Avoiding 2nd DUI Jail Time in California is important because California has mandatory jail time for second offense DUI’s.
90 days to 1 year in county jail (per charged count), is the statutory jail time prescribed by the California Vehicle Code if a person is convicted of a 2nd DUI offense within 10 years of their first offense.
In fact, California Vehicle Code Section 23540 makes jail time mandatory in 2nd DUI cases. This means someone with a 2nd DUI conviction will go to jail unless they can successfully fight their case or are able to take the necessary steps with the help of a DUI lawyer.
The three most common ways to avoid jail time for a 2nd DUI are:
-Alternative Sentences (such as home confinement or electronic monitoring)
-Beating the case itself, either at trial or at a pre-trial hearing based on a legal defense or procedural defense.
Each of these option is discussed below.
Under California law, the penalties for a 2nd DUI include:
-A minimum of 90 days of jail time (under CVC 23540) and a maximum of 1 year per count charged. (Jail time can be reduced if the driver is granted probation (see below.)) Often DUI cases involve a charge under CVC 23152(a) *AND* CVC 2352(b). The possible jail time a person can recieve is based on the number of charges they face. This means a person facing a 2nd DUI case involving two charges can potentially face a maximum 2 years in county jail. (Up to 1 year per charge.)
-Lengthy court ordered probation, mandatory installation of an ignition interlock device, alcohol education classes and fines from the court
Often a 2nd DUI is not an intentional act by the driver: its a mistake, and its not uncommon. Approximately 80% of people who get a DUI get a 2nd DUI sometime in their lives. Unfortunately, this mistake has serious consequences unless the driver involved does something about it.
3 strategies that work in avoiding 2nd DUI Jail time in California:
If you’re facing 2nd DUI charges, you should know there are three ways to avoid mandatory jail time if you’re convicted. A DUI lawyer should be very familiar with these strategies as a way to avoid jail. These strategies are:
–Probation (in some cases, the amount of jail time can be reduced to 96 hours)
–Alternative Sentencing (such as home confinement or electronic monitoring)
–Successfully defending the case by winning at trial or pre-trial motions
How much Jail time is given for 2nd DUI California Jail sentences?
California Vehicle Code 23540, is harsh when it comes to 2nd DUI Jail time in California, with a statutory minimum of 90 days county jail time being imposed.
Often the prosecutors in 2nd offense California DUI cases request more jail time than the statutory minimum and if the judge in the case agrees more jail time is a very real possibility. It is not unheard of for prosecutors to seek 120 days of jail time.
For 2nd offense DUI cases with aggravating circumstances, more jail time will be given. Some cases are treated as a felony with up to 4 years in state prison. Those cases usually involve serious injury to other people where there is an accident as a result of the 2nd offense DUI on the part of the defendant. Therefore, it is important to learn how to avoid jail time for 2nd offense DUI cases.
2nd DUI Probation: How a DUI lawyer uses probation to avoid 2nd DUI jail time:
There is good news and bad news when it comes to 2nd DUI probation. The good news is it is a very useful way to avoid jail time and keep a person out of jail for a 2nd DUI. The bad news is this: it is not automatic and not every judge will grant probation for DUI cases.
Factors the judge looks at:
-The driving record of the defendant
-The facts of the 2nd DUI case: was there an accident, were there injuries
-Whether the driver has remorse for what happened
A DUI lawyer will understand how to put the best case forward to the judge and convince the judge to grant probation, even if the facts of the case aren’t very good for the driver.
Unlike a first offense DUI, a 2nd DUI carries mandatory jail time and a longer license suspension. The law in California requires jail time for someone convicted of a 2nd DUI within 10 years of their prior DUI. The law that mandates jail-time for 2nd DUI drivers is CVC 23540, which states 90 days is the minimum jail sentence that can be imposed for someone convicted of a 2nd DUI. This means a 2nd offense DUI in California will result in jail-time unless your lawyer can help you beat the charges, or arrange alternates to jail.
Avoiding 2nd Offense California jail time by winning the case.
2nd offense DUI cases are just like first offense DUI cases; they involve the same defense strategies and tactics if the defendant decides to fight their case. There are factual, evidential, scientific and legal defenses available in all DUI cases, including 2nd offense DUI cases that involve jail time.
If the decision is made to fight the case with everything available, a thorough case review will be conducted by the DUI lawyer involved in the case, with a detailed analysis of the facts of the case and the evidence. The lawyer will review the police reports, accident reports (if any), blood or breath testing evidence, calibration of the instruments used, witness statements (if any) and any other facts surrounding the 2nd DUI offense.
With this thorough review, the lawyer will determine if one of the common, successful DUI defenses can possibly win the case. This would include:
-Attacking the police lack of probable cause for the initial stop
-Showing scientific errors with the blood or breath testing done.
-Arguing against the reliability of Field Sobriety Tests, which are notoriously inaccurate in DUI cases.
The case may be won in a pre-trial setting, through an evidence suppression hearing where tainted or improperly collected evidence is excluded from trial in the DUI case.
Electronic Home Confinement to avoid Jail-time for a 2nd DUI in California
An attractive alternative to jail time is electronic home confinement. This means the defendant will serve their jail sentence at home, with a gps bracelet (usually worn on the leg) on to verify they are in fact home. They have restricted freedom of movement and are allowed to go to and from work in a limited geographic area.
There are two downsides to electronic home confinement:
-It is expensive
-The person has to serve the ENTIRE sentence
But electronic home confinement has its positive aspects as well:
-The person doesn’t have to end up in jail
-The person can still go to work
-The person can take care of their family
Examples of 2nd DUI cases involving jail time in California:
Jack is stopped for driving 80 mph in a 65 zone. The CHP officer who stopped Jack notices something odd about Jack. Jack’s eyes are red and watery, and he smells like alcohol. After conducting a field investigation, Jack is brought to the station where he blows 0.12% into the breath testing machine. Jack is charged with two charges: CVC 23152(a) and CVC 23152(b). Because he faces two charges, he faces a minimum of 90 days of county jail, and a potential maximum of 2 years in county jail if the judge in his case sentences him to time consecutive.
Jack decides to plea “no-contest” to the charges and is able to demonstrate to the court that he is remorceful and has learned from his experience. Because he was cooperative with law enforcement and his case didn’t involve any aggravating factors (like an accident or a very high blood alcohol level) the judge in Jack’s case decides to lower the penalty from 90 days jail time under CVC23540 to the statutory minimum of 96 hours under CVC 23542.
Bill was stopped for “lane straddling,” which is driving in two lanes at the same time. Bill refuses to submit a breath test or a blood test after being lawfully arrested for DUI. Because the prosection does not have a chemical test to charge Bill under CVC 23152(b), he faces only one charge under CVC 23152(a). Bill faces up to 1 year of jail time for the underlying charge, and an “enhancement” of potentially more jail time if he is also convicted of refusing to submit to a chemical test.
Because Bill refused to submit a chemical sample to law enforcement, he might face additional penalties at the DMV, in the form of a longer license suspension. (See more about DUI Refusal cases here.)
Bill’s lawyer is able to show that the police officer who stopped Bill did not properly “admonish” Bill regarding the chemical test. As a result of this, all evidence of Bill’s “refusal” to submit a chemical test is excluded from court. Bill decides not to fight the underlying case because police car video in his case shows him driving very erratically. Bill’s lawyer is able to convince the judge to allow Bill to serve “home confinement” where Bill wears an electronic monitoring bracelet (on his ankle). Bill can still go to work and take care of his family.
Useful 2nd DUI in California Jail Time Links:
California DMV Vehicle Code 23542 This vehicle code section covers 2nd DUI probation and allows a judge to reduce the jail given to a convicted 2nd DUI driver from the statutory minimum 90 days to 96 hours if the driver qualifies for probation.
Los Angeles Home Confinement The Los Angeles County Probation Department administers home confinement and home detention programs in Los Angeles County.
Community Service In Los Angeles County, people facing jail time can often convert their jail time into community service or community labor, depending on how the judge in their case handles community service issues.
SCRAM Alcohol Monitoring SCRAM is an alcohol monitoring system that is worn by the person on their wrist. It senses alcohol secreting through the blood vessels and allows for people to prove sobriety by showing no alcohol in their system.
Los Angeles County Jail The Los Angeles County Jail is the facility where most 2nd offender DUI drivers face their jail time if they are unsuccessful in avoiding 2nd DUI Jail Time.