What if I Get a 2nd DUI While on Probation for My 1st DUI?

Drunk driving convictions are priorable offenses in California. A priorable offense means that the prior conviction enhances the penalties for another conviction. Therefore, any prior DUI convictions on your record result in harsher punishments for subsequent drunk driving convictions. 

Being charged with driving under the influence while on probation for a DUI conviction is treated severely by California courts. Punishments for drunk driving are intended to deter individuals from repeating the same conduct. If you violate DUI probation by driving under the influence again, your prior DUI affects the new offense, and you also face the consequences for violating DUI probation.

Unfortunately, violations of DUI probation are common. The best thing you can do for yourself is contact an experienced California DUI defense lawyer.

How Does the 2nd DUI Affect Your Current DUI Probation?

For a first-time DUI conviction, judges may grant three to five years of summary (informal) probation. The terms of probation vary, but they often include:

  • Agreeing not to drive a motor vehicle with any measurable amount of blood alcohol in your system during the probationary period
  • Agreeing to submit to a DUI blood test or DUI breath test if arrested for suspicion of driving under the influence
  • Paying fines and assessments
  • Completing DUI school
  • Attending an alcohol and/or drug treatment program
  • Community service
  • Agreeing to drug and alcohol testing
  • Suspension of driving privileges or mandatory installation of an ignition interlock device (IID)

Breaking any of the rules of probation could result in penalties for the probation violation. As noted, most probation terms include an agreement not to drive with any measurable alcohol in your system. Therefore, driving after just a couple of drinks could result in a probation violation. 

What Are the Consequences of a Second DUI on Probation for a First DUI Conviction?

You could be convicted of violating probation even if you are not convicted of drunk driving because you do not have to be over the legal limit to violate probation. For example, merely driving under the influence of alcohol is sufficient to charge you with violation of probation. Likewise, refusing a chemical test is sufficient to make an arrest for a DUI probation violation. 

Violating DUI probation is a separate criminal offense. After your arrest, the court schedules a probation violation hearing. At the hearing, the prosecution presents evidence that you violated the terms of DUI probation by driving under the influence of alcohol or drugs. Evidence may include the testimony of the police officer, results from field sobriety tests, and blood alcohol chemical test results.

The burden of proof during a probation violation hearing is less than the burden of proof at a DUI trial. The prosecutor only needs to prove you violated the terms of probation by a preponderance of the evidence. 

A preponderance of the evidence means that the allegations against you are more likely to be true than not true. In other words, there is a more than a 50% chance you violated the terms of probation. However, during a DUI trial, the prosecution must prove its case beyond a reasonable doubt.

The judge is not ruling on whether you were driving under the influence or driving with a BAC over the legal limit. That decision occurs at the hearing for your second DUI charge. At this hearing, the judge only determines whether you violated the terms of probation. 

If you did not violate the terms of DUI probation, nothing happens. Instead, you continue with your probation period as if the hearing did not occur. 

However, if the judge finds that you violated the terms of DUI probation, the judge can take one of three actions:

  • Revoke summary probation 
  • Modify the terms of your summary probation to make them stricter
  • Reinstate summary probation with the same conditions and terms

If the judge revokes summary probation, you must serve your full jail or prison sentence for the first DUI conviction. Your second DUI offense proceeds and is impacted by the first DUI conviction, but not by the outcome of a probation violation hearing. 

How Does DUI Probation Affect a Second DUI Offense?

The DUI probation does not impact the sentencing for a second DUI offense. However, having a prior DUI conviction on your record enhances the sentence for the second DUI offense.

Generally, the penalties for a misdemeanor first-time DUI offense include:

  • Assessments and fines up to $1,000
  • Up to six months in jail (may qualify for work furlough or work release)
  • Loss of driving privileges for six months
  • Installation of an ignition interlock device for six months
  • Attending DUI school for three months
  • Three to five years of summary (informal) probation

You may or may not receive all of the above penalties or the maximum penalties. A California DUI attorney can argue for lower sentences based on the facts of the case. 

However, a second misdemeanor DUI conviction within ten years carries more severe penalties. The potential penalties for a second-time DUI conviction include:

  • Assessments and fines up to $2,000
  • Up to one year in jail, with a minimum jail sentence of 96 hours
  • Three to five years of summary probation
  • 18 to 30 months attendance at a court-approved DUI school
  • Installation of an ignition interlock device (IID) for up to a year
  • Loss of driving privileges for two years (may apply for a restricted license after one year)

The same terms of probation generally apply to the second DUI conviction. Additionally, the judge may order the person to attend a drug and alcohol treatment program, pay restitution if the DUI involved an accident, and participate in Alcoholics Anonymous, Narcotics Anonymous, or a Mothers Against Drunk Driving victim impact panel.

What Are My Choices if I Get a Second DUI While on Probation for Driving Under the Influence? 

You can plead guilty or no contest to the DUI charges and accept the court’s sentence. Alternatively, you can enter a plea agreement with the prosecution. However, since this is your second DUI conviction, the plea agreement’s terms may not be as favorable. A California DUI lawyer can help you negotiate the best terms.

On the other hand, you may plead not guilty and decide to fight the DUI charges. Your attorney investigates the circumstances of your drunk driving arrest. In some cases, police misconduct could result in a motion to suppress evidence. The evidence against you could be thrown out if you win at the motion hearing, making it very difficult for the prosecution to win the case.

A DUI lawyer may challenge the results of a breathalyzer or chemical test. Your BAC level may have been elevated because of your diet, a health condition, or malfunctioning machine. In some cases, the lab technician or police officer could have made a mistake collecting or testing the sample.

Even if you cannot win the case at trial, having a California DUI defense attorney investigate the case can help during plea negotiations. Your attorney may uncover weaknesses in the prosecution’s case or evidence that would be favorable to you during a trial. Your lawyer uses this information to negotiate terms of a plea bargain that are more favorable than the sentence you would receive if you plead guilty in open court. 

A plea agreement may include reduced charges that would not count against you for future DUI convictions. It could also include no jail time or less jail time with reduced fines. The terms of the plea agreement depend on the facts of your case. 

Prosecutors are often more willing to negotiate better terms with a criminal defense lawyer than with a person representing themselves. The prosecutor knows most people are unfamiliar with DUI laws and court procedures. However, the prosecutor cannot take advantage of an experienced DUI attorney who is willing to go to court to protect the client’s best interest. 

The best way to avoid a probation violation is to avoid driving after consuming any amount of alcohol. Also, talk to your DUI lawyer for the first case. Ensure you understand all the terms of your DUI probation. Some people violate probation because they are not clear on the terms of probation. Understanding what probation entails can help you avoid violating DUI probation. 

As soon as possible after a DUI arrest, contact a California DUI defense lawyer. An attorney advises you about your legal rights and the things to avoid doing that could hurt your chance of beating the DUI charges. Your attorney also helps you through the probation violation hearing and deals with the new drunk driving charges.

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