2nd DUI offense in California Staying out of Jail

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2nd DUI offense in California Lawyer Mark A. GallagherThis is a question I get A LOT.  How do I stay out of jail on my 2nd DUI offense in California? If you have been charged with a 2nd DUI offense in California within 10 years you are subject to enhanced sentencing under the California Vehicle Code and part of the mandatory minimum sentence on a 2nd DUI offense in California is in fact jail time.   (From 96 hours to 1 year in county jail per the code)  You don’t want to go, but the law says you must if you are convicted of a second DUI offense in California within 10 years.  So back to our question-how do you stay out of jail on that second DUI in California?  Like most legal questions there is no blanket answer because every case is different.  But let’s look at some guidelines to help solve the riddle.

The first thing to consider? The facts of your case.   You may be reading this blog after getting your 2nd DUI offense in California in 2 months, or you may be reading this blog after getting your second California DUI 9 years and 11 months after you got the first one.   One reader could have been in an accident causing injury to another party and therefore subject to potential felony filing pursuant to VC 23153(a), and another reader could have been stopped at a DUI checkpoint that didn’t comply with constitutional standards.   So the first thing that will determine your chances of staying out of jail are the facts of your case.   And being a lawyer, I have to point out that the facts of your case are a subject of great debate.   There will of course be the police officer’s version of what happened, and then there is your version.  Perhaps there are other witnesses or evidence that can shed some light on the facts at a hearing or trial.    Maybe an expert witness or investigator can help establish favorable facts for you or eliminate or mitigate some of the less desirable ones.   And if you exercise your right to a trial by jury, only the people in that jury deliberation room can determine the facts.   So when we talk about the facts of your case, stay focused on what the prosecutor can PROVE to be the facts of your case.   If the District Attorney, City Attorney, or whoever is assigned to prosecute the case in your jurisdiction can’t prove the facts of your case, you may no longer be dealing with a jail situation.  You could be looking at a dismissal or a not guilty verdict at trial.

Step 2 in determining your chances of staying out of jail on your 2nd DUI offense in California is geographic.   Where did you get this DUI?    California is a big state.  Were you in Los Angeles? San Francisco?  Ventura? Bakersfield? There are 58 counties in the California Court system and each and every one of them has its own political climate.   Some are tough on crime others are a little more liberal.   As a practical matter it often comes down to available resources.   If the judge sentences you to jail, how long will you actually be stuck in there?   All county jails in California are required to award credits under California Penal Code 4019 for good time work time so you will get some sort of early release, but that’s where the similarity ends.   To give a local example from my practice in Southern California, let’s consider the great dividing line we call the Orange Curtain.   If you were charged with a second DUI in Los Angeles, you may be able to obtain a sentence for the mandatory minimum of 96 hours.   Many LA county prosecutors are well aware that they have no jail space and early release is the norm.  So in some sense it doesn’t matter if you get 96 hours, 10 days, or 90 days in Los Angeles County, you may be getting out quick regardless.  But cross that Orange Curtain into neighboring Orange County and you are actually looking at 90 days in jail on the exact same case for a 2nd time California DUI.  In Orange County there is no early release beyond standard PC 4019 credits, so you get time, you serve the time.

Step 3 in determining your chances of staying out of jail on your second time DUI in California is your defense strategy.   Are you going to represent yourself? Hire the lawyer who handled our buddies divorce? Ask for a public defender? Google your way out of jail? One of my favorite strategies that I hear from potential clients is “I’m going to go to court and see what the judge says and then determine if I need a lawyer”   This is a sure sign of someone WITHOUT a defense strategy.   First, most California judges will set bail at arraignment on a second time DUI.  So these people are literally walking themselves into jail when they show up “to see if they need a lawyer”.   I am guessing they probably decide “oh crap I need a lawyer” right around the time the bailiff is slipping on the handcuffs.   If you have been stopped on suspicion of a second time DUI in California, you need a lawyer, like yesterday.  Go find one.   The second problem with the “wait and see” approach is that every court appearance is an opportunity for a skilled DUI lawyer to make something good happen with your case.   The longer you wait to hire your lawyer, the less he or she can do for you.   The first appearance just may be the right opportunity to pursue alternative sentencing, or maybe it’s the pretrial, or the trial.  Only a local lawyer will know which Judge to talk to or which DA to avoid when seeking these kinds of alternatives to jail.   The longer it takes you to hire a lawyer, the less opportunities he or she will have to accomplish your goal.   I’m not saying this because I want you to hire me, go find someone else if you like, but get yourself a lawyer experienced with DUI cases and experienced with the local court where your case is pending and your chances of staying out of jail on the 2nd DUI will greatly improve.


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Whether it’s a DUI, domestic violence, suspended license, traffic tickets, or any other criminal matter, the Law Offices of Mark A. Gallagher can help. Schedule your FREE consultation below or call us at 800-797-8406. For more information, visit  www.socaldefenselawyers.com