Wednesday, January 7, 2009

New California DUI law for drunk driving probationers in California - .01%!

California DUI criminal defense attorneys and California DUI & DMV defense lawyers at www.SanDiegoDUI.com announce a new law.

Beginning in January 1, 2009, 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. 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:

(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 your license for these above new codes:

(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 vehicle for violation of §§23154 or 13389, as well as "double the fine zone" in some cases.

It is best to all with prior DUI convictions to respect the required probation term of zero tolerance after January 1, 2009.


On October 14, 2007, the Governor of California signed a number of bills. 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:

(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 your license for these above new codes:

(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 vehicle for violation of §§23154 or 13389, as well as "double the fine zone" in some cases.

It is best to all with prior DUI convictions to respect the required probation term of zero tolerance after January 1, 2009.

San Diego California Criminal Defense Attorney Rick Mueller recently spoke at the California Attorneys For Criminal Justice annual DUI seminar in Rancho Mirage, California: http://www.cacj.org/Events/forms/DUI%20Brochure%20Final.pdf