2nd (Second) Offense DUI - Long Version - Part 1

A 2nd offense DUI is serious business. However, in many, if not most 2^nd Offense cases, jail can be avoided. This section will examine the more important aspects and considerations involved in handling a 2^nd Offense case, and will examine the realities of jail, without scare tactics, and how Jail can be avoided. I’ll also discuss what happens to a person’s Driver’s License, and how being proactive, rather than reactive, can affect the outcome of a 2^nd Ooffense DUI, even where there is essentially zero chance of “beating” the case.

Legally speaking, a 2^nd offense DUI means a 2^nd alcohol-related driving offense where the Arrest on the new charge falls within 7 years of the date of the conviction for the prior charge. If a prior conviction was even 1 day more than 7 years before the Arrest for the new case, then it cannot be prosecuted as a “2^nd Offense.” I point this out because some people are unaware of this application of the Law, and feel that, just because you had a prior DUI 8 or 10 years ago, and feel you are facing a “2^nd Offense” for a new DUI charge. You are not.

There seems to be no shortage of websites that whip up a scary “doom and gloom” scenario regarding 2^nd Offense DUI charges. I hope to make this section different, and will try to focus on the realities of what happens in a 2^nd Offense case. Most importantly, I want to show that a 2^nd Offense DUI does NOT necessarily mean Jail.

Let’s first compare the potential penalties of a 2^nd Offense case with those of a 1^st Offense case. I’ll also include an “Impaired Driving” as a 1^st Offense, since so many 1^st Offenses result in a Plea Bargain that may be reduced to an, “Impaired” charge.

Here’s the rundown:

First Offense Operating While Intoxicated (OWI):

1. Up to 93 days in jail
2. 6 months Suspended License: 1^st 30 days no driving at all, remaining 5 months Restricted Driving allowed.
3. Up to $500 in fines, plus costs
4. Up to 180 hours of Community Service
5. 6 Points on your Driving Record
6. $1000 Driver Responsibility Fee for 2 years

First Offense Operating While Visibly Impaired (OWVI):

1. Up to 93 days in jail
2. 90 days Restricted Driving (180 days if Impaired by Drugs)
3. Up to $300 in fines, plus costs
4. Up to 360 hours of Community Service
5. 4 Points on your Driving Record
6. $500 Driver Responsibility Fee for 2 years

Note that the only real differences between a “straight up” OWI and the lesser “Impaired” charge is $200 in Fines, 2 Points on the Driving Record, and the amount of the Driver Responsibility Fees for 2 years ($1000 per year for 2 years for an OWI versus $500 per year for 2 years for an Impaired charge)

Now, let’s set out the potential Penalties for a 2^nd Offense DUI:

1. 5 days to 1 year in jail, or
2. 30 to 90 days Community Service, and
3. 1 year Revoked License (no driving at all, no license available)
4. $200 to $1000 fine, plus costs
5. License Plate Confiscation
6. Vehicle Immobilization from 90 to 189 days, unless vehicle is forfeited
7. Possible Vehicle Forfeiture
8. 6 Points on your Driving Record
9. $1000 Driver Responsibility Fee for 2 years

While there are a number of differences between the various Offenses, the most significant that separate any 1^st Offense from a 2^nd Offense is the potential for up to 1 year in Jail, and the fact that a person’s License will be Revoked for at least 1 full year. A revoked license in this sense means “gone.” There is no possibility of any Restricted License, as this action is mandated by Law, without exception, and is imposed by the State, and not the Court. The Court has NO power to allow or grant any kind of Restricted License, even if it wanted to. However, and, not surprisingly, there is an exception.

As of January 1, 2011, A Restricted License can be granted to a DUI 2^nd Offender if, and only if, that person participates in a State-sanctioned Sobriety Court program, and the Judge grants such a License. Anyone whose case is pending in a jurisdiction without a Sobriety Court, or anyone who does not apply for, or is not granted entry into a Sobriety Court program, will have to deal with the previously mentioned standard License Revocation for at least 1 year.

These License consequences are very important, and later in this section, I will put them under the microscope. For now, however, we will turn our attention to the biggest and first concern most people have: “Am I going to Jail?”

Obviously, the first and best way to resolve a DUI is to “beat” it. And make no mistake; a DUI case can be won. In fact, a few months before the publication of this section of my website, I had 2 DUI cases, pending in 2 different Courts, “knocked out” on the same day.

The first order of business in any DUI case is to examine the evidence. While there are endless potential reasons that a DUI case may be compromised (and note the use of our new, favorite word, “potential”), there are really 2 main areas where a challenge to the evidence is most often made.

The first is the Traffic Stop itself. I have an entire separate section of this website devoted to that whole topic, so there’s no need to reprint it here, beyond observing that the reason or reasons for the Police contact in the first place must meet certain minimum legal requirements.

Assume Officer Bob is walking down a residential street one evening. As he passes a house, he notices a car parked in front, and hears the clicking and clacking sound an engine makes after the car has been turned off and sitting for a few minutes. Officer Bob places his hand on the hood, which he observes to still be very warm, meaning the car had been running recently. He then notices a wallet lying in open view, on the passenger seat, where anyone could simply lean in and take it, because both driver and passenger windows are rolled down.

Officer Bob walks up to the house in front of which the car is parked, and rings the doorbell. A man with a bottle of beer in his hands answers the door. His eyes are red, and it’s clear he has been drinking quite a bit. He invites Officer Bob in the living room, where 4 more men are sitting, each drinking a bottle of beer. Officer Bob asks if anyone has left their wallet in a car parked outside, and each man, in turn, stands up, feels in his back pocket, and in an obviously slurred voice, says “no.” Officer Bob notices that the 3rd man appeared to be missing his wallet. He seems the drunkest of them all. Officer Bob figures this is the guy who was driving the car, so he Arrests him for DUI.

This kind of case would be a DUI Lawyer’s dream. There is no “probable cause” to Arrest man #3, and this case would be “knocked out” rather easily.

However, most DUI’s don’t go down that way. In fact, when we use the term “pulled over,” we usually mean the person charged with the DUI was observed to have been driving by the Police, and was stopped while behind the wheel. Of course, almost every police report ever written makes a very good case for stopping the vehicle. Do you really think a Police Officer is going to go back and write a report that says something like “I didn’t actually see the driver do anything wrong, but I had a hunch, so I pulled him over anyway?”

Of course not!

Video evidence often comes into play. If the Officer, in his or her report, states that he or she observed the driver weaving, and there is patrol car video of the stop that shows otherwise, then a solid basis to challenge the stop is present.

There are loads of other examples, but the larger point here is that one of the most fruitful and

productive areas for challenging the evidence in a DUI case is the “stop” itself.

The second main area for challenging the evidence in a DUI case is the breath or blood test results, or, better yet, the lack of them. While perhaps uncommon, it is not unheard of for a DUI charge to have been brought without the person ever having given a breath or blood test.

More often, a successful challenge to this chemical evidence is made to the method by which it was gathered or tested. There are, quite literally, volumes that have been written about this, but the larger point is that there are plenty of things that can be wrong about what, at first look, appears to be a solid breath or blood test.

I will investigate it thoroughly in the same way that good surgeon will carefully review his or her patient’s x-rays (or other important diagnostics) before performing an operation.

Given the consequences of a 2^nd Offense DUI, it really makes little sense to NOT carefully and competently investigate the evidence.

In the next Section, we will continue our examination of a 2^nd Offense DUI and pick up by answering the questions “Am I going to Jail?” and “What’s going to happened to me?”

>>NEXT: Second (2^nd) Offense DUI - Part 2