I had a DUI conviction in 2004 and just received my 2nd and 3rd DUI arrests. What if I wasn't driving on the 2nd arrest?

Asked almost 2 years ago - Sunnyvale, CA

I had a DUI conviction in 2004 (when it was a 7-year law vice a 10-year law) and just received my 2nd and 3rd DUI arrests within two months of each other. I haven't been to court yet (court dates set) on the 2nd and 3rd arrests. I was not driving on the 2nd DUI arrest and the 3rd arrest came after got into a fender-bender upon me throwing up. The police made me take a breath test even after telling him I had just thrown up the alcohol in my car, which I consumed 3 hours prior.

Attorney answers (5)

  1. Denis Hurley White Jr

    Contributor Level 13


    Lawyers agree

    Answered . This is one of those instances where you truly need to visit with a local DUI attorney, as you won't be able to handle this on your own. Perhaps some of those individuals will post brief answers and you can follow up with them. Otherwise look at California DUI Lawyers Association's site. They list DUI attorneys by county.

    The 7 year versus 10 year lookback period for prior DUIs has been litigated with negative results for those that were told by the court the conviction was only good for 7 years. Unless there is some other basis to attack the prior conviction it will stand.

    A "no drive" defense may be a valid defense to your second offense but I wouldn't want to discuss the particular facts in a public forum like this.

    Throwing up can affect a breath result and may play a part of a high reading at the scene. I expect that there was a later blood or breath test though. If that number is not remarkably lower, then it may be a difficult sell. Additionally, if the drinking was 3 hours prior it reduces the chance that there was still alcohol in your stomach when you threw up. It is the unabsorbed alcohol that produces the unfairly high readings.

  2. Mark K Rosenfeld

    Contributor Level 15


    Lawyers agree

    Answered . You will need to get a lawyer to help you protect your rights. Look to the California DUI Lawyers Association for a list of good attorneys.

    Of course, every DUI case is different and you should consult an experienced DUI defense attorney in your area... more
  3. Michael Korry Bialys

    Contributor Level 13


    Lawyers agree

    Answered . There may be defenses or even some mitigators here but my colleagues are correct.The consequences here can be serious you will need an experienced DUI lawyer to get you through. Most offer free consultations. Take advantage od this asap.

  4. Bart Charles Craytor

    Contributor Level 17


    Lawyers agree

    Answered . Attorney White is correct, you certainly need to explore your cases with a skilled attorney. Follow his advice.

    Good Luck

    Answers provided on Avvo does not form an attorney-client relationship or indicate that the attorney represents or... more
  5. Tomas Michael Flores

    Contributor Level 9


    Lawyers agree

    Answered . If you weren't driving, then you weren't driving. End of story. We would have to supply the actual driver of the vehicle for the best possible defense to the second DUI case. Some of the local police cruisers have video capabilities, and the video may show someone else driving. Your attorney would make a motion to review it after the arraignment.

    Before we attack the throwing up prior to the breath test issue, we have to see what the test results are, review the police report, and interview witnesses. I am very familiar with the judges and prosecutors in Santa Clara County. Like the other attorneys suggest, I too advise you to make an appointment with an attorney who practices DUI defense. Your 3rd DUI is a very serious matter. My office is in downtown San Jose if you want to talk more about this case.

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