Saturday, September 12, 2009

California DMV has proof problems under the statutes - elements of the probation violation must fail under present California DUI laws

Over 21 California DUI License Suspension Actions should be set aside under present .01% probation violation legislation

Although the Legislature amended CVC 13353.2(a), operative January 1, 2009, to include CVC § 23154 violators, it neglected to amend CVC 13557(b)(2)( A) and (B) to include CVC § 23154. bench, .01% or higher BAC actions in CVC § 23154 cases should be set aside in all contested cases DMV if the person is over 21 years of age. For those probationers who refuse the roadside testing: The Legislature neglected to amend CVC § 13353.1(d)(1) to include CVC § 23154 violations. Hence, in order to uphold a one, two, or three year suspension based on a refusal to submit to testing under CVC § 23154, the DMV must prove the probationer violated CVC 23136 (cop had reasonable cause to believe person was under 21 and driving with a .01 or higher). Again, unless the Legislature amends, it shouldn't stick.

California DMV has proof problems under the statutes. The elements of the probation violation must fail under present law.

Again, unless the Legislature amends this statute or the courts legislate from the bench, contested refusal actions in CVC § 23154 cases should be set aside in all DMV contested cases where the person is over 21 years of age. After all, CVC 13558(c)(1) specifically states that the only issues for APS refusal hearings are set forth in CVC 13557(b)(1), which requires proof that the cop had reasonable cause to believe there was a violation of either 23136, 23140, 23152, or 23153 (23154 is not listed!). If the Legislature had properly drafted the laws, the elements for a violation of 23154 would be: 1. the person was, at the time of driving, on probation for a violation of Section 23152 or 23153, 2. the person had consumed an alcoholic beverage, 3. the person 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.

California DUI Attorney Specialist Rick Mueller is a Superb-Rated San Diego County Drunk Driving, DUI & DMV Defense attorney with experience since 1983. Known as the "DMV Guru," Rick Mueller dedicates 100% of his law practice to aggressively defending these cases. DUI Specialist Rick Mueller is the only DUI attorney who was the featured Speaker at 7 DUI seminars in San Diego County in the last several years. Rick is known as the "DMV Guru". On August 1, 2009, Rick lectured about "Attacking & Defending DUI Cases" at the Mexican American Bar Association's Annual DUI Seminar at Loyola Law School, Los Angeles. On September 27, 2008, Rick lectured at the California Attorneys for Criminal Justice DUI - DMV Seminar . On March 28, 2008, Rick spoke at Strategies in Handling DUI Cases in California. Rick is the Editorial Consultant for California Drunk Driving Law, the most comprehensive reference book for California DUI law. The book features much of Rick's hard work. California Drunk Driving Law is recognized by thousands of California attorneys and judges as "The Bible of Drunk Driving Defense". Rick is a Specialist Member of the California DUI Lawyers Association (CDLA). Rick is a very active San Diego member of the National College for DUI Defense (1997 Winter Session Graduate; 2001 Winter Session Graduate; 2004 Winter Session Graduate; 2006 Winter Session Graduate; 2007 Winter Session Graduate; 2008 Winter Session Graduate; 2009 Winter Session).