Second Time DUI Arrest

 

All of our lives we are told over and over again, “Don’t make the same mistake twice.” But we do. A man promises himself never to return to the fast-food restaurant that served a carelessly prepared, inedible burger, but he goes back again for lunch the following week. Another person swears never again to attend a crowded outdoor concert after being pushed and almost crushed, but she returns the next year and the same thing happens.  Then there is the lottery player who has convinced himself not to buy another ticket, but the next morning he is at the local convenience store getting a ticket. These are examples of people making the same mistake twice with little or no real consequences. But the person who gets caught and charged for a second mistake of driving under the influence of alcohol will face significant consequences which have the potential to disrupt a normal life. According to the Center for Disease Control, those who were punished for a first DUI offense drove while drunk eighty times before being pulled over. Then, after being punished for the first offense, a Mothers Against Drunk Driving (MADD) study found that about one-third of those people made the same mistake a second time, driving many times before getting caught again.

Since you have been arrested a second time for DUI, it is not necessary for us to repeat all of the steps of a process with which you are already familiar. You understand the role played by both the DMV and the courts in deciding your fate.  It might be worthwhile, however, for you to take a few minutes to refresh your memory by reviewing the material we have presented in the previous sections of this website. To best grasp the approach we will take in resolving your case, we hope you will read at least the first section.

We understand that being arrested for a second DUI causes almost intolerable stress and fear. Nonetheless, we at Hurwitz Law Group are confident that we can relieve your anxiety not only by demonstrating our legal knowledge, but by providing compassion, sympathy, and emotional support as we prepare your defense. As we counter the District Attorney’s claims that you were driving a second time while intoxicated, we will employ proven strategies acquired through successfully defending many clients. The expertise of the Hurwitz Law Group has been instrumental in framing tightly prepared legal arguments for our clients which have resulted in no jail time and reduced penalties and fees. Our goal is to get your case dismissed by identifying procedural and legal errors committed before, during, and after you were stopped by a police officer.  We will focus on the unique details of your case as we work calmly, tirelessly, and diligently to address the charges brought against you.  In the following pages, we will outline the laws and penalties pertaining to second DUI arrests.  Later we will present some aspects of the successful game plans the Hurwitz Law Group has used to get favorable, positive results for our clients.

 

The Admin Per Se Hearing:  Second DUI Penalties

The DMV plays the same role in a second DUI case as it did in the first DUI. The only difference is that for the second DUI the penalties are greater. Your license will be suspended for one year (with the exception noted below) if you have had one prior DUI or “wet reckless” conviction within the last ten years. With a second DUI charge, you still must schedule an Admin Per Se hearing within ten days of your arrest. It is wise to let your Hurwitz Law Group attorney schedule this hearing for you.  We are more likely to obtain a hearing date further out on the calendar thus giving us more time to prepare your case.  The DMV hearing is an event that we take very seriously. Our experience has taught us that it is possible to win your driving freedom at the DMV hearing even though many attorneys do not try and prefer to fight a second DUI case only in court. To us, this is a missed opportunity and we will explain why below. But remember, the only role of the DMV is to decide whether your license should be suspended.  If you want to bypass the DMV hearing and avoid a license suspension while retaining all driving privileges, you can agree to install an ignition interlock device (IID) for one year.  This will prevent an otherwise required 90 day “hard suspension,” meaning absolutely no driving for 90 days. If you accept this option, you are deferring to your court appearance to present your case.  We at Hurwitz Law Group almost always try to fight a suspension first at the DMV hearing. There is nothing to lose and much to be gained.

 

The Admin Per Se Hearing:  Preparation and Then More Preparation!

So let’s look at what can be accomplished at the Admin Per Se hearing. As you may recall from your first Admin Per Se hearing, you had a choice between doing it by phone or in person at an MVD office.  Assuming you took the in-person route, you met in an office and sat opposite an employee of the DMV who is not an attorney. He or she came to the hearing having already decided that you are guilty and was ready to officially suspend your license for the mandatory period for a first time DUI offender. Most likely you presented an argument to the hearing officer but, like about 90 percent of those arrested, you lost your case. What you did accomplish was protection of your right to challenge the DUI charge, and you avoided the mandatory license suspension that would have resulted if you had not scheduled the hearing.

The procedure for the second DUI offence is essentially the same as that for your first DUI offence. But this time we are going to pull out all stops in order to beat the charges against you at the DMV level. We will utilize all of the Hurwitz Law Group resources to win at the DMV level, including paralegals, site investigators, witness interviewers, expert witnesses, device calibration experts, and even medical science experts. In the following paragraphs, we will outline the steps we will take to protect your driving privileges at the DMV hearing.

Since this is your second DUI offence in the last ten years, the DMV is determined to keep you off the road. Rather than assume you are innocent, the DMV hearing officer considers you to be guilty of driving with a BAC of .08% or greater, and expects you to prove that you are innocent. That makes more difficult our goal of winning so that you keep your license and your freedom to drive whenever and wherever you wish at all times without restrictions. When you came to Hurwitz Law Group for help all you had was a pink piece of paper known as an “Order of Suspension” which serves as a temporary license allowing you to drive anywhere you wish for thirty days. The DMV hearing officer comes to your Admin Per Se hearing armed with a file of information gathered from the arresting officer and from an examination of your police record. He or she has no idea whether your arrest was done legally, “by the book,” or whether it is full of errors committed by the law enforcement officer who placed you under arrest.  So the burden is on you and your Hurwitz Law Group team to unearth the critical information that will show that your arrest was improperly conducted. Now we will explain some of the ways we will prove that you deserve to keep your driving privileges.

Winning an Admin Per Se case requires an extreme amount of preparation, almost as much as a court case. To have success at the DMV level it is essential that we focus our attention on  finding seemingly insignificant details and then return to find more such details.  When we combine attention to detail with a thorough knowledge of the law and then superimpose our persistence over the entire endeavor, we have a winning strategy.  So, as mentioned above, when you come to Hurwitz Law Group, the first step we take is to schedule your DMV hearing as far into the future as possible.  This allows us to collect our information and formulate a plan of attack involving you and our entire team. Depending on the complexity of your case and, in particular, whether it involves an accident, it may take several months, and more than one meeting, to resolve all issues.  In such a case, we would likely have to request a “Stay” to be put on your license suspension in order to allow time to properly prepare our arguments.  The “Stay” simply stops suspension of your license until the hearing is over.

Having convinced the hearing officer that a “Stay” is necessary due to the volume of evidence we intend to present, we begin with a systematic interview of you by several members of our team. This is necessary because the information in the hands of the hearing officer is considered to be accurate.  It was collected mainly by the arresting officer and based on his or her observations at the time you were stopped. It includes subjective observations as well as chemical test results. But what it does not take into account are such factors as your activities prior to your arrest nor your medical history.  Even if you were asked whether there were any reasons you could not take certain sobriety tests, you may not, while under duress, have recalled all of your possible medical issues which might have affected your behavior during a field test.  You may have forgotten that you have leg tightness due to back pain or cramps in your feet. Medical issues such as these, if validated by a doctor, can be presented at the hearing to prove that the sobriety tests may not be accurate.

Another type of evidence that we have used to show that our clients were not under the influence of alcohol when arrested is of a scientific nature. For example, we subpoena maintenance records of the devices used in the breath test, and we ask for laboratory notes from the technician who analyzed our client’s blood sample. We have argued that the BAC results, in certain cases, were incorrect by showing that our client’s blood alcohol level was rising when the BAC test was administered. This argument is based on the fact that the human body metabolizes alcohol at different rates depending on body weight and that the alcohol level rises over time. We have try to show that, in specific cases, the BAC tests given to our clients were done prior to full alcohol absorption in the blood stream. Of course, we are fortunate to have experts on this type of argument on-call, and we draw upon their knowledge at the DMV hearings. A similar type of scientific argument is known as the Mouth-Alcohol defense.  It can be shown, in some instances, that the arrestee had consumed alcohol so recently that there was still alcohol in his or her mouth when the breath test was taken.

As part of our effort to gather as much evidence as possible prior to the Admin Per Se hearing, we go so far as to visit the site of the arrest to study the conditions under which the sobriety tests were administered. We look for bumps in the road, gravel on the shoulder, and slope of the area. All of these studies are done by the experts at Hurwitz Law Group who have special training in their various fields of expertise. Although it is true that most arresting officers do the tests according to proper protocols, we are often surprised at the carelessness of some officers during an arrest.

Police reports of a DUI arrest contain a wealth of information that often can be challenged as to its accuracy. Since it is this information that forms part of the basis for “probable cause” in a DUI arrest, we spend considerable time studying the description presented by the arresting officer.  We often find contradictory statements in these reports. When we find what we think are exaggerations or outright misleading comments, we subpoena the officer to question him or her regarding such statements.  We have often had to request dash-cam video to compare it with officer statements. What we want our clients to understand is that there is no limit to the extent to which we will go to win a case at the Admin Per Se hearing.

By preparing diligently for the DMV hearing, we will have a leg up when we get to the criminal trial. Remember that the DMV and the court are two separate entities that must be addressed when fighting a DUI case. It is the court that has the authority to mete out punishment while the role of the DMV is strictly related to license suspension. We will now look at the various options the judge has in setting penalties in a second DUI case.

 

The Court Case:  Second DUI Penalties

The penalties for a second DUI are set forth in California Vehicle Code 23542. In brief, a second DUI will result in a sentence ordered by the court of three to five years of summary (informal) probation with restrictions.  The restrictions vary by county but usually include (a) confinement in the county jail:  96 hours which can be served nonconsecutively in two increments of 48 hours each (in Los Angeles County), 30 days (in Orange County), 45 days (in San Bernardino County), (b) enrollment, participation, and completion of 18 to 30 months in a state-licensed, driving-under-the-influence program, (c) payment of a fine of $390 to $1000 plus substantial fees, and (d) installation of an ignition interlock device for one year.  These are minimum penalties for a second DUI arrest. There are a number of “aggravating factors” that will increase the minimum penalties, such as (1) excessive speed, (2) accident involved, (3) driver under age 21, (4) high BAC, (5) prior DUI, (6) refusal of breath or blood test, (7) resisting arrest, (8) child under 14 in the vehicle, and (9) concealed drugs.

Judges in each county have the authority to add other penalties for a second DUI including community service in the form of labor such as litter removal on county roads.  In Los Angeles County, for example, a judge can order a second DUI offender who is on probation to participate in an activity called the “HAM” program (hospital and morgue) which focuses on positive behavioral change. It consists of four components which are designed to encourage thinking and reflection about the dangers of drunk driving. It both scares and educates by requiring alcohol awareness instruction, a hospital visit to see the gory results of alcohol related accidents, a morgue visit to show where bodies are stored and examined after a fatal accident, and a reflective period requiring an essay about what the DUI arrestee learned including a discussion of positive behaviors focused on healthy choices.  The hope is that this set of experiences will help change drinking and driving behavior. Judges also can assign a convicted DUI offender to a program run by MADD, called the Victim Impact Panel (VIP), in which DUI victims share their personal stories about how being injured by a drunk driver has impacted their lives.

Your Hurwitz Law Group attorney may suggest that you try to provide the judge with evidence that you are serious about addressing what you believe may be an alcohol addiction.  If it is an addiction that is causing you to over indulge and then get on the road, treatment may be the answer to preventing further DUI arrests. Taking pro-active steps to prevent future arrests may convince the judge that you deserve leniency when your penalty is being contemplated.  There are a number of programs in which you may enroll prior to your court date. Two of these have been mentioned above, the “HAM” and “VIP” programs. An Alcoholics Anonymous program is another that you can enter voluntarily.  Any action that you can take to show that you will no longer be a threat to your community should be pursued.

 

The Court Case:  How We Fight to Protect Your Driving Privileges

After having perused the extensive steps Hurwitz Law Group takes to prepare for the Admin Per Se hearing, you probably wonder what more can be done to prepare for your criminal trial. Everything we did to get ready for the Admin Per Se hearing will, of course, be used in court.  No matter how hard the District Attorney has prepared, we know the ins-and-outs of your case better than he or she possibly could.  But we do don’t take anything for granted. We will build upon the evidence and arguments we presented at the DMV hearing in order to further strengthen our case.

Our efforts to get a just resolution of your second DUI offense rest with our success at convincing the District Attorney that he or she does not have enough evidence to convict you when we go before the judge or, if necessary, the jury.  In the first section of this website, we explain in detail how we have built up relationships over many years with district attorneys and judges in the courtrooms of Los Angeles, Orange, and San Bernardino counties.  We have also described how the Hurwitz Law Group team mobilizes to collect evidence with which to prepare your case.  So now we will enumerate the additional steps we take beyond those employed in the DMV hearing to win your case in court.  We shall leave no stone unturned in our fight to protect your driving privileges.

As with DMV hearing officers, district attorneys come armed with a considerable amount of information including your past driving history, field sobriety test results, breath and chemical test results, police officer subjective observations, and other findings. The one document that your Hurwitz Law Group attorney would hope to bring to the meeting with the district attorney is a finding by the DMV officer that you are not guilty of driving under the influence and that your license will not be suspended. This decision is called a “set aside,” and it means that you can resume driving without further DUI punishment.  Even though the court case is completely separate from the Admin Per Se hearing, a “set aside” decision from the DMV hearing officer carries considerable weight when presented to the judge.  A “set aside” would be the ideal way to begin discussions with the district attorney, but without it we will still prevail in court.

The first addition to our already thick folder of documents will be a request, in writing, to the district attorney for all of the evidence in your case that he or she has on file.  Even though some pieces of evidence will duplicate what we already have, there is the possibility that there are other important bits of evidence that are not in our hands.  Such items might include still pictures and videos taken during the arrest of the police officer administering the field sobriety tests. This would be critical because they may show the ground conditions when the “walk-and-turn” test was given.  Better yet, a video (hopefully from a dash-cam)  might reveal that the instructions given to you were not done according to proper protocol, or it might show that the officer asked you to stand on one leg for more that the required thirty seconds.  We would also hope to get, via this request, dispatcher logs with communication between your arresting officer and the dispatcher.  This request could even include police reports of a supplementary nature and calibration data for the instruments used in the arrest.

The search for evidence unknown to us would include a request of the arresting officer for all of the documents he or she has pertaining to your arrest.  This might turn up notes which contradict statements made when we subpoena the officer to appear in court.  Finally, we send a letter to the DMV to get everything they have on your case.

If we feel that we still do not have all of the documents pertaining to your case after we have gathered the information from the above sources, we will file a motion with the judge seeking to discover what else might be available to use in your defense.  This is called a “discovery” motion and it often turns up unexpected, useful facts.  Another motion that we will use asks for a sample of the blood that was used when (if) you took a blood test after being arrested.  We will send the sample to a laboratory of our choice to get an independent reading of your BAC.  Quite often we find a measurable difference between the two tests using the same blood.   Another possibility is that we may learn that the blood was not stored properly between the time it was taken from your arm and when it was received at the police laboratory.  The police are supposed to keep accurate time sheets as the blood is moved and stored from one location to another.  If we can prove that improper handling took place, we may have grounds for dismissal of your DUI case.

In our quest to leave no stone unturned in our search for evidence to defend you, we will take one more legal step.  If we suspect that you may have been treated improperly by the officer who arrested you, we will file what is known as a “Pitchess” motion.  This is a request of the judge to allow your Hurwitz Law Group attorney to see the personnel file of the officer who arrested you.  If you (and we) suspect that the officer acted improperly during your arrest by lying in his or her police report, coercing you to say something you did not want to say, or maybe racially profiling you, we will request the file to see if such behavior has occurred often in the officer’s past.  Such a request must include specific reasons why you suspect misconduct and how it will be used to support your case.  If it turns out that the officer has a history of doing what you claim, such information may lead to our filing a motion to dismiss your case.  No matter what the outcome of the “Pitchess,” motion, either it works to get your charges dropped or, if not, no harm has been done to your case.

After Hurwitz Law Group is convinced that all available information has been gathered, we draw up a letter to be sent to the district attorney comparing what we have with what is in the police report.  Often the police report lacks important information, or what we have found differs from what is in the police report. In some situations, we may make a motion asking the judge to suppress certain contradictory evidence.

Our thorough search for all available information regarding your case contains a subtle message for the district attorney.  We are trying to show that we take your case very seriously because we feel that you are innocent of the charges against you.  We want the district attorney to think about whether such an extensive effort to find information would be done if we were not sure we held a “winning hand” in your court case. To bolster your case even further, we employ one last device to improve your chances to win in court.  We compile a file of all the good things you have done in your life to show that you are an upstanding citizen in your community.  In the file we include graduation certificates from all schools you attended, military commendations and honorable discharge papers (when germane), job recommendation letters, volunteer service appreciation certificates, and other pertinent information.  Last, we request letters pertaining to your character from family, clergy, friends, medical providers, and co-workers.  So, even though you have let yourself down regarding your second DUI, we can show that you are still a positive asset to your community in the eyes of those with whom you relate on a daily basis.

 

Second DUI While on Probation for First DUI

Among the several conditions of probation you received when you were convicted of a first DUI was the stipulation that you not break any laws and, in particular, that you not have any alcohol in your system when you drive. This is known as “Zero Tolerance” and means no BAC above .01% is acceptable. Because you violated this court order, you have put yourself in a position where you will face a probation revocation hearing, a new court case for your second DUI offense and, of course, another Admin Per Se hearing.

Serious consequences are inevitable when you are arrested for a second DUI while on probation for the first DUI. All of the required punishments for a second DUI will be in force as well as additional penalties due to the probation violation.  Your driver’s license will be revoked for one year, and you may be ordered to serve the jail term that was waived when you received your first DUI probation.  You will not be eligible for a restricted license and you will be subject to extra fines. This is the point at which the skill of your Hurwitz Law Group attorney plays a most valuable role in protecting you freedom.  We explained above the strategy that we use to convince the judge that you recognize that you may have an alcohol addiction problem since you have been arrested for a repeat DUI.  Our approach was to show that you are taking seriously your recognition of this debilitating condition. In an effort to take the initiative in addressing your possible addiction problem before your court appearance, we suggested that you enroll in the “HAM” and/or “VIP” programs as well as Alcoholic Anonymous sessions.  But these are not genuine alcoholism treatment programs.  Furthermore, our argument that you have an addiction problem is enhanced due to your arrest while on probation.

Our experience has been that many judges do not want to punish an offender who is suffering from a condition, that is, alcohol dependency, which requires medical attention rather than jail time.  We will argue at your probation revocation hearing that you are not a safety threat to yourself or your community because you recognize your problem and have already started to seek help. Moreover, we will ask that rather than order a strict punishment the judge allow you to enter an alcohol rehabilitation program either as an out-patient or in-patient at a specialized facility. Most judges show sympathy when they see that an individual is sincerely trying to recover from an incapacitating disease.  With a compelling presentation in court in cases like yours, we have been successful in convincing judges that your arrest while on DUI probation was a result of an illness; therefore, it does not constitute a probation violation.

 

Costs of a Second DUI in California

DUIs are the number one crime in California, and they add a great deal of money to the state and county coffers. They also keep many related businesses in the black.  Court mandated services, penalties, fees, and insurance requirements add up quickly. It is possible for a Second DUI to cost more than $10,000. In addition to fighting your legal case, your Hurwitz Law Group attorneys will concentrate on ways for you to avoid as many expenses as possible. Our experience has helped us identify alternatives to some of the most expensive costs you may face. Following is a partial list of the outlays the court may try to extract from your wallet for fines and court-mandated services.

  1. Police booking fee–$400
  2. Alcohol prevention classes for 18 months–$1500 to $1800
  3.   IID installation–$400 to $500
  4. IID monthly use fee for one year–$1200
  5. DMV fees–$450
  6. Towing and storage fees–$700
  7. SR-22 Insurance premium increase for one year–$1200 at least
  8. Special deterrent programs, such as HAM–$250 at least

The items listed above are minimum costs and they already add up to $6100. There are many other costs associated with a second DUI conviction which vary depending on the specifics of the case and the orders of the judge. Here are a few such items.

  1. Bail costs
  2. Transportation if license is suspended for a period of time
  3. Loss of income if you cannot work
  4. Property and hospital costs if an accident is involved
  5. Lawsuits filed against you if there are injuries due to an accident

Judges and prosecutors are serious when it comes to second-offense DUIs. But you can count on Hurwitz Law Group to work diligently, energetically, and tirelessly to help you through these stressful times and to ensure that you get a fair and positive result for your case. As we have explained above, we will call upon all of our knowledge and resources to provide support and aggressive representation as we guide you toward a successful outcome. Our goal is to get you back to the constructive life you led before you were arrested.  Hurwitz Law Group will make it happen!

 

 

 

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