Monday, October 15, 2007

Zero Tolerance for California DUI probationers

Dui defense attorneys news

Beginning in 2009, New Years Day to be exact, drivers on probation for any DUI conviction face zero tolerance if they drive on California highways with a blood or breath alcohol concentration of .01% or higher. On October 14, 2007, the Governor of California signed a number of bills and there is one main one to learn now and advice your clients of appropriately.

New Vehicle Code §§23154 and 13389, and the amended 13353.1, have come to life per AB 1165 introduced by Assembly Member Maze (Coauthors: Assembly Members Sharon Runner and Spitzer) February 23, 2007.

These sections take effect on January 1, 2009 according to the Legislature' s enrolled document.

New Vehicle Code §23154 states:


23154. (a) It is unlawful for a person who is on probation for a
violation of Section 23152 or 23153 to operate a motor vehicle at any
time with a blood-alcohol concentration of 0.01 percent or greater,
as measured by a preliminary alcohol screening test or other chemical
test.
(b) A person may be found to be in violation of subdivision (a) if
the person was, at the time of driving, on probation for a violation
of Section 23152 or 23153, and the trier of fact finds that the
person had consumed an alcoholic beverage and was driving a vehicle
with a blood-alcohol concentration of 0.01 percent or greater, as
measured by a preliminary alcohol screening test or other chemical
test.
(c) (1) A person who is on probation for a violation of Section
23152 or 23153 who drives a motor vehicle is deemed to have given his
or her consent to a preliminary alcohol screening test or other
chemical test for the purpose of determining the presence of alcohol
in the person, if lawfully detained for an alleged violation of
subdivision (a).
(2) The testing shall be incidental to a lawful detention and
administered at the direction of a peace officer having reasonable
cause to believe the person is driving a motor vehicle in violation
of subdivision (a).
(3) The person shall be told that his or her failure to submit to,
or the failure to complete, a preliminary alcohol screening test or
other chemical test as requested will result in the suspension or
revocation of the person's privilege to operate a motor vehicle for a
period of one year to three years, as provided in Section 13353.1.

Note that at this time, there is no additional punishment defined in the statute so presumably only a probation violation will exist - other sanctions could also be introduced in the next session now that this has all passed though.

A refusal of the PAS by a person under 21 or in alleged violation of 23154 can also be punished administratively - under 21 by our current §13388 or in 2009 by the new Vehicle Code §13389 which states:


13389. (a) If a peace officer lawfully detains a person
previously convicted of Section 23152 or 23153 who is driving a motor
vehicle, while the person is on probation for a violation of Section
23152 or 23153, and the officer has reasonable cause to believe that
the person is in violation of Section 23154, the officer shall
request that the person take a preliminary alcohol screening test to
determine the presence of alcohol in the person, if a preliminary
alcohol screening test device is immediately available. If a
preliminary alcohol screening test device is not immediately
available, the officer may request the person to submit to chemical
testing of his or her blood, breath, or urine, conducted pursuant to
Section 23612.
(b) If the person refuses to take, or fails to complete, the
preliminary alcohol screening test or refuses to take or fails to
complete a chemical test if a preliminary alcohol device is not
immediately available, or if the person takes the preliminary alcohol
screening test and that test reveals a blood-alcohol concentration
of 0.01 percent or greater, the officer shall proceed as follows:
(1) The officer, acting on behalf of the department, shall serve
the person with a notice of an order of suspension of the person's
driving privilege.
(2) (A) The officer shall take possession of any driver's license
issued by this state that is held by the person. When the officer
takes possession of a valid driver's license, the officer shall
issue, on behalf of the department, a temporary driver's license.
(B) The temporary driver's license shall be an endorsement on the
notice of the order of suspension and shall be valid for 30 days from
the date of issuance, or until receipt of the order of suspension
from the department, whichever occurs first.
(3) (A) The officer shall immediately forward a copy of the
completed notice of order of suspension form, and any driver's
license taken into possession under paragraph (2), with the report
required by Section 13380, to the department.
(B) For the purposes of subparagraph (A), "immediately" means on
or before the end of the fifth ordinary business day after the notice
of order of suspension was served.
(c) For the purposes of this section, a preliminary alcohol
screening test device is an instrument designed and used to measure
the presence of alcohol in a person based on a breath sample.

The section doesn't discuss prior §23103 per 23103.5 convictions, only §§23152 or 23153.

Vehicle Code §13353.1 is amended by AB 1165 to assist the DMV in taking license for these above new codes:


13353.1. (a) If a person refuses an officer's request to submit
to, or fails to complete, a preliminary alcohol screening test
pursuant to Section 13388 or 13389, upon the receipt of the officer's
sworn statement, submitted pursuant to Section 13380, that the
officer had reasonable cause to believe the person had been driving a
motor vehicle in violation of Section 23136 or 23154, and that the
person had refused to submit to, or did not complete, the test after
being requested by the officer, the department shall do one of the
following:
(1) Suspend the person's privilege to operate a motor vehicle for
a period of one year.
(2) Revoke the person's privilege to operate a motor vehicle for a
period of two years if the refusal occurred within 10 years of
either of the following:
(A) A separate violation of subdivision (a) of Section 23136, that
resulted in a finding of a violation, or a separate violation, that
resulted in a conviction, of Section 23103, as specified in Section
23103.5, of Section 23140, 23152, or 23153, or of Section 191.5 or
subdivision (a) of Section 192.5 of the Penal Code.
(B) A suspension or revocation of the person's privilege to
operate a motor vehicle if that action was taken pursuant to this
section or Section 13353 or 13353.2 for an offense that occurred on a
separate occasion.

...

Other amendments to the Vehicle Code authorize a police officer to tow your client's vehicle for violation of §§23154 or 13389 as well as "double the fine zone" in some cases.

All DUI convicted probationers must now respect the required probation term of zero tolerance after January 1, 2009.