Third Offense DUI

Understanding Third Offense DUI in California

A third DUI conviction in California within the past ten years has more severe consequences than a first-time or second conviction. This is because driving under the influence in California is a priorable offense, that is, penalties increase with every successive wet reckless or DUI sentence that occurs within ten (10) years.

For the prosecutor to charge you with a third offense DUI, they should prove that you:

• Drove a vehicle while under the influence of drugs, alcohol, or a combination of both
• Had a blood alcohol content of 0.08% or more at the time of the arrest

Although the above elements of the crime may seem straightforward, they need further explanation. Below are definitions of key terms to help you understand the offense better.

Driving

If the arresting police see you driving a car, then the element of driving is satisfied. However, this is not always the situation. What happens in an event you were sleeping in the vehicle? What happens when you got involved in a road accident, and the arresting police officer reached the accident scene after the crash? It is not sufficient for the prosecution to present evidence that you were intoxicated. They must submit proof that you operated the car while drunk.

The law holds that the following factors are needed to establish driving:

• The vehicle made some movement
• You were not asleep when the police showed up
• Your vehicle's motor was running
• How close you were to the steering wheel

Under the Influence

Per the law, a motorist is said to be under the influence due to consuming alcohol, their physical or mental abilities are compromised and impaired to a level that they cannot similarly drive the vehicle as a sober driver would under similar conditions.

It is important to note that how you operated the car is not convincing of whether you were driving under the influence. It is just a factor the court puts into account when considering everything.

How the Prosecutor Team Proves that You were Driving Under the Influence

Third-time driving while intoxicated is subjective. That means the prosecution team (that consists of the prosecutor, prosecutor's expert witness, and the arresting police officer) will try to present evidence that you are guilty of violating DUI laws using the arresting officer's observations.

The case starts when the arresting police testify about things that you did not do right. The testimony will take account of your Field Sobriety Tests (FSTs) performance, driving pattern, and physical appearance.

Arresting Police Officer Testimony

Typically in DUI cases, the arresting officer will give evidence that you exhibited objective signs and symptoms of intoxication such as slurred speed, alcohol odor originating from the breath, unsteady gait, and red, watery eyes.

The testifying officer will also bear witness that you were driving erratically, weaving, or not in a position to drive with caution of a sober driver under similar circumstances.

What Penalties Does a Third Offense DUI Carry?

One of the most common questions asked by those accused of a third DUI offense is how penalties and consequences are different from those imposed after a first-time or second DUI conviction. Well, the answer depends primarily on the circumstances of the case. Also, some cases can be reduced from DUI after plea bargaining negotiations to wet reckless, speed exhibition, or dry reckless. 

Typically, the court will impose the following penalties:

• Summary probation for three (3) to five (5) years
• Up to a one-year sentence in jail
• Penalty assessments and fines that range from $2,500 to $3,000
• Installation of Ignition Interlock Device (IID) in your vehicle for up to two years
• Attending DUI school for thirty months
• Revocation of your driver's license for three years

If the court imposes a sentence that has probation, you must adhere to the following terms and conditions:

• You should not operate a motor vehicle with any quantifiable amount of alcohol in your system
• You shouldn't refuse to take a blood, urine or breath test if you are arrested for DUI again
• You shouldn't commit any other offense

It is worth noting that different from non-injury DUI under Vehicle Code 23152, a third-time DUI causing injury charge under Vehicle Code 23153 is a felony. It is punishable by:

1. Two (2), three (3), or four (4) years in state prison
2. Consecutive and additional three (3) to six (6) years in prison if any surviving victim suffers a severe bodily injury
3. An additional one to three-year sentence for every person with an injury
4. A strike on your criminal record under Three Strikes Law
5. A fine that ranges from $1,015 to $5,000
6. A Habitual Traffic Offender status for three (3) years
7. Revocation of your driver's license for five years (However, you can continue enjoying your driving privileges without restrictions provided you install an Ignition Interlock Device for more than a year)

Are there Aggravating Factors that Could Increase the Penalties for a Third DUI Charge?

Aggravating factors are circumstances (if present at the time of committing the crime) that will increase your sentence. Typically, the most common factors include:

• Refusing to submit a breath, blood or urine test
• Excessive speed
• Driving with a blood alcohol content of 0.15% or higher
• Causing a road accident
• Driving while intoxicated with a minor below 14 years of age as a passenger
• Being below 21 years of age at the time of the arrest

Will You Have a Permanent Record if You Have Been Found Guilty of a Third Offense DUI?

Luckily, a third-time driving under the influence conviction can be removed from your criminal record through an expungement. Whether convicted of a felony or a misdemeanor, you could be eligible for expungement as long as you were on probation and have completed probation.

How does Expungement Work?

Immediately you complete probation for your ‘driving while drunk’ offense, you could petition the court to expunge your criminal record. The court will then review the petition to decide if you qualify for the expungement. If the court grants the petition, either:

1. You withdraw your guilty plea and re-enter an ‘'innocence plea''
2. If you were found guilty after the trial, the court sets aside your verdict

Will Expungement Assist you Restore your Driving Privileges?

Under California Penal Code 1203.4 PC, expungement doesn't overturn a suspended or revoked driver's license. Typically, probation lasts longer than the period of compulsory license suspension. However, if your license was revoked, an expungement cannot restore your driver's license.

Will an Expungement Make Searching for Employment Stress-Free?

One of the advantages of expunging a DUI conviction in California is that it makes it easier for you to find a job. This is because a potential employer cannot use it as a source of adverse employment effects. Again the law bans employers from inquiring about convictions and arrests from job applicants or before conditional employment offers are made.

However, a DUI expungement doesn't affect your responsibility to reveal your conviction when applying for teaching credentials or state licenses.

How a DUI Criminal Defense Attorney Can Help you Fight a Third Offense DUI

When you engage a skilled DUI lawyer, there is a possibility of having your charges reduced or dismissed.

However, to fight your charges, it is crucial to contact a competent lawyer who will review your charges immediately after your arrest. This is because a lot involves coming up with a defense, which could be done within a few hours after the arrest. An experienced attorney will use legal defenses such as:

Field Sobriety Tests Do Not Measure Impairment Accurately

If you have been accused of drunk driving in California, and the prosecutor's evidence includes your FSTs performance, your lawyer should be in a position to challenge those results.

DUI prosecution team heavily depends on Field Sobriety Tests and will most likely testify that you performed poorly on the tests. Consequently, they will conclude that you violated the drunken driving laws.

Your attorney will argue that your balance and coordination during FSTs could have been affected by nerves, your clothing, fatigue, flat feet, and natural physical coordination.

Moreover, your lawyer could challenge the reliability of the field sobriety tests. According to the National Highway Traffic Safety Administration, FSTs can only predict 91% of alcohol impairment at the time of the arrest. This percentage assumes that:

• Standardized FSTs were administered
• The police officer who conducted the FSTs was experienced and trained
• Test conditions were perfect

All the above factors can change and make the unreliable results a possible legal defense.

The Arresting Police Officer Did Not Conduct a Fifteen-Minute Observation Period

The arresting law-enforcement officer is required by the law to observe you for at least fifteen minutes before conducting a breath test. Questioning if that observation took place is a valid legal defense your lawyer should utilize.

Most police officers do not conduct the observation. Instead, they do paperwork and set up the chemical test gadget. Successively proving that the officer did not observe the observation period, challenges not only the breath test results but also the DUI investigation.  

A High Protein Diet, Diabetes or Hypoglycemia Falsely Exaggerated Blood Alcohol Content

Any experienced lawyer knows that medical health conditions like diabetes, hypoglycemia, and popular diets could form a basis of legal defense to a third DUI charge.

Typically, human bodies get fuel from carbohydrates and under conditions like fasting, diabetes, or high protein diets, the body breaks down the stored fats for fuel.  When burning the stored fats, your liver produces ketones. Ketones are toxic byproducts that chemically look like isopropyl alcohol.

Sometimes ketones are excreted in your breath. Unfortunately, the breath testing gadgets are not always able to distinguish between isopropyl alcohol resulting from alcohol drinks and ketones. As a result, this could result in falsely high blood alcohol content reading on the breath test and later a criminal charge.

Bad Driving Doesn't Always Mean that You are Driving While Intoxicated

Another thing the prosecution will pay attention to during your case is your driving pattern. The police will testify that you were operating the vehicle in a way consistent with a drunk driver. Typically, this will include allegations that you were swerving within the lane or you were over-speeding. 

Your lawyer should request the arresting officer to testify about the ways you drove safely and properly. The lawyer will then use the testimony to argue that driving pattern isn't a reliable DUI predictor as well as sober drivers commit most traffic offenses.  

Will You Lose Your Driver's License for Third Offense DUI?

Being charged with drunk driving three times within ten (10) years is life-altering. At least you will face revocation of your driver's license and designation of HTO status by the Department of Motor Vehicles.

You can only lose your driving privileges if you get convicted of DUI or lose a DMV hearing.

Luckily, you can acquire a restricted driver's license in either six months or a year of the revocation if alcohol and drugs were involved respectively.  To get a restricted license, you must submit the following to the California DMV:

• Proof of enrollment in an 18 to 30-month Multiple Offender Program
• Proof of installation of IID plus an agreement to keep the IID during the drivers' license suspension period
• Proof of an SR-22 (It is acquired from an insurance provider and should be kept for three years after your conviction)
• Payment of $125 (restricted license fee) to the California DMV

Unfortunately, if you refused to submit breath, blood, or urine test, you will face more severe penalties. Your driver's license will be revoked for three years, and you have no right to a restricted license during the suspension period.

Also, to obtain the restricted license, you should:

• Not be in probation of a previous DUI conviction
• Not have a BAC of 0.01% or higher
• Be above 21 years of age

Frequently Asked Questions on Third Offense DUI in California

1. What is the Difference Between Driver's License Suspension and Revocation?

Driving in California is not a right, but a privilege. DUI is one of the reasons why your driver's license can be suspended or revoked. That is, license suspension or revocation can be part of your DUI punishment.

Driver's license suspension means that your driving privileges have been withdrawn for some time. You can get the license back by paying fees or waiting out the suspension period. If arrested while driving on a suspended license, you could face more severe consequences such as a possibility of having the driver's license revoked.

License revocation, on the other hand, means the DMV has taken away your driving privileges entirely and can't be reinstated. To get a new driver's license, you need to get approval from DMV, pay any penalties you owe and undergo through the licensing process that involves a road test and a written test.

2. What Happens if You are Still on Probation from your Second DUI Conviction at the Time of Arrest for Your Third DUI Offense?

In most cases, the probation will be revoked. You will also face more severe penalties than you would if you were not on probation.

3. What is the Purpose of a DMV Hearing? What Can it Do for you?

Unlike a criminal court proceeding, a DMV hearing is an administrative proceeding held at your local DMV office. DMV cannot sentence you. Instead, the primary purpose of this hearing is to determine if your driver's license will be suspended due to your DUI arrest or not.

Once you are arrested, the police will take away your license and issue you with a Notice of Suspension, which is pink in color. The notice notifies you that you have a right to a DMV hearing to contest the suspension of your driver's license. You need to request the hearing within ten days after your arrest. The notice also functions as your temporary license for thirty days.

Find an Experienced DUI Attorney Near Me

At Legal Leah, we understand that the work done beforehand to prepare and analyze your case for trial is as important as competent representation in a court proceeding. To challenge your charges successfully, we explore all possible outcomes, review factors of arrest as well as investigate the arresting police officer conduct, witnesses, and evidence in your third offense DUI case. With this information, we can develop a defense strategy that meets your needs. We can also represent you in both criminal court and California's Department of Motor Vehicles administrative hearing to challenge your license suspension. For more information, contact our Van Nuys DUI attorney at 818-484-1100 today!