Second DUI

If you have been given a breath, blood, or urine test that was positive for alcohol or drugs, it is entirely possible that you were not under the influence of alcohol or drugs. Factors including frequency of use, body weight and size as well as metabolic rate all help to show that, although there may have been alcohol or drugs in your system, you were not in fact under the influence of alcohol or drugs.

Furthermore, the Prosecution must show “actual impairment”. If you call Team DUI Irvine today, we can order a blood split from a certified specialist with whom we work frequently to negate the presence of drugs or alternatively, to show no actual impairment due to prior use of drugs.

If you are found guilty of a second DUI in Irvine then the punishment will likely include a mandatory jail sentence, probation, fines, DUI school, and a driver’s license suspension. To protect yourself from these serious punishments, call Team DUI Irvine today.

A second DUI in Irvine for alcohol or drugs often occurs when a driver who has ingested alcohol or drugs is stopped for a minor traffic violation and the police officer notices something that indicates the driver is intoxicated or high. The officer may smell alcohol or drugs, or he may see empty bottles or drug paraphernalia, or he may hear someone make an incriminating statement. The officer may have stopped the driver because he noticed the vehicle swerving or other suspicious circumstances.

A second DUI in Irvine is generally a misdemeanor, unless there are aggravating circumstances such as bodily injury to another person. Although a second DUI in Irvine is still a misdemeanor, most courts will sentence a guilty defendant to some jail time. It is important to call Team DUI today so that we can get started on your case and try to keep you out of jail.

A second DUI in Irvine is also subject to a DMV suspension of your driving privileges. You only have a short period of time, usually 10 days or less, to challenge a DMV license suspension. If you don’t challenge the DMV within 10 days then your license will be automatically suspended in 30 days. Team DUI Irvine can fight the DMV so that you may be able to keep your license, or get a restricted license or ignition interlock device.

If your 1st DUI occurred more than 10 years ago, or if your 1st DUI occurred in another jurisdiction, Team DUI Irvine may be able to get your second DUI in Irvine case lowered to a 1st DUI before or at the preliminary hearing.

A second DUI for alcohol or drugs falls under the law for a DUI in Irvine, however the punishments are more severe.

First, let DUI Lawyers in Irvine give you the relevant law. The relevant portion of the law that is applicable to a second DUI in Irvine is as follows:

CVC 23152 Driving Under Influence of Alcohol or Drugs

• It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.
• 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.
• For purposes of this article and Section 34501.16, percent, by weight, of alcohol in a person's blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.
• It is unlawful for a person who is addicted to the use of any drug to drive a vehicle. This subdivision shall not apply to a person who is participating in a narcotic treatment program approved pursuant to Article 3 (commencing with Section 11875) of Chapter 1 of Part 3 of Division 10.5 of the Health and Safety Code.
• It is unlawful for a person who has 0.04 percent or more, by weight, of alcohol in his or her blood to drive a commercial motor vehicle, as defined in Section 15210.
• In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.
• It is unlawful for a person who is under the influence of any drug to drive a vehicle.
• It is unlawful for a person who is under the combined influence of any alcoholic beverage and drug to drive a vehicle.
• [The above law was amended and reinstated to include the new narcotics treatment program approved by the Health and Safety Code.]

Basically, a second DUI for alcohol can be charged in one of two ways: by showing actual impairment by alcohol or drugs while driving and by the statutory Blood Alcohol Limits. Thus, Police can charge you because your breath or blood exceeded a .08 blood alcohol content, or because you were actually impaired while driving, despite having a blood alcohol content of less than .08.

Punishments for a second DUI in Irvine vary depending in where you were arrested and which court your case is handled in. Generally, there are several possible outcomes of your case.

Initially, you could plead guilty and suffer the penalties below.

• You plead not guilty then we can ask the prosecutor to lower the charge to a less serious traffic violation.
• If plea bargaining is unsuccessful, then DUI Lawyers Irvine can challenge the prosecution’s evidence at the preliminary hearing. Your case could be dismissed at the preliminary hearing if the judge finds that the police didn’t follow the law.
• After the preliminary hearing DUI Lawyers Irvine can talk to the prosecutor again to seek a lower charge now that their evidence has been challenged.
• If your case is not dismissed, and we cannot successfully get the prosecutor to lower your charges, then we prepare for trial. DUI Lawyers Irvine consults with an expert witness who, if necessary, can testify that you were not impaired or that the tests are invalid. After the trial, you could be found not guilty.
• However, if you are found guilty of a second DUI in Irvine, then the punishment will likely include a mandatory jail sentence, probation, fines, DUI school, and a driver’s license suspension.
• Even if you are found guilty, DUI Lawyers Irvine may be able to help you get a temporary hardship or work driver’s license.
• Also, DUI Lawyers Irvine may be able to get you driving again with an ignition interlock device that tests the driver’s breath for alcohol.

The law regarding the punishment for a second DUI in Irvine is listed below. However, don’t let a confusing law stand in the way of beating your DUI. Call DUI Lawyers Irvine today and we can go over the details of your case, and explain how this confusing law will affect you.

second DUI Irvine Punishment

CVC 23540. Second offense; punishment

(a) If a person is convicted of a violation of Section 23152 and the offense occurred within 10 years of a separate violation of Section 23103, as specified in Section 23103.5, 23152, or 23153, that resulted in a conviction, that person shall be punished by imprisonment in the county jail for not less than 90 days nor more than one year and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000). The person's privilege to operate a motor vehicle shall be suspended by the department pursuant to paragraph (3) of subdivision (a) of Section 13352. The court shall require the person to surrender the driver's license to the court in accordance with Section 13550.

(b) Whenever, when considering the circumstances taken as a whole, the court determines that the person punished under this section would present a traffic safety or public safety risk if authorized to operate a motor vehicle during the period of suspension imposed under paragraph (3) of subdivision (a) of Section 13352, the court may disallow the issuance of a restricted driver's license required under Section 13352.5.

CVC 23600. Conviction and pronouncement of sentence for violations of Section 23152 or 23153; probation; minimum confinement or fine; violation of probation

(a) If any person is convicted of a violation of Section 23152 or 23153, the court shall not stay or suspend pronouncement of sentencing, and shall pronounce sentence in conjunction with the conviction in a reasonable time, including time for receipt of any presentence investigation report ordered pursuant to Section 23655.

(b) If any person is convicted of a violation of Section 23152 or 23153 and is granted probation, the terms and conditions of probation shall include, but not be limited to, the following:

(1) Notwithstanding Section 1203a of the Penal Code, a period of probation not less than three nor more than five years; provided, however, that if the maximum sentence provided for the offense may exceed five years in the state prison, the period during which the sentence may be suspended and terms of probation enforced may be for a longer period than three years but may not exceed the maximum time for which sentence of imprisonment may be pronounced.

(2) A requirement that the person shall not drive a vehicle with any measurable amount of alcohol in his or her blood.

(3) A requirement that the person, if arrested for a violation of Section 23152 or 23153, shall not refuse to submit to a chemical test of his or her blood, breath, or urine, pursuant to Section 23612, for the purpose of determining the alcoholic content of his or her blood.

(4) A requirement that the person shall not commit any criminal offense.

(c) The court shall not absolve a person who is convicted of a violation of Section 23152 or 23153 from the obligation of spending the minimum time in confinement, if any, or of paying the minimum fine imposed by law.

(d) In addition to any other provision of law, if any person violates paragraph (2) or (3) of subdivision (b) and the person had a blood alcohol concentration of over 0.04 percent as determined by a chemical test, the court shall revoke or terminate the person's probation as provided by Section 23602, regardless of any other proceeding, and shall only grant a new term of probation of not more than five years on the added condition that the person be confined in the county jail for not less than 48 hours for each of these violations of probation, except in unusual cases where the interests of justice would best be served if this additional condition were not imposed.

DUI Lawyers Irvine aggressively challenges breath, blood, and urine test results. The machines used to test your breath, blood, or urine are subject to many challenges as well, including that the machines were not calibrated or maintained properly. There are dozens of reasons that a Breathalyzer test can end with inaccurate results. Improper handling, storage, and testing methods often lead to junk evidence that is inadmissible in court.

Our DUI defense team can also take the police officer to court to make him or her testify as to their knowledge of DUI investigations, and their methods of evidence collection. Your case may be dismissed at this preliminary hearing if the Judge finds that the Officer did not follow the law while investigating your case.

Also, if the police officer did not stop you for the right reasons or had no reason at all, we can argue that the officer had no probable cause or reasonable suspicion to stop you, and it may be possible that the prosecution or judge will dismiss the case.

Depending on the circumstances of your case, an argument is that you were not actually driving the vehicle. It is possible that an officer did not witness you driving, or that you were merely sitting in a parked vehicle. Depending on the circumstances of your case, DUI Lawyers Irvine may be able to convince the court that there is insufficient evidence to prove you were driving.

If your prior DUI occurred more than 10 years ago, or if your prior DUI occurred in another jurisdiction, DUI Lawyers Irvine may be able to get your 2nd DUI case lowered to a 1st DUI before or at the preliminary hearing.

If you are pulled over by a police officer and it is discovered that you have been drinking or taking drugs, and you are then charged with a DUI, there are plausible defenses to such a case, including the defense that you are not “actually impaired”.

For an individual to be guilty of driving while under the influence of drugs, it is not enough that the drug could impair an individual's driving ability or that the person is under the influence to some detectible degree. Rather, the drug must actually impair the individual's driving ability. Depending on the amount of the drug in your system at the time, we can make a case that you were not actually impaired.

Drugs affect people differently depending on their height, weight, body fat, and metabolism. Also, a person’s particular tolerance (a built up immunity to a drug’s effect by extended use) may mean that they will need more of a drug to feel the same effect as someone who does not regularly use the drug. DUI Lawyers Irvine can bring a qualified expert to testify in court about how these factors impact your case.

Police attempt to show actual impairment by blood or urine tests. However, blood and urine tests are subject to many challenges, including that the police did not follow storage and handling procedures they are required by law to follow. Also, additional blood tests by DUI Lawyers Irvine can show that you were not actually impaired, and thus not guilty. Our team of lawyers would ask for a blood split to determine when the last time the drug was used, and if so, the relative quantity of the drug. If we can show that the driver was not actually impaired by drugs, then a 2nd DUI for drugs may not stick in Court.

Contact DUI Lawyers Irvine today for a free and confidential consultation regarding your case. We will look at your personal history and the facts surrounding the charges against you, and then we can discuss possible outcomes with you at no cost.