A 3rd DUI Offense in Sacramento Means Mandatory Jail Time
The Third DUI – CVC Section 23546
A third DUI in California is still a misdemeanor pursuant to California Vehicle Code Section 23546 VC. provided you were not in an injury accident or caused one that resulted in a fatality. If the DUI conviction was within 10 years of your second one. you face certain jail time and a significantly longer period without a drivers license along with other serious consequences.
CVC Section 23456 states:
a) If a person is convicted of a violation of Section 23152 and the offense occurred within 10 years of two separate violations of Section 23103. as specified in Section 23103.5. 23152. 0,3153. or any combination thereof. that resulted in convictions. that person shall be punished by imprisonment in the county jail for not less than., days nor more than one year and by a fine of no less than three hundred ninety dollars (S390) nor more than one thousand dollars ($1.000). The person’s privilege to operate a motor vehicle shall be revoked by the Department of Motor Vehicles as required in paragraph (5) of subdivision (a) of section 13352. The court shall require the person to surrender his or her drivers’ license to the court in accordance with Section 13550.
b) A person convicted of a violation of Section 23152 punishable under this section shall be designated as a habitual traffic offender for a period of three years, subsequent to the conviction. The person shall be advised of this designation pursuant to subdivision (b) of Section 13350
Exercise Your Rights
Once you are stopped and detained for suspicion of DUI, you can help protect yourself by exercising your right to not incriminate yourself under the 5. Amendment to the US Constitution. This includes:
- Politely refusing to answer any of the officer’s questions. If you have prior DUI convictions. the officer will immediately know this and you will likely I. automatically under suspicion of DUI. You have no obligation to tell the officer if you have been drinking. where you are coming from or where you are going or any other questions other than providing your license, registration and insurance information.
- Politely refusing to perform any field sobriety tests (FST) or to take the PAS. or preliminary alcohol screening test. which is a portable breath test device.
Your actions may be recorded by a camera mounted on the police car that also records any conversation. Your demeanor, speech a. other conduct can provide a reliable record of sobriety. If you are on court-ordered probation. however. you are subject to certain penalties if you fail the PAS or if you decline take it. Most probation conditions will state that you must submit to the PAS and the Breathalyzer or blood test or face automatic revocation of your 10e113e for 2 or 3 years. If it is a probation violation, you could face jail time.
The Chemical or Breath Test
The most incriminating evidence in a DUI case is the chemical or BAC results from either the Breathalyzer or blood tea. If your results are at least 0.08%. there is a legal presumption that you were under the influence of alcohol though this is construed as applying a Ne time of testing a. not necessarily at the time, you were driving. Consequently, your attorney can argue and present evidence to rebut the presumption Of intoxication, by testimony challenging the accuracy of results or by showing that your BAC was probably rising by the time you were tested and so was likely below 0.0B. when you were stopped by law enforcement. Should you refuse to test, the obvious conclusion is that there is no objective evidence of your impairment. California law. however, also states that a refusal is admissible as evidence that you were aware of your guilt and that you were under the influence. though Nis is a rebuttable presumption. A refusal can also result in an extended revocation of your driving privileges and can add time to your jail sentence
Administrative Per Se Hearing
Along with your criminal proceeding is the civil aspect of your DUI. or that which is solely about your driver’s license. After you are arrested Nr a 13.1. you have only10 days to request a hearing. Unless you request an in-person hearing, it will be over the telephone. your hearing is held before a hearing officer who will consider:
- If the arresting officer had probable cause to believe you were under the influence
- Whether the officer lawfully arrested you
- Whether you were dining with a BAC of at least 0.08%
If you refused .sting. the issues are:
- Whether the officer advised you that a refusal to submit a breath or blood sample would result in a one-year suspension or 2-3 year revocation.
- And whether you willfully refused to provide a chemical blood or breath test after it was offered
Defenses to a DUI
There are any number of defenses to a DUI charge. The following are some common defenses used:
You were not driving
The arresting officer had to have observed you driving. In some cases. defendants are arrested at their home or other location after someone reported you or you were tested some time later when officers showed up at an accident site. You could have been drinking at some time after you were driving so there is no probable cause to arrest you or no one can identify you as the person driving.
Your arrest at a DUI checkpoint was unlawful
DUI checkpoints are legal but law enforcement has to follow carefully prescribed rules for conducting it or your arrest could be ruled unlawful.
There was no probable cause to pull you over and detain you
Racial profiling is still followed by law enforcement despite clear policies in most law enforcement departments outlawing it.
The breath testing protocol and instrument was not calibrated correctly and is inaccurate.
There are countless ways an experienced DUI defense attorney can challenge the breath or blood test including improper calibration. maintenance. failure to observe you for a sufficiently long time before testing. not properly advising you of the consequences of refusing testing. improper foundation. errors in documentation a. chain of evidence problems. among others.
Penalties for a Third DUI
The penalties for a third DUI within 10 years of your second conviction are very harsh and include:
- No less than-120 days and up to one year in jail
- 3 to 5 years of summary probation
- Fine of $390 to $1.000
- Habitual traffic offender (HTO) status for 3 years
- Enrollment in a DUI education class for 18 to 30-months
- 3-year license revocation
- Installation of ignition interlock system during period of restricted license
You can reduce your license revocation period after one year but you will only receive a restricted license if not deemed a clanger to public safety. You are not eligible for a restricted license if you refused chemical or breath testing.
There are numerous circumstances under which your jail sentence. fines. costs a. other penalties can he increased including:
DUI with Injury under CVC 231s3 (possible felony charges):
It is unlawful for a person. while under Me influence of any alcoholic beverage. to drive a vehicle a. concurrently to do any act forbidden by law. or neglect any duty Imposed by law in driving the vehicle. which act or neglect proximately causes bodily injury to any person other than the driver: DUl with
DUl with child in car under CVC 23572:
(a) If any person is convicted of a violation of Section 23152 and a minor under 14 years of age was a passenger in the vehicle at Me time of the offense. Me court shall impose the following penalties in addition to any other penalty prescribed:
(1)11 the person is convict. of a violation of Section 23152 punishable under Section 23536. Me punishment shall be enhanced by an imprisonment of 413 continuous hours in the county jail. whether or not probation is 4352150. 20 part of which shall be stayed.
(2) If the person is convicted cif a violation of Section 23152 punishable under Section 23340. the punishment shall he enhanced by an imprisonment af 30 days in Me county jail. whether or not probation is granted. no part of which shall be Wayed.
(3)1f Me person is cmvicted af a vi.ation of Section 23152 punishable under Section 2354S. Me punishment shall be enhanced by an imprisonment of 10 days in the county jail. whether ar not probation is granted. no part of whiM shall be SW..
(4) If Me person is convicted& a violation of Section 23152 punishable under Section 23550. the punishment Mall be finhanCied iinriMMMent & SO CiaT3 Me comb( Mil, whether or not probation is granted. no part of which shall be WNW,
(b) The driving of a vehicle In which a minor under 14 years of age was a passenger shall be pled and proven.
(c) No punishment enhancement shall 633 13166532 pursuant to Ms section If the pwsm is alm convicted of a violation of Section 273a of the Penal code arising out of the sarne facts and Incident:
Excessive speeding or reckless driving (additional 60 days In jail)
Having a BAC of 0.15% or higher (automatic installatMn of an ionItIon interlock device)
Retain a California DUI Attorney
A third DUI conviction means certain jail time a. a significant period wiMout a driver’s license followed by years of very limited driving with the indignity of an ignition interlock system) installed on your car. If arrested.It is vital that you promptly contact a California Dui defense attorney to schedule an Administrative Per Se hearing and ta prepare far your criminal defense.