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    2nd DUI In California: What to Do and What to Expect

    Updated

    2nd Time DUI in California

    The penalties and punishment for a second offense DUI conviction in California typically entail:

    1. 3 to 5 years of misdemeanor probation
    2. A fine of $390, plus penalty assessments. This can take the total to nearly $2000.
    3. A 2nd Offender DUI school (SB38) that is 18-30 months in length
    4. Installation of an ignition interlock device (IID) in the vehicle for 1 year
    5. A “mandatory minimum” of 96 hours in the county jail to a maximum sentence of one year.

    In this article, our California DUI defense lawyers address the following:

    Three police cars behind a stopped sedan during a traffic stop

    People arrested for second DUIs face a longer suspension of driving privileges than for a first offense DUI.

    1. What are the penalties for a second time DUI in California?

    One common question that presents itself for those arrested and charged with a second time DUI in California is how the penalties and punishment handed down by the Court and/or DMV differ from those given after a first DUI conviction in California?

    There is no simple way of answering this question. This is true because the answer in large part depends on the distinct facts of each individual case.  However, the sections that follow offer a basic framework of what you may normally expect if you end up getting a second DUI conviction in California.

    Please note that while there are a few charges that are commonly reduced from California DUIs during DUI plea bargaining (for example, a “wet” reckless, 2dry reckless,3 or exhibition of speed or “speed ex”4 ), this article only details punishments and penalties that are for actual second time driving under the influence convictions in California.

    When convicted of driving under the influence for a second time in California, the penalties typically imposed by the court are as follows5 :

    • Three to five years of summary probation6
    • A minimum of 96 hours to a maximum of one year of mandatory jail time
    • Between $390-$1,000 in fines plus roughly an additional $1000 in penalty assessments
    • Completion of an 18-month or 30-month court-approved California DUI school
    • Installation of an ignition interlock device (IID), usually for a year
    • A two-year driver’s license suspension that, after twelve months, may be converted to a restricted license; alternatively, the defendant may get an IID restricted license right away that permits the defendant to drive anywhere as long as an IID is installed

    Nevertheless, the usual punishment handed down by the Court for a second time DUI in California generally varies by the county in which the conviction occurs (Please see Section VI below).

    Importantly, when courts in California impose a DUI sentence that includes probation, the following conditions are always included7 :

    • You shall not drive with any measurable amount of alcohol in your blood.
    • You shall not refuse to submit to a chemical test of your blood, breath, or, in rare cases urine, if arrested for a subsequent DUI.
    • You shall not commit any additional crimes.

    Furthermore, depending on the circumstances, the following conditions of probation may be imposed for a second time DUI in California:

    Dmv california driver's license, which will be suspended following a second DUI

    DUI 2nd suspects who refuse to submit to a chemical blood or breathalyzer test face a two-year license suspension.

    2. Will I Lose My License?

    The California Department of Motor Vehicles is the only authority that can or will suspend a California driver’s license and/or give restricted licenses (“RS”).

    However, there are two separate ways to trigger the imposition of a license suspension by the DMV.

    1. A suspension triggered as a result of a DUI California court conviction under VC 23152 (a) or (b).
    2. A suspension triggered by failing to request a DMV hearing within 10 days of the date of the arrest or by losing DMV hearing. This is called an Administrative Per Se or APS Suspension.

    The court-triggered suspension is 2 years when there is 1 prior DUI or wet reckless conviction within 10 years.

    On the other hand, the APS suspension is 1 year if there is 1 previous DUI on the record within 10 years.  However, after 90 days, if you submitted to a chemical test and show proof of installation of an ignition interlock device (“IID”), you can obtain a restricted license. This restricted license allows you to drive anywhere as long as it’s in a car with an IID installed. This is required for 12 months.

    Unfortunately, drivers facing a second time DUI offense in California who also refused to submit to a chemical test will face much tougher punishment. These individuals face a two-year license revocation and are not entitled to a restricted license during any part of the suspension period.

    You should note that there is no way around the 12-month IID requirement, so you should install it immediately so that you can get the restricted license on the 91st day after your suspension initially began.

    Finally, prior to getting a restricted license, your DMV record should show that a court-triggered suspension has already begun. However, the suspension triggered as a result of the court conviction does not have to already have run 90 days so as long as the APS has already run 90 days, which is common.

    3. Will I Have A Permanent Criminal Record?

    Although certainly disappointing, a second time DUI conviction may be removed from your permanent criminal record. This may be done by getting an expungement.

    You should be able to expunge your California DUI conviction, so long as:

    1. you were placed on probation9 and
    2. you successfully completed probation.

    In many ways, A DUI expungement works like any other California criminal record expungement. Essentially, a petition is filed with the court and then reviewed by a judge. If the judge grants the DUI expungement, you may withdraw your plea of guilty or no contest, re-enter a plea of “Not Guilty.” Once this plea of “Not guilty” is entered, the case should then become dismissed.

    4. What factors can increase the punishment?

    There are certain circumstances that, if present at the time you are booked for your second offense DUI in California, will increase your county jail or state prison sentence.

    The most common of these include:

    What type of enhanced penalty you receive for any of these aggravating factors will largely depend on (1) the exact circumstances of your California DUI arrest, and (2) your criminal history (with focus on your prior DUI history). Clearly, a prior DUI conviction, combined with one of the above-mentioned aggravating factors, makes the pending penalties even more severe.

    judge in court about to sentence a DUI 2nd defendant in the foreground

    Courts are required to impose mandatory jail time for 2nd DUIs.

    5. How do I fight a 2nd time DUI charge?

    A second time DUI in California arrest is a daunting but surmountable challenge.  When you hire the right DUI attorney, there is oftentimes hope to come out of the process with a dismissal or acquittal.

    Nevertheless, in order to achieve this, it helps to have the mindset immediately after your arrest to have a DUI defense lawyer look over your case.

    A lot goes into creating an effective DUI defense and some of this may need to be done within hours after your second time DUI arrest in California. The specific need to hire a criminal defense lawyer to fight your DUI case includes the following:

    1. Collecting and Analyzing  of Evidence:

    A good DUI defense attorney will know how to collect and analyze any evidence that would help your defense. This includes subpoenaing witnesses that may support your case. It may also include obtaining the police vehicle video of your stop as well as any accompanying audio recordings. If, for example, an officer states that he stopped your vehicle because you did not have a front license plate, and it is proved otherwise by showing that the Officer never had a glimpse of the front of your vehicle prior to the stop, then this may prove essential in damaging the officer’s testimony.

    2. Legal Research and Writing:

    Alongside the need to have an attorney collect and interpret the evidence in your case, a good criminal defense attorney will also then be able to use this evidence as the basis for putting together written motions in support of your case. For example, if you believe any of the officers surrounding your DUI arrest unfairly targeted you or treated you in an inappropriate or unprofessional manner that would suggest police misconduct, then your attorney can file a “Pitchess Motion.” This motion, which may be filed and heard before any trial takes place, may allow your attorney to dig up dirt from an officer’s personnel file, giving you potentially more ammunition to fight your case.

    3. Plea Bargaining:

    It’s also important to hire an attorney because he or she may be able to “settle” your case to your satisfaction. Since the overwhelming majority of DUIs do not go to trial, it’s just as important to have a good DUI trial attorney as it is to have a DUI attorney who knows how to “talk the talk” with District Attorneys. These settlement discussions may help to get you a “wet” or “dry” reckless charge for your first time DUI in California.

    6. What are the specific penalties for each county?

    Although specific statutory penalties exist for a second time DUI in California, many counties in California have varying and unique penalties. A list of the major counties is as follows:

    Call Us For Help…

    california dui attorneys

    Contact our law firm for legal advice. Our DUI lawyers offer free consultations.

    If you or a loved one is charged with a second DUI offense and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We create attorney-client relationships throughout the state.

    Arrested in Las Vegas, Reno, or elsewhere in Nevada? See our article on DUI seconds in Nevada.

    Legal References

    1. This ten-year timeframe is otherwise known as a “washout” or “lookback” period and also includes (1) California “wet” reckless, convictions, and (2) out-of-state convictions that, if committed in California, would constitute a DUI.
    2. Pursuant to California Vehicle Code 23103.5, a wet reckless is a reckless driving that functions as a prior DUI on your record. If you sustain a wet reckless conviction, and get charged with a subsequent DUI during the following 10 years, courts treat the new DUI charge as a second offense when imposing DUI penalties in California.
    3. California Vehicle Code 23103 defines reckless driving. If, after being charged with a DUI, you plead guilty or no contest to this charge, it is referred to as a dry reckless, as opposed to a “wet” reckless.
    4. California Vehicle Code 23109(c) exhibition of speed or “speed ex” is a charge that is commonly bargained for during DUI plea bargaining. Although it has nothing to do with DUI per se, it acts as a signal to other prosecutors and law enforcement officers that you were initially arrested for a DUI.
    5. California Vehicle Code 23540 VC.
    6. California Vehicle Code 23600 — DUI sentencing.
    7. California Vehicle Code 23600. Conviction and pronouncement of sentence for violations of § 23152 or § 23153; probation; minimum confinement or fine; violation of probation.
    8. California Vehicle Code 23575 — DUI penalties. Court-mandated use of ignition interlock device.See also California Vehicle Code 23700 VCCalifornia Senate Bill 1046 (2018).
    9. Following a plea or a jury conviction to a DUI charge, a defendant is usually placed on 3 to 5 years of probation. In a misdemeanor case, this is referred to as “summary probation” or “informal probation”-meaning the person does not need to report to a probation officer. The defendant may petition the court to terminate the DUI probation early, for example after 18 months. In reality, however, most judges are very reluctant to grant an early termination of probation in a DUI case. One of the terms of DUI probation is that the person may not drive with any measurable amount of alcohol in his system. Judges generally want to see the defendant bound by this term for as long as possible. Therefore, most judges will require the defendant to serve the complete term of probation before granting the DUI expungement and dismissing the case.
    10. California Vehicle Code 23578
    11. Id., See also California Vehicle Code 23577In addition, Vehicle Code 13353 permits the DMV to suspend your driver’s license for multiple years when dealing with a second offense DUI in California.
    12. Many counties will impose an additional county jail sentence if you caused an accident on your second time DUI in California, even though the accident did not result in injury.
    13. If you are under 21 at the time of your second time DUI conviction in California, you will additionally be convicted of Vehicle Code 23136 (a civil offense under California’s zero-tolerance policy) and of an infraction under Vehicle Code 23140 (driving with a BAC of 0.05% to 0.07%).
    14. California Vehicle Code 23582
    15. California Vehicle Code 23572 — DUI sentencing. Conviction of violation of Vehicle Code 23152; minor in vehicle; enhanced punishment.See also California Penal Code 273a — Child endangerment.

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