Can I expect jail time with a second DUI, and can I get a restricted license sooner than the normal 1-year suspension?
Can I expect jail time with a second DUI and is there a way to get a restricted license sooner than the normal 1 year suspension?
Can you go to jail for your second DUI? I was arrested by CHP a few days ago around 9:30pm for my second DUI offense. My first offense was 1 year ago. I was pulled over for speeding. I gave the officer my license and registration, and then he came back and asked how much I had to drink. I told the officer I had a few beers during the day, having my last around 4:30 - 5pm.
I was asked to perform several DUI tests, which I passed very well in my eyes, as well as the witness' with me. Then I performed a breath test, two times before he arrested me and again after I was put in the car. The last one he let me see, which was a 0.12. I was sent to jail spent 24 hours in the loop and was eventually bailed out. I'm concerned because I'm very self reliant, and I have a good stable job that depends on me that i cannot afford to lose.
This is my second DUI in California, will I get jail time?
8 attorney answers
Jail is typically mandatory for repeat offenders, esp when previous conviction is within a year. In addition, limited driving privileges are usually not available to repeat offenders.
In the future, refuse any tests, the cops are only gathering evidence to use in court. Visit my site for what to do if you are stopped and been drinking.
www.mecklenburgdwi.com
Attorney Gregory Spink is licensed in North Carolina, with a focused practice in Mecklenburg and Gaston Counties. Nothing is intended in this post to serve as legal advice. It is my opinion based on studying the law and passing the Bar Exam and should not be construed as legal advice. You should always contact a local attorney, who is familiar with local rules. Each case must be judged on a case by case basis with all evidence being reviewed by a licensed attorney. Nothing in this post should be construed as creating an attorney and client relationship.
I agree with the other attorneys that jail time is typically mandatory for a repeat DUI offense. While you will likely have to serve some length of time, the sentencing judge will likely give you time credit for the 24 hours you have already spent locked up. Further, you have a relatively low BAC, which should help with sentencing. Also, you do not have to participate in field sobriety tests, so hopefully you're never in that situation again, but remember to refuse to do them.
Good luck to you in your situation, and consult with an attorney immediately.
The Code requires a mandatory minimum jail sentence for second DUI in California but that can potentially be converted to house arrest or other alternative sentencing.
Regarding the license suspension - yes, it is possible to shorten the suspension period and get a restricted license with certain parameters being met - the main one is the installation of an ignition interlock device.
Don't miss the 10 day window to set a hearing with the DMV to challenge the automatic suspension of your license. You only have 10 days from the date of your arrest.
The above answer is for general information only and is based on the information you posted. Every case is fact dependent, so to get a thorough analysis of your situation, you will need to consult face to face with an attorney licensed to practice in the jurisdiction where the incident took place. Do not conclusively rely on any information posted online when deciding what to do about your case.
As everyone else has informed you, jail time is mandatory on a second time DUI. However, depending on the judge you are in front of, you may be able to serve that time as house arrest.
Your blood alcohol level is not very high and speeding as the basis for the stop is not the worst reason for being stopped. At least you were not involved in a collision, which would be much more aggravating. The fact that you have a good job (along with various other factors) may help bolster your chances of getting home confinement.
You will be facing a probation violation for the 1st DUI, which will most likely carry an additional penalty.
Before you think about pleading guilty, however, speak to an attorney about the facts of your case. At least take the opportunity to see what the strengths and weaknesses of your case are to be better informed as to how to proceed.
In California a 2nd DUI carries a mandatory jail sentence. The amount of time is dependent on a number of factors, including your BAC and the time period between the first and second DUI. Your BAC was not high so that is not an aggravating factor. The fact that you have a good job is also another positive factor for you.
Depending on what court your case is in some judges will allow you to do home confinement or the SCRAM program as an alternative to a jail sentence. While this would not be your first option if the court does not permit those options, private jail is another option. You are allowed to spend your time at a City Jail and are released to go to work.
With respect to your CDL you may be eligible for a restricted CDL after an initial suspension. This involves the installation of an IID on your car. Do not forget to set your DMV hearing. You only have 10 days from the date of arrest to set it.
Before going to court, you should consult with an attorney to review your case. Most attorneys will offer an initial complimentary consultation.
The other attorneys are correct in their assessment of your situation. However, if you stopped drinking when you said that you did, you shouldn't have a .12 blood alcohol result. Something is not adding up.
BARRY BESSER
Well to be honest i was surprised as well. I am thinner and hadn't much to eat that day besides a couple slices of pizza in the afternoon. I assumed that had a lot to do with my BAC being so high for what and when I was drinking. But i should consider something being off about that. It seemed like once the CHP knew I had a prior DUI he was pretty intent on making sure I was going to jail. However, I did drink and drive so there is not much else to say regarding that unfortunately.
The other attorneys are missing something here!
Firstly, yes, jail is mandatory for 2nd time offenders (at least 96 hours and up to a year); however, you may be able to qualify for alternative options: electronic monitoring, house arrest, work furlough, SCRAM bracelet, weekends, city jails, etc.
Here is what they missed: you are likely on DUI probation from your first. Therefore, if you lose the DMV hearing, you will get a 1 year suspension THAT IS NOT ELIGIBLE FOR A RESTRICTION! This is because the hearing is not just about having a 2nd DUI in 10 years, but "driving with a 01% BAL or higher while on DUI probation! No restriction is permitted! The IID device is only for 2nd timers who are NOT on DUI probation."
Also, if you get a conviction in COURTfor a 2nd time in 10 years, the DMV will then suspend for 2 years (to run at the same time as their 1 year suspension). NORMALLY, an IID device, SR22, enrollment in 18 mo. program and $125 to DMV will get you a FULL license (call "IID Restricted") that allows you to drive anywhere, AFTER 90 days of that 2 year suspension. However, the .01% suspension will control. Therefore, you MUST serve the 1 year, THEN if you put on an IID (and the other terms), you can get the "full" driving privilege for the 1 year remaining on that 2 year suspension.
Hope that makes sense. Get a lawyer right away. You only have 10 days to contact DMV to get a hearing.
The response above does not form an attorney-client relationship. This answer may or may not apply to you and should not be relied upon as legal advice. The attorney does not make any representation as to the expertise or qualifications. This attorney may or may not be admitted to state bar of your state.
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Joseph Briscoe Dane
Refusing a chemical test in California will result in the automatic suspension of your driver's license and will end with a forced blood draw with the evidence still admissible against them. California has an implied consent law and rather harsh penalties for refusals.
Jeffrey Scott Bullard
If you take this advice and refuse all tests, you will lose your license for at least one year here in CA.
Gregory David Spink
One must weigh losing their license for one year versus a DUI conviction, which would carry insurance premiums, active jail time, or never being to obtain a license again. I understand CA may force a blood draw but refusing the preliminary field sobriety tests, allows challenging the arrest...unless CA doesn't allow a defendant to challenge the State's Probable Cause to arrest.
Joseph Briscoe Dane
Even after giving a sample (a post arrest sample as required by California statute), a defendant can absolutely challenge the reasonable suspicion for the stop and the probable cause for the arrest. I'm just not sure I'd advocate your position of refusing the required chemical test, taking the year's suspension from the DMV and still having a forced blood draw where the results are most likely admissible against you, along with the jury instruction regarding consciousness of guilt for refusing the chemical test. Declining field sobriety tests with a statement such as, "I am declining to do any field sobriety tests, as they are subjective and inherently flawed" and declining the preliminary alcohol screening (PAS) device [unless you're under 21 or on probation for DUI in which case you must submit] I agree with, but in general the consequences are much worse with a refusal of the post-arrest required chemical test.