Second DUI Guide

A basic guide for people charged with their second DUI. Learn about the processes and events involved in a second DUI case.

Overview

The five parts of a second DUI case are: arrest, DMV hearing, court hearings, conviction, and sentencing. After an arrest, law enforcement sends notice of the arrest to the DMV on form DS 367. Once the DMV receives that form, they will take steps to suspend your license unless you contact them to contest the suspension within 10 days.

Law enforcement also sends a copy of their arrest report to local prosecutors. Prosecutors review the report and decide which criminal charges to file. If the defendant schedules a hearing within 10 days, the DMV mails a copy of the report to the defendant. The prosecutor also provides a copy of the report to the defendant’s attorney after charges are filed. Law enforcement does not provide a copy of the report to the defendant until the criminal case is resolved.



DUI Investigation and Arrest

Officers usually pull DUI suspects over for poor driving or speeding. However, they also find DUI suspects using checkpoints, when responding to accidents, and when they locate parked vehicles. Once officers are close enough to smell alcohol or observe symptoms of alcohol (red eyes, slurred speech), they have enough suspicion to initiate a DUI investigation.

Officers typically ask DUI suspects to perform field sobriety tests during the DUI Investigation. Common field sobriety tests include: walk the line, stand on one leg, follow the finger, and count to 30. Another common sobriety test is the preliminary alcohol screening device, which takes a breath sample. You may refuse all tests prior to your arrest, unless you are on parole or probation.

Once law enforcement has placed you under arrested, you must provide a sample of your blood, breath, or urine for purposes of determining your blood alcohol content (BAC). If you refuse, the DMV can suspend your license for one year under Vehicle Code section 23612.

Documentation

When you are arrested, law enforcement will take your driver’s license and give you a temporary paper license that is good for 30 days. The temporary license has information on how to contact the DMV to prevent your license from being suspended. Law enforcement also provides a citation which includes a future court date, the charges, the arresting officer and their agency, and the citation number.

Charges

For a second DUI where no injury occurred, there are two charges on the citation. Both charges are misdemeanor DUI charges under sections and (a) and (b) Vehicle Code section 23152. Vehicle Code sections 23152(a) makes it illegal to drive “under the influence.” Vehicle Code section 23152(b) makes it illegal to drive with over .08% BAC. The defendant can be charged with both counts but can only be convicted and sentenced to one count. If the driver is arrested for driving under the influence of drugs, they are typically charged with one count (Vehicle Code section 23152(f)). If someone (other than the driver) is injured as a result of driving under the influence, the driver can be charged with felony driving under the influence under Vehicle Code section 23153.

DMV Hearing

You must contact the DMV and request a hearing within 10 days of your DUI arrest or the DMV will suspend your license. The issues at the DMV Hearing are 1) whether you were driving a vehicle; 2) whether your blood alcohol was over .08% when you were driving; 3) whether the officer had probable cause to arrest your for driving under the influence. You can contest the suspension of your license by presenting evidence, cross-examining witnesses, and testifying. Hearings are typically conducted over the phone, but in-person hearing are also available. It is extremely likely that the DMV will decide to suspend your driver’s license following that hearing.

License Suspension by DMV for DUI Arrest

For a second DUI, the DMV suspends the driver’s license for one year.

Court Hearings

If you bail out of jail or are released on your Own Recognizance, your first court date will be in a few weeks to several months down the road. The jail will give you paperwork with your court date when you are released. If the jail does not release you on OR, you will have a court date within 3 days of your arrest. At that hearing, the Court will consider whether they will release you on your Own Recognizance, change your bail amount, or release you on pre-trial supervision. Under pre-trial supervision, the jail releases the defendant but the defendant must follow specific restrictions until their case ends.

It is common for multiple Court Hearings to occur before the criminal case is resolved. The first hearing is called the arraignment. At the arraignment, the defendant enters a plea and the Court advises the defendant of the charges and their constitutional rights. If the defendant enters a not guilty plea, the case continues to pre-trial hearings, followed by trial. During the pre-trial phase of the case, the prosecutor and defense counsel discuss settlement of the case and prepare for trial.

Settling the Case

Before the first court date, the defendant can attend AA meetings, enroll in a recovery program, or wear a SCRAM alcohol monitor. These methods are regularly used and accepted by the Court. The Court and prosecutor typically see these as favorable factors when deciding the outcome of a case.

If your blood alcohol content was at or near .08%, the prosecutor may be willing to resolve your case for a wet and reckless, or dry and reckless charge.

Fighting the Case

You may fight your case by contesting the reason for a law enforcement stop, detention, arrest, and search. This is commonly referred to as a motion to suppress under Penal Code section 1538.5. You may also take your case to trial. At trial, the key issues will be 1) whether the defendant was the driver of the vehicle and 2) whether their blood alcohol was over .08% (or .01% if under 21) at the time they were driving.

DUI Conviction

A conviction occurs when the defendant enters a plea or is found guilty. A plea can be based on a plea agreement with the prosecutor or an “open” plea to the Court. Under an “open” plea, the defendant pleads to all charges and the Judge determines the sentence. At trial, the judge (court trial) or jurors (jury trial) determine whether the defendant is guilty.

DUI Sentencing

If the defendant enters a plea agreement, the Court typically sentences the defendant according to the terms of the plea deal. If a defendant is convicted by a judge or jury after a trial, the judge will determine the sentence. The judge also determines the sentence for defendants who plead “open” to the court. The judge may accept input on the sentence from the prosecutor, the defense attorney, the victims (if any), and any relevant agencies (IE: probation, law enforcement).

Maximum and Minimum Sentence

For a misdemeanor second DUI (without injury), the maximum sentence is 1 year in jail and a fine of $1,000. The minimum sentence is 90 days in jail and a fine of $390. A misdemeanor second DUI with injury is punishable by a maximum fine of $5,000 and 120 days to one year in jail. The punishment for a second felony DUI is 16 months, 2 years, or 3 years in prison. The judge may suspend the jail or prison sentence and place the defendant on probation. This allows the defendant to avoid or limit their actual jail time, provided they comply with the terms of probation for the duration of probation (3+ years).

Jail Time

Many counties in California allow a defendant to serve jail time via electronic monitoring or community service. These programs are typically referred to as “alternative custody” programs. However, some DUI convictions require actual jail time, even if the court places the defendant on probation.

ChargeMandatory Jail Time
2nd DUI (Vehicle Code section 23542)96 hours
2nd DUI with injury (Vehicle Code section 23562)120 days

Fees

In addition to fines, the court can order the defendant to pay additional fees, penalties, and assessments to the court. The total amount due to the court for a second DUI usually exceeds the $1,000 maximum stated in Vehicle Code section 23540. The exact amount of your fine will depend on the fines and fees in the county of conviction.

DUI Class

The DUI class for a second DUI is 18 months or 30 months long, depending on the county of conviction.

License Suspension by DMV for DUI Conviction

If the Court convicts you of a second DUI, the DMV will suspend your license for 2 years. The suspension will run concurrent to the DMV suspension of your license. That means that the suspension will last for no more than 2 years. If the Court convicts you of a DUI causing injury under Vehicle Code section 23153, the DMV will revoke your license for 3 years.

Restricted Licenses

In order to continue to drive during your suspension, you will need to obtain a restricted license from the DMV. There are two types of restricted licenses: ignition interlock device (breathalyzer); and restricted. However, for a second DUI, only the ignition interlock restricted licenses is available. The driver must keep an ignition interlock installed in their vehicle for one year. In addition to installing an ignition interlock device, you must obtain an SR-22 from your insurance company, pay a fee to restore your license, and enroll in the appropriate DUI class. Learn more about restricted licenses here.

First DUI Guide

A basic guide for people charged with their first DUI. Learn about the processes and events involved in a first DUI case.

Overview

The five parts of a first DUI case are: arrest, DMV hearing, court hearings, conviction, and sentencing. After an arrest, law enforcement sends notice of the arrest to the DMV on form DS 367. Once the DMV receives that form, they will take steps to suspend your license unless you contact them to contest the suspension within 10 days.

Law enforcement also sends a copy of their arrest report to local prosecutors. Prosecutors review the report and decide which criminal charges to file. If the defendant schedules a hearing within 10 days, the DMV mails a copy of the report to the defendant. The prosecutor also provides a copy of the report to the defendant’s attorney. However, the prosecutor usually does not provide the report until the first court date. Law enforcement does not provide a copy of the report to the defendant until the criminal case is resolved.



DUI Investigation and Arrest

Officers usually pull DUI suspects over for poor driving or speeding. Once officers are close enough to smell alcohol or observe symptoms of alcohol (red eyes, slurred speech), they have enough suspicion to initiate a DUI Investigation.

Officers typically ask DUI suspects to perform Field Sobriety Tests during the DUI investigation. Common field sobriety tests include: walk the line, stand on one leg, follow the finger, and count to 30. Another common sobriety test is the preliminary alcohol screening device, which takes a breath sample. You may refuse all field sobriety tests. However, if you are on probation or parole, you must provide a breath or blood sample. Failure to do so could result in a probation or parole violation. In addition, refusing to perform field sobriety tests is considered evidence of guilt.

Once you are arrested, you must provide a sample of your blood, breath, or urine. The sample will be used to determine your blood alcohol content (BAC). If you refuse, the DMV could suspend your license for one year under Vehicle Code section 23612.

Documentation

When you are arrested, law enforcement will take your driver’s license and give you a temporary paper license that is good for 30 days. The temporary license has information on how to contact the DMV to prevent your license from being suspended. Law enforcement also provides a citation which includes a future court date, the charges, the arresting officer and their agency, and the citation number.

Charges

For a first DUI where no injury occurred, there are two charges on the citation. Both charges are misdemeanor DUI charges under sections and (a) and (b) Vehicle Code section 23152. Vehicle Code sections 23152(a) makes it illegal to drive “under the influence.” Vehicle Code section 23152(b) makes it illegal to drive with over .08% BAC. The prosecutor can charge the defendant with both counts. But the Court can only convict and sentence the defendant to one count. If law enforcement arrested the driver for driving under the influence of drugs, the prosecutor typically charges them with one count of violating (Vehicle Code section 23152(f)). If someone (other than the driver) is injured as a result of driving under the influence, the driver can be charged with felony driving under the influence under Vehicle Code section 23153.

DMV Hearing

You must contact the DMV and request a hearing within 10 days of your DUI arrest or the DMV will suspend your license. The issues at the DMV Hearing are 1) whether you were driving a vehicle; 2) whether your blood alcohol was over .08% when you were driving; 3) whether the officer had probable cause to arrest your for driving under the influence. You can contest the suspension of your license by presenting evidence, cross-examining witnesses, and testifying. The DMV typically conducts hearings over the phone. You can request an in-person hearing by contacting the DMV. It is extremely likely that the DMV will decide to suspend your driver’s license following that hearing.

License Suspension by DMV for DUI Arrest

For a first DUI, the DMV suspends the driver’s license for four months.

Court Hearings

If you bail out of jail or are released on your Own Recognizance, your first court date will be in a few weeks to several months down the road. The jail will give you paperwork with your court date when you are released. If you are not released from jail, you will have a court date within 3 days of your arrest. At that hearing, the Court will consider whether they will release you on your Own Recognizance, change your bail amount, or release you on pre-trial supervision. Under pre-trial supervision defendants are released from jail but must follow specific restrictions while their case is being resolved.

It is common for multiple Court Hearings to occur before the criminal case is resolved. The first hearing is called the arraignment. At the arraignment, the defendant enters a plea and is advised of the charges and their constitutional rights. If the defendant enters a not guilty plea, the case continues to pre-trial hearings, followed by trial. During the pre-trial phase of the case, the prosecutor and defense counsel discuss settlement of the case and prepare for trial.

Settling the Case

Before the first court date, the defendant can attend AA meetings, enroll in a recovery program, or wear a SCRAM alcohol monitor. These methods are regularly used and accepted by the Court. The Court and prosecutor typically see these as favorable factors when deciding the outcome of a case.

If your blood alcohol content was at or near .08%, the prosecutor may be willing to resolve your case for a wet and reckless, or dry and reckless charge.

Fighting the Case

You may fight your case by contesting the reason for a law enforcement stop, detention, arrest, and search. This is commonly referred to as a motion to suppress under Penal Code section 1538.5. You may also take your case to trial. At trial, the key issues will be 1) whether the defendant was the driver of the vehicle and 2) whether their blood alcohol was over .08% (or .01% if under 21) at the time they were driving.

DUI Conviction

A conviction occurs when the defendant enters a plea or is found guilty. A plea can be based on a plea agreement with the prosecutor or an “open” plea to the Court. Under an “open” plea, the defendant pleads to all charges and the Judge determines the sentence. At trial, the judge (court trial) or jurors (jury trial) determine whether the defendant is guilty.

DUI Sentencing

A defendant who enters a plea agreement is typically sentenced according to the terms of the plea deal. If a defendant is convicted by a judge or jury after a trial, the judge will determine the sentence. The judge also determines the sentence for defendants who plead “open” to the court. The judge may accept input on the sentence from the prosecutor, the defense attorney, the victims (if any), and any relevant agencies (IE: probation, law enforcement).

Maximum and Minimum Sentence

For a misdemeanor first DUI (without injury), the maximum sentence is 6 months in jail and a fine of $1,000. The minimum sentence is 96 hours in jail and a fine of $390. A misdemeanor first DUI with injury is punishable by a maximum fine of $1,000 and 90 days to one year in jail. The punishment for a first felony DUI is 16 months, 2 years, or 3 years in prison. The judge may suspend the jail or prison sentence and place the defendant on probation. This allows the defendant to avoid or limit their actual jail time, provided they comply with the terms of probation for the duration of probation (3-5 years).

Jail Time

Many counties in California allow a defendant to serve jail time via electronic monitoring or community service. These programs are typically referred to as “alternative custody” programs. However, some DUI convictions require actual jail time, even if the defendant is granted probation.

ChargeMandatory Jail Time
1st DUI (Vehicle Code section 23538)0-48 hours
1st DUI with injury (Vehicle Code section 23556)5 days

Fees

In addition to fines, the court can order the defendant to pay additional fees, penalties, and assessments to the court. The total amount that the defendant has to pay to the court for a first DUI usually exceeds the $1,000 maximum stated in Vehicle Code section 23540. The exact amount of your fine will depend on the fines and fees in the county.

DUI Class

For a first DUI, the Court will order you to complete a DUI class that is at least 3 months long if your blood alcohol content was under .20%. If your blood alcohol content was over .20%, the Court will order a DUI class that is at least 9 months long. The exact length and type of DUI class varies depending on the county.

License Suspension by DMV for DUI Conviction

If the Court convicts you of a first DUI and your blood alcohol was under .20%, the DMV will suspend your license for 6 months. However, if the Court convicts you of a first DUI and your blood alcohol was over .20%, the DMV will suspend your license for 10 months. The suspension will run concurrent to the DMV suspension of your license, meaning the suspension lasts for no more than 6 to 10 months. If the Court convicts you of a DUI causing injury under Vehicle Code section 23153, the DMV will suspend your license for 1 year.

Restricted Licenses

In order to continue to drive during your suspension, you will need to obtain a restricted license from the DMV. There are two types of restricted licenses: ignition interlock device (breathalyzer); and restricted. Both types of restricted license require that you obtain an SR-22 from your insurance company, pay a fee to restore your license, and enroll in the appropriate DUI class. Learn more about restricted licenses here.

Misdemeanor Diversion Can Get Your Case Dismissed

Misdemeanor diversion under Penal Code section 1001.95 is possible for most misdemeanor charges. However, it is not available for misdemeanor violations of:

  • Penal Code § 273.5 (domestic violence);
  • Penal Code § 243(e) (domestic violence battery);
  • Penal Code § 646.9 (stalking); or
  • Any criminal conviction that requires registration under section 290 (sex offender registration).

Applying for Misdemeanor Diversion

  1. Ask the prosecutor for diversion. Many prosecutors offices already have a misdemeanor diversion program that they offer to defendants facing non-violent misdemeanor charges. Sometimes the prosecutor will offer diversion before any they file a criminal case. If the prosecutor does press charges, the defendant can still negotiate a diversion program with the prosecutor.
  2. Ask the Judge for diversion. Under Penal Code section 1001.95, the Judge may grant diversion even over the objection of the prosecutor. If the judge does grant diversion, the defendant must comply with the terms, conditions, and programs as ordered by the Judge.

Benefits of Diversion

If the judge grants diversion, criminal proceedings are suspended. If the defendant complies with all the terms, conditions, and program ordered by the Judge, at the end of the diversion period the judge must dismiss the case against the defendant.

Length of Diversion

Although diversion can be up to 24 months, it typically lasts 6 months to one year. For some prosecutor diversion programs, the length of diversion is 90 days. However, the defendant can ask the Judge to terminate diversion prematurely once they have successfully completed all conditions and programs.

Failing Misdemeanor Diversion

If the defendant does not comply with the terms and conditions of diversion, the judge will hold a hearing to determine whether to resume criminal proceedings. If the judge finds that the defendant has not complied with the terms and conditions, the criminal case against the defendant resumes.

Terms of Diversion

Terms and conditions of diversion are meant to address the criminal allegations. For example, if the charge is drunk in public, the judge could order the defendant to attend AA meetings or an alcohol course. For a petty theft charge, the judge could order the defendant to pay restitution for their damages and attend a theft awareness course.

How Much Does a Criminal Defense Attorney Cost?

Attorney cost varies depending on who represents you. There are three options for representation in criminal defense cases:

  • Self-representation
  • Public defender
  • Private attorney

Self-representation

Self-representation, commonly known as “in pro per,” has no attorney cost. However, you could have to pay court costs and discovery charges.

Public Defender

The public defender charges a minimal fee for representation, although the judge can chose to waive this fee. You could have to pay court costs and discovery charges.

Private Attorney Cost

Private attorney cost varies depending on the attorney and the facts of your case. Most attorneys require a retainer, but there are attorneys willing to do work hourly. Hourly fees vary, but typically criminal defense attorneys charge $250-750 per hour.

If you hire a private attorney, you will likely have to pay court costs and discovery charges.

What is a Retainer?

attorney cost

A retainer is a contract for a fixed amount of money in exchange for legal services. The retainer can be a lump sum that covers the entire case, or a down payment on the attorney’s hourly work*.

*If the retainer is a down payment on hourly work, you are entitled to refund of any unused funds when you case is concluded.

How much is a typical retainer?

Retainers typically range from $2,500 for misdemeanor cases to $15,000 for felony cases. Most attorneys charge extra to take the case to trial.

Can I negotiate the retainer amount?

Many attorneys are willing to negotiate the retainer amount and take monthly payments. You can also ask the attorney to divide the case into sections.

For example, you can set the attorney cost up to arraignment, with another payment due if the case proceeds past arraignment.

Whatever agreement you make with an attorney, be aware that you get what you pay for. If you want premium services, you should pay premium dollars.

attorney cost

Caution Against Self-Representation

Generally it is not a great idea to represent yourself. You likely do not have the same abilities of an experienced criminal defense attorney, including legal skills, experience with courtroom proceedings, and connections to district attorneys, judges, and court staff.

Do not represent yourself solely because you are worried that your attorney will not fight for you. Instead, take the time to hire an attorney that you trust and with whom you enjoy working.


attorney cost

Law Offices of Russell Brown

Criminal Defense Lawyer