Your Second DUI Arrest
With regard to a 2nd DUI conviction anywhere in California and not just San Diego you have the potential to have the first DUI removed from your record in terms of what you now have to deal with. This can be done by challenging the constitutionality of your first DUI. That is according to Vehicle Code sections 23624 and 41403. Additionally, even if a your first DUI conviction was challenged and you lost you can still challenge it again but only if an appellate court decision (announced after challenged) has created a new basis on which to challenge the constitutionality of your first DUI conviction. However, you should know that this is very difficult if your first conviction was in the same jurisdiction as your present case.
You can "move to strike the prior" by filing a motion with the court specifying the deprivation of constitutional rights according to Vehicle Code §41403(a). This motion must not only be served (given) to the court on your first DUI but also the prosecutor in your current case at least five court days before the hearing.
At the hearing, the prosecution has the initial burden of producing evidence of the separate conviction sufficient to justify a finding that the defendant has a separate conviction. The defendant then has the burden of proving by a preponderance of the evidence that his or her constitutional rights were infringed in your first case and if you meets this burden, the prosecution has a right to produce rebuttal evidence. At the end of this hearing the court must make a finding based on the evidence, and must strike the separate conviction from the accusatory pleading if the court finds that the separate conviction is constitutionally invalid. However, you should know that you do not have the right under federal or state constitutions to challenge prior convictions on grounds of "ineffective assistance of counsel." For those with out-of-state prior convictions who can not attack a "prior DUI" on the grounds of lack of waivers of right to jury trial, right to confront witnesses, and privilege against self-incrimination, unless there is evidence that these procedural requirements were in place at time of your guilty plea.
If you do not comply with the five-day notice requirement or you don't produce the evidence required the court has the option of hearing your motion at the time of sentencing on your current case instead of continuing your case, except that, if good cause is shown for the failure to provide notice or produce the required evidence, the court must grant a continuance for a reasonable period. Additionally, the prosecution may appeal, before judgment, an order striking a separate conviction according to People v Kirk (1992) 7 CA4th 855, 858 - 860, 9 CR2d 270.
If for some reason you can't get the first DUI off of your record then the following is what you might expect as a punishment from a typical court in San Diego following a guilty plea or being found guilty at trial. However, please be aware that the following is a range of punishments and an individual judge may impose harsher penalties than are listed here. As always please consult with an attorney for more specific information about the court and judge that you have to appear in front of.
SECOND OFFENSE (within Ten years)
- 4 days in jail (some courts allow work release);
- Attend and complete an 18 month alcohol/drug program;
- A fine of at least $390 but no more than $1,000;
- A mandatory penalty assessments (no more than $1,000);
- A 1 year license suspension (no work restriction allowed);
- Public work service (if blood alcohol level high or accident);
- Mothers Against Drunk Drivers (MADD) impact panel;
- Installation of ignition interlock (IID).