New Kent Second Offense DUI Charges

Second offense DUI charges are normally handled more seriously than first offense DUI charges and are prosecuted more vigorously. Prosecutors and judges see a second offense as an individual that does not understand and has not taken advantage of the opportunities that were given to them the first time around.

For that reason, there is a lot less leniency for a second offense meaning that if you are facing charges of a second offense DUI in New Kent, an experienced DUI attorney is essential to building your defense.

Penalties

As a Class 1 Misdemeanor, the penalty for a second offense DUI is up to 12 months in jail and a fine of up to $2,500. However, with a second offense, there are penalty enhancements, depending on the type of second offense DUI that someone is charged with.

If a person is charged with a second offense within 10 years of the prior offense, they face a mandatory fine of $500. If they have a BAC of 0.15 or higher at the time that they were cited, they will get a mandatory fine of $1,000. Furthermore, for the second offense within 10 years, the charge has a mandatory minimum sentence of 10 days incarceration. If they have a BAC of 0.15 or higher, there is a mandatory minimum sentence of 20 days incarceration.

If someone has a BAC of 0.20 or higher, there is a mandatory minimum sentence of 30 days incarceration. If they are charged with a second offense DUI within five years, they are facing a mandatory $500 fine. If their BAC is over 0.15, they face a mandatory fine of $1,000.

A second DUI offense within five years is penalized with a mandatory minimum jail sentence of 20 days. If their BAC is 0.15 through 0.19, they can get a mandatory minimum sentence of 30 days incarceration. If their BAC is 0.20 or higher, they face a mandatory minimum sentence of 40 days.

Court Treatment

A second offense DUI in New Kent will be considered a Class 1 Misdemeanor, so while there are multiple ways that it can be adjudicated. It will originate in the general district court and will be heard by a judge. Similar to a first offense and other Class 1 Misdemeanors, someone has a right to appeal a conviction of a second offense to the circuit court, where the matter can be heard by a new judge and/or a jury.

Second offense DUIs are treated seriously. Judges have little sympathy for those charged with a second offense within five years or a second offense within ten years of the first offense DUI. Judges tend to believe that individuals charged with second offense DUIs have disrespected the court and are a threat to other drivers on the road because they do not understand the seriousness of driving under the influence. Since defendants in those cases have been through this process once before, the courts are more punitive on second offense DUI charges.

License Treatment

When arrested for a second offense DUI, if someone had a BAC of 0.08 or higher or they are charged with refusal to take the breathalyzer after probable cause for arrest, there is an administrative suspension of their driver’s license for 60 days. If they are ultimately convicted of a second offense DUI within 10 years of the first offense, their license is automatically suspended for three years, but after four months, they can petition the court for a restricted license.

If it the second conviction is within five years of the first conviction, someone’s license is automatically suspended for three years and they cannot petition the court for a restricted license until one year has passed. If they are later given the restricted license, the ignition interlock system is going to be placed in their car.

If someone’s license is suspended post-conviction, they cannot challenge the suspension of their license. If the suspension is an administrative suspension, they can challenge the probable cause of the arrest or the necessity for refusal to get their license back within the 60-day period under the preponderance of the evidence standard.

Building a Defense

There are three parts of a DUI – the stop, the test, and the influence. For the second offense DUI, since the punishments are more severe because there is mandatory incarceration, attorneys focus on the facts of the previous DUI, including when it occurred and how the court the prosecutor can prove that their client does, in fact, have a previous DUI that was within five or 10 years of the current charge.

If the previous DUI is out-of-state, the defense attorney can challenge the law to show that there is not a substantially similar conviction that would fall under the umbrella of a previous DUI. Accordingly, there is the added element of challenging the previous DUI, in addition to challenging the pending DUI charge.