxicated when driving.
After drinking, your BAC takes around 50 minutes to reach its peak level. For some individuals, this process may take 2 – 3 hours. At the time of the DUI test, your BAC may have reached its peak level, resulting in a falsely high BAC test result. This is especially if the DUI investigation process was lengthy.
Find an Experienced Sacramento Multiple Offense DUI Defense Attorney Near Me
If you or your loved one is facing multiple offense DUI charges in Sacramento, we invite you to contact us at the Foos Gavin Law Firm for professional legal help. We are here to help you build the best possible defense strategy to fight your charges. Call us today at 916-779-3500 for a free consultation.