THIRD DUI – ONTARIO DUI ATTORNEY GROUP
A third DUI conviction within 10 years is the last such conviction to be charged as a misdemeanor before all subsequent ones are felonies. Still, a third drunk driving conviction carries substantial penalties and consequences that can significantly affect your life and your family for years.
You risk the probable loss of your driver’s license for 3 years and mandatory jail time along with a number of other severe penalties. Immediately contact one of our defense lawyers from the Ontario DUI Attorney Group to see what advice and legal representation we can offer to get your charges or sentence reduced or even your DUI dismissed or take it to trial where our lawyers have a remarkable record of acquittals.
What You Can Do If Stopped on Suspicion of DUI
A DUI is a criminal offense and if you are confronted or questioned by police, you have the same rights as any other criminal defendant regarding self-incrimination with some exceptions. For example, if you are on probation for your last DUI conviction, you are not allowed to have any measurable amount of alcohol in your blood or you risk arrest and possible incarceration for violating your probation. Though you may choose to not answer any questions from the officer about your drinking, the same does not apply to other requests.
If Under Probation
If you are under probation, you are obligated to perform any FST or field sobriety tests and to blow into a preliminary breath testing device called a PAS. Though this test is not admissible at trial, it can be used as probable cause to request you take a formal BAC test, either blood or breath. If you refuse to submit to this test, you face probably arrest for DUI and for violating a condition of your probation.
If the officer has any suspicion that you were drinking, you will be asked to either blow into a handheld or portable breath device called a PAS or asked to perform certain field sobriety tests or FST. Since a condition of your probation is that you not drink or drive any measureable amount of alcohol and that you cooperate with police in these situations, you cannot refuse these requests or you risk arrest.
If Not Under Probation
If you are not under probation, then you can and should refuse to perform any of these tests except for the BAC test unless you feel that you can show you were not under the influence. Though the burden of proving you were DUI is on the DA, there is a rebuttable presumption that you were impaired if your BAC is 0.08% and are deemed to have been at this level within the last three hours. Also, if you do refuse BAC testing, it can be used as evidence of your guilt. It is also an aggravating condition that the court can use to impose more jail time. The DMV will suspend your license for a longer time with a BAC test refusal.
If you violated your probation, you are also subject to jail time and could spend whatever time was suspended by the court when you were sentenced or some portion of it.
Under any circumstances, though, you cannot call an attorney to decide whether to take the breathalyzer or to submit to a blood test. You can call one of our Ontario DUI Attorney Group lawyers after you are placed under arrest.
The Administrative Per Se Hearing
When arrested for a DUI, you are entitled to an Administrative Per Se (APS) hearing regarding your license but you must have requested the hearing within 10 calendar days after your arrest. Our lawyers at the Ontario DUI Attorney Group have handled thousands of license suspension hearings before the DMV providing us an opportunity to cross-examine the opinions and conclusions of arresting officers, review the procedures they followed or neglected to follow and if the blood or breath test was serviced and administered correctly. We will analyze the facts of your case to determine what other possible defenses to raise regarding the validity of the breathalyzer or the blood test or other issues in your case.
The following issues are addressed at your APS hearing:
Was there probable cause to stop you
Whether your arrest was legal
If your BAC was 0.08%
Did you refuse testing
The standard of proof that the state bears in these hearings is that of preponderance of the evidence, which is less strict than the criminal standard of proof beyond a reasonable doubt so that if we prevail, we are often able to get your criminal DUI charges dismissed or reduced to a non-alcohol related offense or infraction.
Penalties and Sentencing for a Third DUI Conviction
The penalties for a third DUI conviction in 10 years are found in CVC Section 23546(a):
“If a person is convicted of a violation of Section 23152 and the offense occurred within 10 years of two separate violations of Section 23103, as specified in Section 23103.5, 23152, or 23153, or any combination thereof, that resulted in convictions, that person shall be punished by imprisonment in the county jail for not less than 120 days nor more than one year and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000). The person’s privilege to operate a motor vehicle shall be revoked by the Department of Motor Vehicles as required in paragraph (5) of subdivision (a) of Section 13352. The court shall require the person to surrender his or her driver’s license to the court in accordance with Section 13550.
(b) A person convicted of a violation of Section 23152 punishable under this section shall be designated as a habitual traffic offender for a period of three years, subsequent to the conviction. The person shall be advised of this designation pursuant to subdivision (b) of Section 13350.”
According to the code, a typical sentence and penalties are typically:
Mandatory minimum time of 120 days in county jail
Fine of $390 to $1,000 with additional costs and assessments
Mandatory participation in a DUI program for 18 to 30-months
Habitual Traffic Offender (HTO) status for 3 years
3-year suspension of driver’s license or 10 years to life if considered an alcoholic
Restricted license eligibility after one year
No restricted license if you are deemed a threat to public safety
No restricted license if you refused testing
Installation of an ignition interlock system on car
One of our lawyers from the Ontario DUI Attorney Group can request that you spend your sentence at home under the electronic monitoring program called SCRAM. If available, you could spend your sentence in a private jail setting that is separate from the county jail population.
There are a number of conditions that the law considers egregious conduct that accompanied your intoxicated state that can enhance your sentence and add at least 10 days to your jail sentence. For some of these, you may be subject to a felony charge. These conditions are:
Refusal to submit to BAC testing
Having a passenger who was under age 14
Speeding 20 mph over the posted limit
Having an elevated BAC level or at least 0.15%
Causing a property damage accident
Causing a serious injury or fatality accident
If you did have a young child as a passenger and you caused an accident, had a highly elevated BAC level or were excessively speeding, you could face felony child endangerment charges and face up to 6 years in state prison. If someone was seriously injured or killed, the DA could charge you with assault with a deadly weapon or vehicular manslaughter. You also could be sentenced for each additional person who was injured or killed.
Defenses to a DUI
Along with the officer’s observations and conclusions about your demeanor and signs of intoxication, the main subject at many DUI trials is the validity of your breath or blood test. Having a BAC of 0.08% is a rebuttable presumption that you were under the influence. Very often, a highly skilled and knowledgeable defense lawyer can attack the procedures used to administer either the breathalyzer or blood test and challenge the result’s validity based on dozens of factors. Some of the common ones include:
The breathalyzer was not properly serviced or maintained
Your medical condition produced a false high BAC result
The technician or officer who administered the test lacked certification or proper training
Guidelines were not followed in administering the test
Procedures in administering and preserving your blood sample were not followed
There were reasonable explanations for your driving conduct and performance on FSTs
Your BAC was under 0.08% when you were driving since your test was taken hours later
The officer lacked probable cause to stop you
There was no probable cause to arrest you
A third DUI conviction can result in serious consequences for your life and that of your family’s. Contact the Ontario DUI Attorney Group today.