A third DUI offense in California is a serious offense that can impact your life. The prison term is longer, the penalties are increased, and the chance of losing your license and your freedom becomes much more real. If facing charges, you might be overwhelmed, frustrated, and not know what to do next. You want to retain an experienced lawyer to fight your charges.
At San Diego DUI Attorney, we know the system, the stakes, and what strategies are effective. We handle each case individually, whether it is fighting DMV/court license revocations, negotiating down the charges, or alternative sentencing. You will be given the attention, dignity, and respect you deserve regardless of your past.
Overview of the DUI Process in California
Once you have been arrested on your third DUI in California, the officer will take your driver’s license immediately. Instead, you will be given a pink DL-389 form, a 30-day temporary license, which will enable you to drive temporarily. The next step you take is vital.
You only have 10 calendar days after the date of your arrest to notify the DMV and request an Administrative Per Se (APS) hearing. Failure to do this within this window will automatically lead to suspension of your license after 30 days. It is your initial opportunity to contest the suspension of your license and start defending yourself.
DMV Hearing Process
The DMV hearing is not part of your criminal court case. It does not concern itself with whether you are guilty or not, but only with your driving privileges. Although the DMV hearing focuses only on your driving privileges, its outcome strongly influences the criminal case. The more skilled the attorney representing you is, the more likely you are to retain your license.
The DMV will answer four key questions during the hearing:
- Did the police officer have probable cause to pull over your car?
- Did you have any reason to think you were driving under the influence?
- Did you have a BAC of 0.08 or more when you were arrested?
- Have you previously been convicted of two DUI-related offenses within the last 10 years?
After examining the evidence, the administrative judge will decide to either:
- Postpone your license suspension pending your criminal case conclusion
- 12-month administrative suspension.
Remember, even though you may win the DMV hearing and retain your license temporarily, a subsequent conviction in criminal court will still cause a mandatory suspension. Similarly, where the DMV suspends you but subsequently acquits you in court, you can appeal the administrative suspension.
Criminal Court Proceedings for a Third DUI
In your criminal case, the prosecution has to establish all the elements of the crime beyond a reasonable doubt. In California, this requires proving the following in the case of a third DUI conviction:
- At the time of the arrest, you were driving a motor vehicle.
- When you were driving, you:
- Were intoxicated, or
- Had a blood alcohol concentration (BAC) of 0.08 percent or more,
- Were under the influence of drugs,
- Were addicted to a non-alcoholic drug or another controlled substance.
- In the past decade, you had two previous DUIs or faced similar charges, including a wet reckless.
Provided that the prosecution is able to establish all these factors to the satisfaction of the jury, you will be convicted of a third offense DUI, which is a charge that is subjected to some of the harshest misdemeanor punishments under California law.
Sentencing Stage
In case the jury gives a guilty verdict, your case will proceed directly to sentencing. This is where the court decides the precise punishment depending on the facts of your case, any aggravating or mitigating factors, and arguments presented by your defense attorney.
An experienced DUI attorney can make a difference in this. They can show proof of your situation, treatment attempts, or absence of previous serious crimes. These may, at times, convince the judge to cut your jail term or provide alternatives like house arrest, work furlough, or a live-in rehabilitation program.
Even when you are convicted, good legal representation can be your best asset to reduce the long-term harm.
Penalties for a Third DUI Conviction in California
The third DUI offense in California has much harsher punishment compared to the first or second offense. The court takes you as a recidivist, and you will likely face mandatory minimums and harsh probation terms. In case of conviction, this is what you are likely to face
- At least 120 days and not more than 1 year in county jail
- Penalty assessments and fines of between $2,500 and $3,000, including penalty assessments
- 3-5 years of informal probation under strict conditions, including:
- You cannot have any amount of alcohol in your body and drive
- You are required to undergo chemical tests in case of any future DUI arrest
- You should not engage in any other crimes on probation
- Completion of a 30-month court-approved DUI school program
- Mandatory Ignition Interlock Device (IID) installation for 2 years
- Suspended driver’s license for 3 years. However, you can be eligible to drive with a restricted license and an IID.
Breakdown of License Suspension
- Criminal Court Suspension
If you are convicted of a third DUI, the criminal court will automatically suspend your license for a three-year suspension. This is regardless of whether you were previously convicted of DUIs in another state or were reduced to wet reckless charges. This penalty cannot be reduced by the court when the defendant is convicted.
- DMV Suspension
The DMV may administratively suspend your license at an APS hearing. Should you lose this hearing or not request one within 10 days of your arrest, the DMV will automatically suspend your license for one year.
In case you lose the court case and the DMV hearing, the suspensions are concurrent. This will mean you will serve the longer suspension of three years and not four years.
- IID Restricted Driving Privileges
Even though you have been suspended, you can get restricted driving privileges by installing an IID in your vehicle. After the IID is installed, you are free to drive anywhere you need to go, whether it is work, school, appointments, or errands, with no restrictions.
This two-year IID mandate will provide you with an avenue to retain some independence and not get into additional legal trouble with driving on a suspended license.
Aggravating Factors That May Enhance Penalties
The above-outlined penalties are the most common ones, but they may be aggravated in case your case has aggravating circumstances. These include:
- BAC of 0.15 percent or more at the moment of arrest
- Declining to take a breath or blood test
- Underage driving
- Presence of a child below 14 years in the car
- Speeding or careless driving habits
- DUI causing injury, death, or property damage
Is It Possible to Avoid Jail?
When you are charged with a third DUI offense, it is easy to be overwhelmed by the idea of spending 120 days or more in county jail. Luckily, there are exceptions to this under California law. Your attorney can argue that you should be given a jail alternative, particularly where you can demonstrate that you are willing to change and that you do not present a further threat to society.
You might be able to serve your sentence by:
- House arrest: It is also referred to as electronic monitoring, and it enables you to spend your time at home, but with restrictions on where and when you can travel.
- Work furlough: This alternative allows you to work during the day and go back to a specific facility at night and on weekends.
- Live-in residential treatment programs: Inpatient rehab is a viable alternative to jail that courts tend to consider a significant option, particularly when substance abuse is a factor causing your multiple DUI offenses.
How to Reduce or Dismiss Charges
The only sure method of escaping jail is to fight the charges. A skilled DUI attorney can look at the facts of your case and find the holes in the prosecution’s evidence and seek to have the charges reduced or dismissed. Some typical plea bargains are:
- Wet reckless: A lesser crime, which still accepts the presence of alcohol but with less heavy punishment and no jail time.
- Dry reckless: A non-alcohol driving offense that does not have many DUI penalties.
- Display of speed: An accusation that is occasionally employed as a last resort when the evidence of impairment is weak.
Legal Third DUI Defense Strategies
Because you are on your third DUI does not mean that you are automatically going to be convicted. With a proper legal approach, you can weaken the prosecution’s evidence or even have the case dismissed.
Insufficient Reasonable Suspicion or Probable Cause
The police have to have a reasonable suspicion that you have violated traffic laws or were involved in a crime before they can pull you over. Probable cause implies that there should be visible evidence that you were driving under the influence. This may involve activities such as switching lanes, red light, speeding, or sudden braking. Should the officer fail to identify certain, articulable facts that warranted the traffic stop, then the traffic stop can be considered illegal.
Although the initial stop may be legal, the police then need to have probable cause to make a DUI arrest. This may be slurred speech, smell of alcohol, unsteady gait, or failure to pass field sobriety tests. Without those indicators, or when the field tests are not performed properly, the grounds of the arrest become legally dubious.
An experienced DUI lawyer may question the reasonableness of a stop and arrest. In the event that one of them is proven to be unwarranted, the court can suppress the ensuing evidence, which can be a major blow to the case of prosecution.
Increasing Blood Alcohol Defense
The rising blood alcohol defense is anchored on the scientific fact that alcohol does not directly flow into the bloodstream when it is consumed. Rather, it may take between 30 minutes and two hours before your blood alcohol concentration (BAC) reaches its peak, which is dependent on a number of factors, including your weight, what you have eaten, and the amount you have consumed.
In case you had a drink a few minutes prior to being pulled over by the police, your BAC at the moment you were actually driving could have been under the legal limit of 0.08%. But by the time a breath or blood test was given, sometimes 20 to 45 minutes later, your BAC might have increased to the level of being over the limit, and it would seem that you were over the limit when you were driving.
Such a difference between your BAC when you were driving and the BAC when you were tested can create reasonable doubt as to whether you were legally impaired when you were driving. An experienced DUI defense attorney will be able to consult with toxicology experts to examine the timing and claim that your BAC was legal at the time you were actually driving.
False Positive Test Results
Breath and blood tests are commonly regarded as the final word in DUI cases. However, the truth is that these chemical tests are not always reliable. False positive readings can be caused by a variety of medical, physiological, and procedural factors, resulting in elevated BAC readings that may not indicate your actual level of impairment at the time of driving.
A popular offender is gastroesophageal reflux disease (GERD) or acid reflux. Such conditions may lead to the backflow of alcohol from the stomach to the esophagus and into the mouth, leading to residual mouth alcohol. As breathalyzers are made to measure the alcohol in the lungs, alcohol in the mouth can distort the result, indicating a BAC that is much higher than the real one.
In the same way, some low-carb or high-protein diets, including the ketogenic diet, may lead your body to produce acetone, a naturally occurring chemical that some breath-testing devices may confuse with ethanol. This may give you a false reading even when you have not taken any alcohol.
Moreover, dental problems, including recent dental procedures, bridges, or crowns, may hold tiny quantities of liquor in the mouth and cause artificially high readings on breath tests. There are also some drugs and mouthwash that can affect test accuracy.
Illegal DUI Checkpoints
In California, sobriety checkpoints are legal provided law enforcement strictly adheres to constitutional and procedural protections. DUI checkpoints are legal as ruled by the U.S. Supreme Court and the California courts, although they have to satisfy certain conditions to be valid. Failure to adhere to these requirements can make any resulting arrest unconstitutional, and the evidence obtained can be suppressed.
A DUI checkpoint should follow the following state-required guidelines in order to be lawful:
- Advance Public Notice: The police have to provide a warning to the community, like press releases or local news. This openness ensures motorists are not randomly exposed to checkpoints.
- Supervisory Decision-Making: All decisions on the location, setup, and operation of the checkpoints should be made by a supervising officer and not a field officer to prevent discriminatory enforcement.
- Neutral Screening Criteria: Police officers should use an impartial formula, for example, every third car, to determine which cars to stop. They are not allowed to exercise discretion and pull drivers over based on their looks or their perceived actions.
- Safety Precautions: They should have sufficient lighting, signs, and warning equipment to guarantee the safety of drivers and officers. The checkpoint should also be placed in a visible, reasonable place, not concealed.
- Minimal Intrusion: The checkpoint must not be a major inconvenience to motorists and should only bring short delays.
False Test Results
The precision of chemical testing equipment and procedures is not assured even in cases where the police have used the standard DUI procedures. There are a number of technical problems that can undermine the reliability of your test results—they can be challenged in a court of law.
Faulty Breathalyzer Calibration
Breathalyzers have to be well-maintained and well-calibrated to give the correct BAC readings. When a breathalyzer is not calibrated, it may give wrong or false results. Under California law, these devices are to be tested and maintained regularly. In the event that it is recorded that the device utilized in your case had not been calibrated or checked as required by the regulation, the results may be nullified by your attorney in the court of law.
Blood Samples Contaminated
Blood samples can be easily contaminated or fermented in case of improper handling, storage, or testing. The evidence may be compromised by failing to store the sample with the appropriate preservative chemicals or by loss of chain of custody. In other instances, alcohol may even be generated in the vial by microbial activity, resulting in a false high BAC. Your lawyer will be able to subpoena the lab records and interrogate the lab technicians to reveal any procedural mistakes.
Testing Personnel Lapse of Certification
Breath and blood tests can only be administered by properly trained and certified persons who are legally allowed to do so. In case the officer or technician who administered your test was not up to date with their certification or did not adhere to the approved procedures, the test results could be considered inadmissible. A competent DUI defense attorney can examine these personnel records and present a case to have contaminated evidence excluded.
Expungement After a Third DUI Conviction
Although you might be found guilty of a third DUI in California, it is not the end of the world as far as your record is concerned. After you have served the full sentence of your case, including probation, you can apply to have the conviction expunged under Penal Code 1203.4.
Expungement does not remove the DUI from your criminal record, but it changes the outcome of the case. In case it is granted, the court substitutes your guilty plea or conviction with a dismissal, and your record shows that the case was dismissed in the interest of justice.
This implies that future employers, landlords, and other people who may check your criminal record will notice that you have made legal efforts to address the issue.
Eligibility Requirements
In order to be eligible to have a third DUI conviction in California expunged, you must:
- Have successfully served probation
- Have no outstanding criminal charges
- Not be serving a sentence for another offense
You are qualified in case you were sentenced to jail and probation as opposed to state prison. Nevertheless, expungement will not reinstate your driving privileges, erase the DUI on your DMV record, or keep the DUI off your record as a prior in the event that you are charged with another DUI within 10 years.
The First Steps to Take after a Third DUI Arrest
The third DUI in California can be paralyzing, but what you do within the next few hours and days can mean a lot as to how your case turns out. Taking prompt action and being under proper advice will place you in the most favorable light to secure your rights and future.
- Do Not Ignore the DMV Deadline
You have 10 days after your arrest to request an administrative hearing with the DMV. Otherwise, your driver’s license will be automatically suspended, even before your criminal case is presented to court. The request for the hearing stays the suspension and allows you to contest it. A DUI attorney may file this request on your behalf, and your defense may be prepared immediately.
- Call a DUI Lawyer Immediately
The sooner you engage a good DUI attorney, the better. Your lawyer is able to:
- Demand and inspect police reports and chemical test results
- Represent you in a DMV hearing
- Determine whether there were any procedural mistakes or infringements of your rights
- Start building a defense strategy to minimize or drop charges
- Keep All Evidence and Records
Write all you can recall about the stop, arrest, and contact with the police. Keep receipts, texts, call records, and anything that can prove your side of the story. Even minor details may turn into solid evidence in court.
- Do Not Talk About Your Case
Do not discuss your arrest with anyone except your attorney. Everything you say to your friends, on social media, or even in a casual conversation may be used against you in court. Make all communications confidential and channel questions through your lawyer.
- Dedication to Compliance
In case you have been released on bond or bail, ensure that you follow all the court orders and terms. Show up to all hearings, do not drive on a suspended license, and start any suggested classes or treatment. Compliance demonstrates to the court that you are taking the issue seriously, and it can be useful when it comes to negotiating sentencing or alternatives to jail.
Contact an Experienced DUI Attorney Near Me
A third DUI in California is a serious charge that you should not fight alone. Due to the harsh sentence you could be subject to, you should hire a DUI attorney. At San Diego DUI Attorney, we are a team of guidance, discretion, and unwavering advocacy when you need it the most. Our team has extensive experience with third and even fourth DUI offenses across San Diego County. To have a free consultation or learn more about your charges, call us at 619-535-7150 today.
