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What are Sentence Enhancements and How Can They Affect My California DUI Case?
The DUI penalties for a conviction of driving under the influence in California can be severe. Even a first-time DUI misdemeanor could carry jail time for a DUI conviction. Sentence enhancements could result in the penalties for a first-time DUI conviction being as harsh as the penalties for felony drunk driving.
What Are Sentence Enhancements?
A sentence enhancement is an additional punishment for a conviction of driving under the influence. The courts add the additional punishment to the penalties usually ordered for a DUI conviction.
The sentence enhancements could result in:
- More days in jail or a prison sentence
- A longer period for driver’s license suspension or revocation
- Mandatory installation of ignition interlock devices
- Higher fines, assessments, and fees
- Longer time spent in DUI school or a drug/alcohol treatment program
- Mandatory restitution payments to victims
- Vehicle impoundment for longer periods
- Longer terms of DUI probation (summary probation)
- Extended periods of community service
- Enhanced conditions of probation
- Determining whether a person can receive probation or must serve time in jail
One of the worst results of sentence enhancements is the additional criminal charges you could face. If the police charge you with additional crimes associated with driving under the influence, those offenses are sentenced separately from the drunk driving charge. Therefore, you could receive multiple criminal sentences that could add up to 10, 20, or more years in prison and thousands of dollars in fines, assessments, and restitution.
What is Considered Driving Under the Influence in California?
Drunk driving can be charged under one of two sections in California Vehicle Code §23152. Therefore, you could be charged with both offenses.
The first DUI offense is operating a motor vehicle under the influence of alcohol. It does not state that you have to have a blood alcohol level above the legal limit. It only prohibits people from driving under the influence of alcohol.
The second charge is driving a motor vehicle with a BAC of .08% or higher. You are presumed to be unable to operate a motor vehicle safely if your BAC is above the legal limit.
Another part of code section 23152 makes it illegal to drive under the influence of drugs. As a result, the police could charge you with driving under the influence of both alcohol and drugs.
What Are Common Sentence Enhancements for California DUI Cases?
The circumstances of your DUI arrest could result in enhanced penalties. Aggravating circumstances that often result in harsher punishments for drunk driving include:
Prior DUI Convictions on Your Record
DUI convictions are priorable offenses. That means every DUI conviction you have within the past ten years counts toward your current drunk driving conviction. If the DUI is a felony offense, it does not matter how old the conviction is on your record. Felony DUI convictions always count against you.
Generally, the penalties for a first-time DUI conviction without aggravating circumstances are:
- Up to six months in county jail (usually no time with a clean criminal record and driving record)
- Fines between $390 and $1,000
- Summary probation from three to five years
- A three or nine-month alcohol/drug education program
- Six to ten months suspended driving privileges that generally can be converted to a restricted driver’s license or drive without restrictions by installing an ignition interlock device (IID)
However, if you have prior DUI convictions on your driving record, the penalties for another drunk driving offense increase. You face additional time in jail, higher fines, longer driver’s license suspension, mandatory DUI school, and longer periods of summary probation. In addition, the judge could impose additional penalties at his discretion.
Excessive Speeding and Reckless Driving While Under the Influence
California Vehicle Code §23582 enhances the sentence for a DUI conviction if the person was speeding and recklessly driving while under the influence. The sentence enhancement applies if the driver was:
- Convicted of driving under the influence, a BAC of .08% or higher, or DUI causing injury; AND,
- The driver exceeded the speed limit by 30 mph on the freeway or 20 mph on other streets; AND,
- Drove in a reckless manner.
A driver who was speeding and driving recklessly must attend DUI school (i.e., drug and/or alcohol education program). Additionally, the person faces 60 days more in jail for reckless driving and speeding while intoxicated.
Even if the court grants probation on the DUI charge, you still must serve the 60 days in jail for the enhancement. Also, if this is the first DUI conviction, you must complete DUI school.
Causing Collision, Injury, or Death While Driving Under the Influence
If you cause a collision while driving under the influence, the court or prosecutor may want community service or community labor as a probationary term. Another probationary term will be to compensate the victim for any economic losses.
When you cause injury to another person, you can be charged under Vehicle code 23153- DUI Causing Injury. This can be a misdemeanor or felony depending on the facts of the case.
Furthermore, the police officers or prosecutor could charge you with other crimes related to the DUI accident. For example, you could be charged with vehicular manslaughter while intoxicated if the DUI accident results in the death of another person. In addition, you could be charged with felony hit and run if you leave the accident scene.
Having a High Blood Alcohol Content Level
The legal limit for drunk driving charges nationwide is .08%. Therefore, if your BAC is .08% or above, the law presumes that the alcohol in your system impairs your driving abilities. However, California Vehicle Code §23578 allows judges to impose enhanced penalties when a person is arrested with a BAC level of .15% or higher.
Refusing to Take a Chemical Test after a DUI Arrest
California’s implied consent law requires drivers to submit to chemical testing for BAC levels after being arrested on drunk driving charges. CVC §23578 also states that judges may impose enhanced sentences if a person refuses to take a chemical breath or urine test after a DUI arrest.
You can refuse a preliminary alcohol screening (PAS) test without penalty. A PAS is a roadside breathalyzer test. However, refusing an evidentiary chemical test (post-DUI arrest BAC test) can result in enhanced penalties for a DUI conviction and other punishments.
Under this code section, the law states that the court “shall consider” a test refusal or excess BAC as factors which “may justify” an enhanced sentence. Therefore, it is in the judge’s discretion whether or not to increase the penalties for these two aggravating circumstances.
Drunk Driving with a Child Under 14 Years of Age in the Vehicle
Driving with a child in the car can result in enhanced penalties under California Vehicle Code §23572. The penalties under this code section are mandatory. Therefore, if the state proves you were driving under the influence with a child under 14 years of age in the vehicle, you will be sentenced to the harsher punishment.
In addition to the penalties for driving under the influence, you face additional jail time added to your sentence:
- 48 hours for a DUI first offense
- 10 days for a DUI second offense
- 30 days for a DUI third offense
- 90 days for a DUI fourth offense
Furthermore, you could also face child endangerment charges for having a minor in the vehicle while intoxicated. Child endangerment is a wobbler offense. Therefore, you could face a misdemeanor or felony charge.
For a misdemeanor charge, you might serve up to one year in jail and pay a $1,000 fine. A felony charge increases your fine up to $190,000 with up to six years in state prison.
Underage Drinking and Driving
California has two DUI laws that specifically target underage drivers who consume alcohol and drive:
- Underage Driving with BAC of .05% or higher (CVC §23140)
- California’s Zero Tolerance Law for Underage Drivers (CVC §23136)
They may also be charged with either of the above charges, which carry separate penalties for a conviction. Underage drivers charged with DUI face significant sentence enhancements. The Zero Tolerance Law is a civil charge that carries a mandatory one-year driver’s license suspension for a first offense.
Furthermore, anyone under the age of 21 years is presumed to give consent to a PAS test (roadside breathalyzer) when police officers detain them for suspected drunk driving. Also, an underage driver could be charged with any DUI offenses that apply to all drivers. Therefore, a drunk underage driver could face substantial sentence enhancements, depending on the circumstances of the arrest and the charges.
Should I Contact a California DUI Defense Attorney?
Most DUI attorneys in California offer free consultations. Therefore, it does not cost you anything to talk with a California DUI lawyer. DUI convictions can have long-term consequences on many aspects of your life. Instead of pleading guilty to a DUI offense, talk with a criminal defense attorney about options for fighting DUI charges.
DUI sentence enhancements can be severe. Don’t let a prosecutor push you into accepting a plea deal that is not good for you. Instead, make sure you understand your legal rights from a trusted advocate for people charged with crimes in California.
What Happens at a DUI Pretrial?
After an arrest for driving under the influence in California, your DUI case begins to wind through the criminal courts. The pre-trial phase of DUI cases generally lasts the longest of all phases. Your California DUI defense lawyer investigates the DUI charges against you during the pre-trial phase of your case.
A DUI investigation may include several phases, such as:
- Searching for videos of the DUI stop and DUI arrest from dashcams, police officer body cams, traffic cameras, and nearby surveillance cameras
- Interviewing witnesses and taking statements from anyone involved in the case
- Subpoenaing records from the blood alcohol tests performed after your DUI arrest
- Obtaining copies of police reports to analyze the contents of the reports and information gathered by police officers
- Consulting expert witnesses, when necessary, concerning potential defenses to BAC results
The evidence gathered during the DUI pre-trial phase shapes the DUI defense strategy developed by your CA DUI attorney.
Court Schedules Pre-Trial Conferences and a Pre-Trial Hearing
As the case continues toward a jury trial or a bench trial, the judge assigned to the case may schedule one or more pretrial conferences and pre-trial hearings. Judges use pre-trial conferences to determine the status of the case and discourage parties from wasting time during the pre-trial phase. In addition, the judge may use a pre-trial conference to expedite the disposition of the case.
Defense lawyers and prosecutors may file one or more motions with the court during the pre-trial phase. These pre-trial motions may deal with various issues related to the case. The court schedules pre-trial hearings for the judge to hear each side’s argument to make a ruling in the case.
All parties generally attend a pre-trial hearing, including the defendant. The primary purpose of the hearing is to dispose of the matter in question and advance the case to trial or other disposition. Pre-trial hearings are not used to determine a defendant’s innocence or guilt. These hearings center on questions of law that the judge needs to decide before a trial begins.
Examples of pre-trial motions include, but are not limited to:
Motion to Suppress
If law enforcement officers or the prosecution obtained any evidence through illegal means, that evidence might be inadmissible at your trial. A motion to suppress evidence requests that the court review specific evidence to determine if it can be used at trial.
If the judge determines the evidence was illegally obtained or unjustly prejudices you, the judge can throw out the evidence. When evidence is inadmissible, the prosecution cannot introduce it in court. In other words, the jury never hears the evidence.
Therefore, the prosecution may not have sufficient evidence to convict you of the DUI charges. Winning a motion to suppress evidence at a pre-trial hearing may mean that the state drops the charges against you.
Probable Cause Hearing
Probable cause is required under the Fourth Amendment to the United States Constitution. Police officers must have probable cause to initiate a DUI stop or make a DUI arrest. Lack of probable cause could result in the charges being dismissed.
Generally, a police officer must have a reasonable suspicion that a person is committing a crime or a crime has taken place to pull over a motorist. In other words, the police officer must have a reason for pulling over the driver to initiate a traffic stop. For example, the person was speeding or failed to use a turn signal.
Your attorney may attack probable cause in several ways. First, your attorney could argue that the police officer arrested you even though you passed all the field sobriety tests and did not show any signs of intoxication. He could argue that you were obeying the traffic laws and were not driving erratically when the police officer stopped you.
A Pitchess motion allows your attorney to learn more about the arresting officer’s history on the job by inspecting the officer’s personnel file. Information obtained about prior acts of police misconduct could be used in your case to support allegations of wrongdoing.
For example, your attorney may suspect that the police officer used excessive force or filed a false police report. Other information that could be useful includes records showing that the officer racially profiles suspects or falsified evidence.
Motion to Dismiss
There may be grounds to dismiss the DUI charges. If so, your lawyer files a motion to dismiss. The judge hearings the evidence presented by your lawyer and the prosecution’s arguments. After considering the matter, the judge could dismiss your DUI case or order that the case proceeds to trial.
What Happens After the Court Finishes All Pre-Trial Hearings?
The prosecution may offer you a plea bargain before your trial begins. If you plead guilty to the DUI charges, the prosecution agrees to a reduced charge and/or less harsh penalties. Before accepting a plea bargain, you should consider several important factors:
- You could get a reduced sentence that might not include jail time and other penalties that could cause you to miss work, such as community service and DUI school
- You might avoid a priorable offense if the prosecutor is willing to reduce the DUI charges to dry reckless or a speed ex
- You could avoid a mandatory ignition interlock device (IID) which can be costly and embarrassing
- You avoid the stigma of going to court for a DUI trial
- You might avoid the severe impacts a DUI conviction causes on car insurance rates
- Pleading down the charges could have less of an impact on professional licenses
- You might avoid losing your driving privileges or shorten the period of a suspended driver’s license
- The fees, fines, and assessments may be much lower if you accept a plea agreement
- Accepting a plea agreement takes away the uncertainty of a trial and the risk the judge could impose harsher penalties for a DUI conviction
However, you also need to consider that a plea agreement could still result in significant penalties and a priorable offense on your driving record. The facts and circumstances of your case dictate whether a plea agreement is the best option for dealing with a drunk driving charge. Your California DUI defense attorney can help you evaluate the pros and cons to make the best decision for your situation.
Going to Trial on DUI Charges in California
If the court does not dismiss the DUI case during pre-trial motions and you do not accept a plea deal, your case proceeds to trial. Both sides present evidence to the jury. The judge explains the law to the jury members, and the jury members return with a verdict.
Your CA DUI attorney may present one or more defenses to the drunk driving charges. Potential DUI defenses include, but are not limited to:
- Attacking the results of the BAC test results as inadequate because the machines were defective, inadequately maintained, or incorrectly calibrated
- Alleging that the police officers failed to administer the field sobriety tests correctly or mishandled the chemical test samples
- The lab performed the blood test with fermented blood
- Health conditions or illnesses caused DUI breath test errors, such as GERD, acid reflux, diabetes, etc.
- A high-protein diet resulted in falsely high BAC levels
- Your blood alcohol continued to rise after your DUI arrest, which resulted in a high BAC level that was not present when the police officers stopped you for suspected driving under the influence
- Title 17 violations related to the requirements for collecting, storing, and analyzing samples for chemical tests
- You have physical impairments or medical conditions that can cause you to appear intoxicated, such as allergies (red/watery eyes), diabetes (slurred speech from a sugar low), epilepsy, brain damage, etc.
- The officers based their probable cause for an arrest on non-standardized field sobriety tests
- Environmental conditions caused inaccurate field sobriety test results
- Your BAC was not over the legal limit, and the prosecution failed to prove your driving abilities were impaired by the amount of alcohol in your system
- The DUI checkpoint did not comply with current laws regulating police-organized drunk driving checkpoints
- You were not driving the vehicle at the time of the DUI stop
The defense strategy used at a California DUI trial depends on the facts and circumstances of the case. Being honest with your attorney is crucial. The more facts your attorney knows about what happened before, during, and after the DUI arrest can help your lawyer build a better defense for trial. It is not wise to talk with the police after a DUI arrest. You cannot talk your way out of a drunk driving charge. Anything you say can be used as evidence in your DUI trial.
Instead, it is best to remain silent except for asking for a criminal defense attorney. A California DUI defense lawyer explains your options for plea bargaining or going to court. The best way to protect your legal rights is to have an experienced DUI attorney handling your case. Most DUI law firms offer free consultations.
Understanding CA Penal Code 21A – “Attempted DUI”
Driving under the influence can result in a serious criminal charge in California. However, you do not have to drive an automobile to be charged with a crime. Your intent to drive while intoxicated could result in fines and jail time.
An attempt to commit a crime is defined as taking steps to commit the crime even though you are unsuccessful. Under California Penal Coe 21A, an attempt to commit a crime has two elements:
- A specific intent to commit the crime
- A direct step toward committing the crime
An attempted DUI is less serious than driving under the influence. However, it is a criminal charge, and you should treat the matter seriously. Because you could go to jail, it is wise to seek legal counsel from an experienced California DUI defense lawyer.
What is Considered Intent to Commit DUI?
Intent means that you were drunk and intended to operate a motor vehicle in that condition. For example, a police officer detained you after you got behind the wheel but before you could drive away. Another example would be stating that you would drive home after drinking alcohol at a friend’s house or a bar.
Any indication you give that you will drive a vehicle after consuming alcohol could be construed as intent to commit DUI. For example, picking up your car keys and heading toward your vehicle could qualify as intent to commit DUI.
What is Considered Attempt to Commit DUI?
An attempt must be a direct action you take to drive under the influence of alcohol or drugs. It goes beyond merely stating that you intend to drive while intoxicated.
For example, you open your car door to enter the vehicle or walk toward your car with your keys. At that point, you have both intent and a direct step to commit DUI. Intent and attempt can occur together, but intent without a direct step toward committing the crime would not be sufficient to convict under Penal Code 21A.
When Do Police Officers Charge a Person with Attempted DUI?
Attempted DUI is generally used when a person is found drunk in a parked vehicle or walking toward a parked vehicle. The prosecution may also offer attempted DUI as part of a plea bargain.
What is the Sentence for Attempted DUI?
California Penal Code 664 states that the penalties for an attempted crime are one-half of the potential fine and one-half of the potential jail sentence for the actual crime. Therefore, if you are convicted of attempted DUI, the court orders you to pay one-half of the fine you would have paid had you been convicted of DUI. In addition, you also serve one-half of the jail sentence for a DUI conviction.
However, there is no requirement to suspend your driver’s license or attend DUI school. In addition, attempted DUI will not count as a prior DUI offense if the police arrest you for drunk driving in the future. Therefore, negotiating a plea deal for attempted DUI is much better than being convicted of drunk driving in California.
Are There Defenses to Attempted DUI in California?
You could raise several defenses to attempted DUI charges in California. Some defenses your attorney may argue include:
- You were not intoxicated at the time of the arrest
- You did not intend to operate a vehicle under the influence of alcohol
- There is no evidence of a direct step toward driving while intoxicated
- You abandoned your plan to drive your vehicle after consuming alcohol or taking drugs
- The prosecution has insufficient evidence to prove both intent and attempt
- The arresting officer violated your civil rights by arresting you without probable cause
A California DUI lawyer examines all evidence against you to determine the best defense strategy to fight attempted DUI charges. In some cases, the best defense may be negotiating a plea bargain.
However, do not tell the police officers or the prosecution even if you believe you are guilty. The state has the burden of proving your guilt, so do not make it easier by confessing. Instead, talk with a California DUI attorney before making statements or accepting a plea agreement.
What is Considered Drunk Driving Under California Law?
California Vehicle Code §23152 defines drunk driving as:
- Being under the influence of an alcoholic beverage while driving a vehicle
- Having a blood alcohol content (BAC) of .08% or higher while driving a vehicle
The law presumes you are too drunk to operate a motor vehicle safely when your BAC is .08% or higher. Therefore, you are arrested for DUI if you agree to take a pre-arrest breathalyzer test and your BAC is .08% or more.
However, the police officers may arrest you for driving under the influence if they have probable cause without administering a breathalyzer test. The police officers may base their decision on the results of field sobriety tests or FSTs. Standardized field sobriety tests include:
- Walk and Turn Test
- Horizontal Gaze Nystagmus Test
- One-Leg Stand Test
You can refuse to take the pre-arrest FSTs and breathalyzers in California without penalty. However, California’s implied consent law requires you to submit to chemical testing for blood alcohol after being arrested for drunk driving.
The code states that refusal to submit to a chemical test can result in a fine and mandatory imprisonment if you are convicted of drunk driving. Furthermore, refusal to submit to a post-arrest chemical test results in an administrative suspension of your driver’s license for at least one year or two years if the refusal is within ten years of a prior DUI conviction.
What Are the Penalties for Driving Under the Influence in California?
The potential penalties for a DUI conviction depend on your prior DUI history and the circumstances of your arrest. DUIs are priorable offenses in California. If you have a previous DUI conviction within ten years, the severity of the punishment for your current drunk driving conviction increases. Felony DUI convictions count regardless of when the court convicted you of felony drunk driving.
The potential penalties for a misdemeanor DUI charge include:
- Fines and assessments
- Incarceration in county jail or state prison
- Court-approved alcohol or drug education program
- Three to five years summary (informal) probation
- Driver’s license suspension
- Up to 30 months in California DUI school
- Mandatory installation of an ignition interlock device (IID)
- Designation as a habitual traffic offender for repeat DUI convictions
- Restitution to injured parties
- Strike against your record under California’s Three Strike’s Law for a felony DUI
Additionally, if aggravating circumstances are present when the police arrest you for DUI, the penalties for a conviction increase. Aggravating circumstances for a DUI conviction include:
- Causing a DUI accident that results in injury or death of another person
- Excessive speeding while driving under the influence
- High blood alcohol content of .15% or more
- Refusing to submit to a chemical blood test after a DUI arrest
- Being under the age of 21 years at the time of the DUI arrest
- Having a child under the age of 14 years in the car while driving under the influence
Aggravating circumstances enhance the penalties for a DUI conviction in California. However, you could also face additional criminal charges for some aggravated offenses.
For example, you could be charged with underage drinking and driving or child endangerment. Those charges would carry additional penalties for a conviction.
Fighting DUI Charges in California
The consequences of a DUI conviction go beyond jail time and fines. A drunk driving conviction causes your car insurance rates to increase. You could lose your job because you serve time in jail or have a DUI on your record. A DUI conviction could make it more difficult to find employment in the future if driving is required as part of your job duties.
You can fight DUI charges instead of pleading guilty. A California DUI defense lawyer investigates your DUI arrest and the steps taken after your arrest to determine if errors or police misconduct occurred. Depending on the facts of your case, a DUI lawyer could raise one or more defenses, including:
- Challenging the results of the DUI chemical test
- Alleging the police officers lacked probable cause for a DUI stop or DUI arrest
- Presenting evidence that a medical condition caused you to appear drunk, such as a brain injury, diabetes, or epilepsy
- A medical condition caused a false BAC level, including GERD, acid reflux, or diabetes
- Challenging the accuracy of field sobriety tests
- Alleging a failure to maintain the chain of custody for chemical tests
- Arguing that you were not driving or operating a motor vehicle at the time of your arrest
- Arguing that your ability to operate a motor vehicle was not impaired at the time of your arrest
Accepting a plea deal without talking to a California DUI attorney is not in your best interest. The best way to protect your rights is to understand the law and potential defenses to DUI. A prosecutor is not a trusted source for legal advice since it is their job to convict you of a crime.
Instead, talk with a DUI lawyer before accepting a plea deal or pleading guilty to drunk driving charges. Even if you cannot avoid a conviction, having a lawyer on your side can help you obtain a more favorable plea agreement that could avoid jail time for DUI charges.
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.
What Are the Consequences for Violating the Brady Rule?
Criminal cases in the United States are adversarial. The prosecution has the burden of proving that the defendant is guilty beyond a reasonable doubt. The defendant has the right to present a vigorous defense in court. Each party presents evidence for the jury or judge to consider supporting their arguments and accusations.
An exception to the adversarial role of a prosecutor is the Brady Rule. The prosecution in a DUI case must disclose specific types of evidence to the defendant. However, some prosecutors ignore this rule or claim they were not aware they had specific evidence in their possession. A violation of the Brady Rule could have several favorable results for the defendant, including setting aside a guilty verdict.
What is the Brady Rule?
The Brady Rule came out of the Brady v. Maryland case decided by the United States Supreme Court. The court held that a prosecutor has a duty to disclose favorable evidence to the defendants under the Fifth Amendment and Fourteenth Amendment upon request. Any exculpatory evidence or material that pertains to the defendant’s guilt or punishment must be turned over to the defense.
Exculpatory evidence is evidence that would be favorable to the defendant. The evidence may help prove the defendant’s innocence, create reasonable doubt, or damage the prosecution’s case. Failing to comply with the rule is known as a Brady violation.
What is a Brady Violation?
A Brady violation has three components:
- The prosecution must have suppressed the information
- The suppressed information must have been favorable to the defendant
- The defendant was prejudiced because of the suppression of evidence
The Brady decision dealt with due process in the judicial system. The court made it clear that the prosecution has a duty to hand over certain information and evidence to the defense. Failing to do so violated the defendant’s right to due process.
Suppression of Evidence by the Prosecution
The first element of the Brady Rule focuses on the prosecution’s conduct in suppressing the evidence. Willfully and intentionally failing to disclose information and evidence favorable to the defense violates the Brady Rule.
However, the prosecution could violate the Brady Rule even if it was not aware that it had favorable information in its possession. Any favorable evidence the prosecution has must be disclosed to the defense. Therefore, a prosecutor who forgets to turn over information or fails to review all evidence before trial to determine if the evidence is exculpatory could be guilty of a Brady violation.
Favorable Evidence Includes All Evidence
Brady evidence generally refers to tangible items, such as documents and items in the prosecution’s possession. Brady information refers to any information the prosecution gains from interviewing witnesses or through an investigation.
Some prosecutors try to avoid the Brady Rule by not writing down information. Therefore, many courts use the term Brady information instead of Brady evidence to make it clear to the prosecution that it has a duty to disclose all favorable information, regardless of how the information was obtained or the information’s format.
Furthermore, the disclosure of information required under the Brady Rule is not limited to admissible evidence. The evidence could be considered Brady Rule information if the evidence could lead to admissible evidence.
Undermining the Confidence in the Outcome of the Trial
Deciding whether a Brady violation prejudiced the defendant can be the most difficult element of a Brady violation. The court should not entertain arguments from the prosecution that other evidence would have been sufficient to convict the defendant, or the outcome of the case would have been the same.
The court must conduct a detailed analysis of the factual record to determine whether the prosecutor violated the Brady Rule. If the confidence in the trial’s outcome could be questioned because of the failure to disclose Brady evidence, the court should rule in favor of the defendant.
Examples of Brady Evidence in a DUI Case in California
There is no set rule for how a prosecutor must comply with the Brady Rule. Generally, the prosecution sends evidence and information to the defense attorney. However, the office may “bury” Brady Rule documents within the unfavorable evidence. Therefore, an experienced DUI defense lawyer thoroughly reviews each document and each piece of evidence to determine whether the evidence could favor the defendant.
Generally, Brady evidence includes, but is not limited to:
- Scientific reports (i.e., reports that indicate breathalyzer tests based on partition ratios may not always be accurate)
- Pre-trial witness statements that contradict what the individuals testified to at trial
- Physical evidence, including items seized during a DUI stop, such as drug paraphernalia, bottles, etc.
- Results of a blood alcohol test (BAC) that were contaminated or mishandled
- Breaches in the chain of evidence for chemical tests
- Available evidence in a criminal case, including fingerprints, photographs, recordings, videos, physical evidence, cell phone records, etc.
Blood test results can be extremely important when accused of driving under the influence instead of driving with a BAC level above the legal limit (.08% or higher). A low BAC level could favor the defendant because the prosecution needs to prevent evidence that convinces the jury members that the defendant’s ability to operate a motor vehicle was “impaired” by the alcohol.
When Can I Bring a Brady Claim for My DUI Case in California?
Brady violations may be discovered after the trial of the case. The defendant must file a post-conviction motion asking the court to vacate the conviction based upon a Brady violation. However, some defense teams discover Brady violations during the trial. If so, they can file a motion with the court to decide the issue.
If the defense believes the prosecution is hiding evidence that would be disclosed under the Brady Rule, it can ask the court for an in camera examination of the evidence. That means the judge examines the evidence in private to decide whether the evidence is subject to the Brady Rule.
In either case, Brady motions and hearings can be complicated court proceedings. You need an experienced California DUI defense lawyer to fight to ensure the prosecution follows the rules throughout the case.
What Are the Outcomes of a Brady Rule Violation in a California DUI Case?
There are several potential outcomes of violating the Brady Rule. First, the judge could issue a mistrial if he discovers the prosecutor violated the Brady Rule during a trial. Second, the judge could rule that the suppressed evidence is not admissible in court. Third, the judge could dismiss the criminal charges for Brady violations.
If the defendant has been convicted, the court could vacate or overturn the conviction. However, the court could also allow the conviction to stand, but punish the prosecution for violating the Brady Rule. California courts treat Brady violations seriously.
Defending DUI Charges in California Courts
A California DUI defense lawyer investigates all aspects of your drunk driving charges from the DUI stop through the DUI arrest. Preparing for the trial involves requesting Brady materials and information. Then, the attorney carefully analyzes the evidence to determine how the evidence impacts your case.
However, defending a DUI charge involves much more than watching for violations of the Brady Rule. Prosecution and police misconduct can take many forms. A California DUI lawyer reviews the police actions to determine if they violated your civil rights. For example, did the police officers have reasonable suspicion to pull you over for drunk driving? Did the officers have probable cause for an arrest?
If law enforcement agents violated your civil rights, your attorney might file a motion to suppress evidence or dismiss the case. In addition to procedural errors and police misconduct, there are other defenses to DUI charges in California.
Other potential DUI defenses include, but are not limited to:
- The alcohol continued to increase in your bloodstream after the police pulled you over, resulting in a high BAC
- You have a medical condition that made you appear intoxicated or resulted in a false BAC level, such as diabetes, epilepsy, GERD, brain damage, or acid reflux
- The breathalyzer machine was improperly calibrated or malfunctioned because of a defect or lack of maintenance
- The police officers used non-standardized field sobriety tests or provided incorrect instructions for standardized FSTs
- Environmental factors tainted the field sobriety tests
- You were not driving the motor vehicle (i.e., you were asleep in your car)
- Your blood sample fermented, resulting in inaccurate blood tests
A drunk driving conviction can result in numerous penalties. You could be ordered to pay a high fine and serve time in jail or state prison. The judge may also suspend your driver’s license and order you to attend DUI school or a drug/alcohol treatment program. You could also have three to five years of summary probation.
The stakes are high when you face charges of driving under the influence. For that reason, it is best not to rely on advice from police officers or the prosecutor. They believe you are guilty and will use whatever you say against you.
Instead, it is best to remain silent except for asking for a criminal defense lawyer. Hiring a California DUI defense attorney gives you a better chance of beating the DUI charges or negotiating a favorable plea agreement.