Second DUI

Second offense DUI arrests carry severe consequences with both the criminal court and the DMV. In San Francisco, if a driver has been arrested for driving under the influence of alcohol, medication or drugs within ten (10) years of a prior conviction of California Vehicle Code Sections 23152 (DUI), 23153 (DUI causing injury), California Vehicle Code Section 23103 within the meaning of 23103.5 (reckless driving with alcohol involved), or an out of state equivalent DUI conviction, actual jail time and a two year driver's license suspension are a possibility.

The penalty provision of the Vehicle Code relating to the DUI criminal case provides that any person convicted of a second or subsequent driving under the influence offense shall be required to serve not less than 48 hours of imprisonment or, in the alternative not less than 10 days of community service. The penalty provision does recognize that a inpatient treatment program shall apply as credit towards any actual jail or community service pursuant to Penal Code Section 2900.5. It is important to understand that the maximum penalty for a second offense DUI conviction is one year in the county jail.

Probation

In addition, a separate consequence for a probation violation can be imposed in the county where the first DUI conviction occurred if the person arrested for a second offense DUI is still on probation for the first DUI conviction (typically three (3) years, but as much as five (5) years). It is not necessary for the second DUI to be proven. Rather, the District Attorney need only prove by a preponderance of the evidence (more likely than not) that the person violated a term or condition of probation.

On January 1, 2008, California Vehicle Code Section 23154 went into effect, which makes it unlawful for anyone on probation for driving under the influence in violation of Vehicle Code Section 23152 or 23153 to operate a motor vehicle with any measurable amount of alcohol in their system. The trier of fact must conclude that the accused was lawfully detained, had consumed an alcoholic beverage and was driving a vehicle with a blood alcohol concentration of 0.01 percent or greater as measured by a Preliminary Alcohol Screening Device, evidential breath alcohol test, or blood test.

Separately, the California Department of Motor Vehicles will suspend the driving privilege of any driver who within ten years of the current arrest was arrested and subsequently convicted of driving under the influence, driving with a blood alcohol level of 0.08 percent or more, or reckless driving with alcohol involved (wet reckless) for two years. The DMV will also suspend the driving privilege of any driver who within ten years of the current offense suffered a license suspension following a DMV Hearing where the Hearing Officer concludes a person was driving with a blood alcohol level of 0.08 percent or more. If the driver is on probation for driving under the influence, the Department of Motor Vehicles need only prove that the driver was lawfully detained and was driving with a blood alcohol level of 0.01 percent or greater as measured by a Preliminary Alcohol Screening Device, evidential breath alcohol test, or blood test.

Refusal or failure to submit to a Preliminary Alcohol Screening test or other chemical test subsequent to a lawful detention will result in a driver's license suspension of one year to three years pursuant to California Vehicle Code Section 13353.1.

Contact The Office

Mr. Tayac and the DUI investigators and experts working with him stand ready to help you or your family member. A member of the office is available to speak with you regarding the case any day of the week between the hours of 8:00 a.m. and 8:00 p.m. Pacific Standard Time at 415-552-6000.