3rd DUI Offense

California defines DUI as having control of a moving motor vehicle while your physical and mental faculties are impaired. The impairment is such that you cannot drive with the alertness typical of a sober individual. The term “under the influence” does not specify whether it is drugs or alcohol. It encompasses all types of intoxicating substances, including illegal, prescription, or over-the-counter medicines.

California treats all DUI offenses as priors. The penalties increase with each consecutive conviction of wet reckless or DUI that you receive within ten years. Therefore, a third DUI offense in ten years attracts stiffer penalties than both a first and a second one. Our attorneys at The Law Offices of Ross Howell Sobel understand the consequences of a 3rd DUI conviction. We commit significant time and resources in defending clients from within and around Los Angeles County and Los Angeles, to possibly avoid a conviction.

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An Overview of California DUI Laws

California has some of the most stringent DUI laws. In addition to specific codes that prohibit DUI, the implied consent law ensures that you submit to a chemical test at the request of a law enforcement officer. Implied consent presumes that by having a driver’s license, you consent to a chemical DUI test or face the consequences.

If law enforcement officers arrest you for DUI, you will face criminal charges for violating any one of the following codes.

  • Section 23152(a) VC: Driving under the influence of alcohol, drugs, or both is a misdemeanor. This prohibition also applies to valid medical prescriptions.
  • Section 23152(b) VC: Driving with a Blood Alcohol Concentration (BAC) of 0.08% or more is a misdemeanor.
  • Section 23152(e) VC: It is an offense to drive a passenger vehicle for hire with a BAC of 0.04 or higher when the passenger is in the car.
  • Section 23152(d) VC: As a commercial license holder, driving a commercial vehicle with a BAC at or higher than 0.04% is an offense.
  • Section 23136 VC: This code is also known as the “zero tolerance” law on underage drinking and driving. The code prohibits anyone aged below 21 years to drive with a BAC of 0.01% or higher.

Penalties for a Third DUI Offense

When a judge convicts you for a third DUI offense, they impose the following penalties

  • Informal probation for between three and five years
  • County jail time for a mandatory 120 days, but not exceeding one year
  • Penalty assessments and fines ranging from $2,500 to $3,000
  • IID installation for two years
  • Court-approved DUI program for 30 months
  • Revocation of your driver’s license for three years, convertible to restricted status after 18 months. The license can immediately be restricted if you install an IID

If your sentence includes probation, you must meet the following conditions:

  • You will not drive after consuming any amount of alcohol
  • You must submit to chemical tests if the authorities arrest you for a successive DUI.
  • You will not commit any other crimes

Sometimes, the court may require you to:

  • Attend Alcoholics Anonymous or Narcotics Anonymous meetings
  • Participate in activities organized by Mothers Against Drunk Driving (MADD) Victim Impact Program
  • Pay restitution if your DUI resulted in an accident

Aggravating Factors

The presence of certain circumstances will enhance the penalties for your third DUI conviction. Such factors include:

  • A BAC of at least 0.15%
  • Refusal to submit to DUI chemical testing
  • Having a child aged below 14 years in the vehicle at the time of the offense
  • Causing an accident
  • Being underage (below 21) when you commit the DUI offense
  • Exceeding speed limits

The enhanced penalties depend on the specific facts of your DUI arrest and your criminal history, including prior DUIs. A third conviction combined with a previous crime minimizes your chances of a non-custodial sentence.

What Prosecution Must Prove

For the judge to convict you of a DUI, the prosecutor must provide compelling evidence that proves the elements of a DUI offense beyond a reasonable doubt. These elements include:

  1. Driving while Under the Influence

The prosecution must prove that you drove the vehicle. The basic form of proof is if the arresting officer observes you driving. Without direct observation, prosecutors can use circumstantial evidence like engine warmth, sitting position, and the position of your car keys.

  1. Probable Cause for a Traffic Stop

Officers make traffic stops when they have a valid reason. The reason may be as significant as a driving style that suggests intoxication such as speeding, running stop signs, or weaving through lanes. It may also be a secondary reason such as expired license tags or broken tail lights.  The officer may conduct field sobriety tests if you exhibit signs of inebriation.

  1. Failing Standardized Field Sobriety Tests

The tests include the one-leg stand test, the horizontal gaze nystagmus test, or the walk and turn test.

  1. Exhibiting Objective Symptoms of Intoxication

The signs include slurred speech, bloodshot eyes, an alcohol odor, or an unsteady walk.

  1. BAC Equal to or Higher than 0.08%

 The acceptable BAC limit is less than 0.08%. However,  you could still face DUI charges under particular vehicle codes even when your breath, urine, or blood test indicates a BAC lower than 0.08%.

Common DUI Defenses

Your attorney can provide evidence that refutes the prosecution’s claim of a DUI. If your lawyer can cast doubt on any of the evidence against you, the judge may dismiss your case or convict you of a lesser offense. Some of the most common DUI defense are:

Errors in DUI Breath Tests

Breathalyzers measure the alcohol content in your breath then convert it to determine your BAC. Often, the readings are erroneously high due to factors such as:

  • Instrument malfunction
  • Improper handling during the administration of the test
  • Physiological conditions such as GERD, diabetes or low cab diets
  • Interference by external elements such as radio frequencies from patrol cars, ambulances or automatic car locking systems.

Mouth Alcohol

Breath testing equipment is designed to take breath samples from deep in your lungs. However, mouth alcohol can interfere with the recording if you:

  • Use an alcohol-based breath spray or mouth wash
  • Use chewing tobacco
  • Burp or regurgitate after a drink
  • Have dental devices such as braces that trap alcohol-soaked foods in your mouth
  • Are in ketosis due to a low carb diet or diabetes

Medical Conditions

Some illnesses produce mouth alcohol which interferes with the air from the deep lung tissues. This air is what breath testing instruments should measure. The mouth alcohol is due to the acid that flows from your stomach into your mouth. Such conditions include:

  • A hiatal hernia
  • GERD
  • Heartburn
  • Acid reflux

Rising Blood Alcohol

Alcohol absorption into your system takes between 50 minutes to three hours. A chemical test taken when your blood alcohol is still increasing will produce higher BAC readings than when you were driving. The measurements relevant to your case are the readings at the time of driving not at the time of your chemical test.

Misconduct by the Arresting Officer

DUI arrests must adhere to specific legal procedures. If the police fail to observe these rules, their conduct may provide grounds for the judge to dismiss your case. Such actions include:

  • Violating Title 17 procedures. This code regulates the collection, storage, and analysis of chemical test samples. Breaching any of these regulations can discredit your DUI chemical test results.
  • Lack of probable cause for the DUI stop: The police can only make a traffic stop if they reasonably suspect that you are committing a crime. They do not necessarily have to suspect you of DUI. Stopping you for no reason can make the judge suppress that evidence. Prosecutors cannot use suppressed proof against you.
  • Failure to read Miranda rights: The arresting officer must clearly read you your Miranda rights after your arrest and during your custodial interrogation, or risk exclusion of your statements from evidence. If your assertions are significant, the exclusion could lessen or dismiss your charges.

Non-compliant DUI Checkpoints

California has strict legal requirements that regulate DUI sobriety checkpoints. Your defense attorney can contest your DUI arrest if it happens at a checkpoint that does not meet the minimum conditions. These requirements include:

  • Having supervising officers to organize and manage the inspection
  • Ensuring that field officers use an established procedure for stopping vehicles
  • Advertising the DUI checkpoint publicly

Innocent Reasons for Physical DUI Signs

Physical indications of DUI such as red or watery eyes, slurred speech, or an unsteady gait can be a result of illness, allergies, physical injury, or fatigue. The signs cannot on their own prove DUI. Additionally, erratic driving can be a result of distraction or lack of concentration.

No Driving

The crime is driving while under the influence. There must be evidence that you were in control of a moving vehicle.  If you are in an accident, but nobody saw you driving, or you are sitting in a parked car, the prosecution cannot prove the element of driving.

Consult a DUI Attorney Near Me

A third DUI conviction can earn you significant jail time and a substantial amount of money in fines and restitution. It also goes into your criminal record, which could affect your chances of employment or even leasing an apartment in the future. If the police arrest you for DUI in Los Angeles County & Los Angeles, you need to call us at 818-582-2350. Our experienced attorneys will fight hard,  possibly to get a ruling in your favor.

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