The authors of “California Drunk Driving Law” share this excellent summary of: (1) California’s new Ignition Interlock Device (IID) Restricted License amendments; and (2) the mandatory Ignition Interlock Device IID program.

The New IID Restricted License Laws—SB-598 and SB-895 (Effective: July 1, 2010)

CVC § 13352(a)(3)—IID restricted license available to second-time offenders convicted of CVC §§ 23152(a) or (b) after 90 days, unless the defendant was found by the Court to be under the influence of a drug or the combined influence of drugs and alcohol. For those who qualify, credits should be given for APS suspension time.

CVC § 13352.5—Work-related restricted license, which continues to be available to second-time offenders after 12 months of suspension, without the need for an Ignition Interlock Device; but the IID restricted license referred to above would still be available to the same offender after just 90 days of suspension.

CVC § 13352(a)(5)—IID restricted license available to third-time offenders convicted of CVC §§ 23152(a) or (b) after 180 days, unless the defendant was found by the Court to be under the influence of a drug or the combined influence of drugs and alcohol. For those who qualify, credits should be given for APS suspension time.

CVC § 13353.3(2)(B)—APS suspension for multiple offenders administratively suspended for excessive blood alcohol levels, who are also convicted of a CVC § 23152 offense arising out of the same incident, may have the APS suspension terminated if IID restricted license obtained pursuant to 13352(a)(3) or (5).

Questions That Remain Unanswered By These New Statutory Amendments:

1. Will the law be applied retroactively to persons convicted before July 1, 2010?

The latest information we have is that it is going to be applied prosectively only.*

2. Will persons suffering an excessive BAC one-year suspension, but who are not also convicted of a CVC § 23152 offense arising out of the same incident, be allowed to terminate the APS suspension with installation of an IID?

The written law does not provide for it; but a denial of it lacks a rational basis and leads to an absurd result.

3. Will the DMV continue to impose a license suspension/revocation for second and third time offenders convicted of drug-related CVC § 23152 convictions, even though CVC § 13352(a)(3) and (5) have been amended to only trigger a suspension or revocation for alcohol-only CVC § 23152 offenses?

Independent Mandatory IID Pilot Program For Persons Convicted In Alameda, Los Angeles, Sacramento, and Tulare Counties (effective July 1, 2010):

CVC § 23700 requires the DMV to maintain a pilot program from July 1, 2010 through January 1, 2016 in Alameda, Los Angeles, Sacramento, and Tulare counties, requiring ignition interlock devices for all vehicles owned or operated by DUI offenders. The duration period for the device is as follows:

CVC § 23152 conviction CVC § 23153 conviction

First Offense: 5 months & 12 months

Second Offense: 12 months & 24 months

Third Offense: 24 months & 36 months

Fourth Offense or More: 36 months & 48 months

These IID Orders are to be issued and monitored by the DMV upon receipt of the abstract of conviction, and verification is required before a driver’s license may be issued, reissued, or returned to the licensee after a suspension or revocation of that person’s driving privilege. 

CVC § 23700(a)(3)—Actual operation of this new statute is subject to funding approval which has apparently been provided by the federal Office of Transportation.

There are a number of exemptions that defendants may seek with the DMV within 30 days of receiving its IID Order. See CVC § 23700(a)(8) for the complete list. 

IID devices are not required for motorcycles, but those subject to the IID requirement may not operate their motorcycle during the IID restriction period. See CVC § 23700(e).

These IID requirements should only apply to convictions with violation dates July 1, 2010, or later, but it remains to be seen if the DMV will attempt to apply it to all convictions in these counties suffered July 1, 2010, or later, regardless of the violation date.*

California Drunk Driving Law (Kuwatch, Burglin & Simons)

Criminal defense attorneys have for years joked that it seemed that there was a DUI exception to the Constitution when laws and procedures that would be clearly unconstitutional in other contexts are upheld by courts when applied to driving under the influence.  Now, the Chief Justice of the United States Supreme Court has recognized that such an exception does indeed exist.

Justice Roberts, in a dissent joined by Justice Scalia, wrote to protest that the U.S. Supreme Court had denied review of a case where the Virginia Supreme Court had overturned a DUI conviction because the police had pulled over a driver based on an anonymous tip. Virginia v. Harris, 558 U.S. ____ (2009).   The Virginia Supreme Court felt that the U.S. Constitution and previous U.S. Supreme Court decisions prevented the police from acting on uncorroborated anonymous information.  Most states, including California, have ruled that the police may stop drivers suspected of driving under the influence based solely on anonymous information, and even without any specific evidence of impaired driving, but merely that the driver is “drunk.”  See People v. Wells, 38 Cal.4th 1078 (2006).  Other states, including now Virginia, have ruled that the police must have some corroboration of anonymous information before detaining a person.  Roberts seemed to disagree, writing “I am not sure that the Fourth Amendment requires independent corroboration before the police can act, at least in the special context of anonymous tips reporting drunk driving.”  [Emphasis added].  Roberts was especially concerned about the 13,000 allegedly DUI related deaths each year.  He went on to note that “this court has in fact recognized that the dangers posed by drunk drivers are unique, frequently upholding anti-drunk-driving policies that might be constitutionally problematic in other, less exigent circumstances.” [Emphasis added]. There it is, in writing.  Drunk driving warrants exceptions to the Constitution.  At least they have finally come out and said so.

While nobody argues that driving under the influence can be dangerous, it might help to put the 13,000 deaths a year in some context.  According to the latest data available from the Centers for Disease Control and Prevention, heart disease is our greatest killer, taking over 630,000 of us each year. (Deaths: Final Data for 2006, National Vital Statistics Reports, Vol. 57, no. 14, April 17, 2009).  That’s over 48 times more deaths than DUI.  Maybe the police should be able to stop you for a quick cholesterol and blood pressure check. It would save far more lives.  Cancer takes another 560,000 each year, and strokes another 137,000. Id.  DUI related deaths wouldn’t make it even in the top 15 causes of deaths.  Firearms accounted for over 30,000 deaths, which included 54.6% homicides and 41.4% suicides. Id.  In fact, there were 18,573 homicides in 2006, which is 30% more than the DUI related deaths. Id.  If an anonymous tip of a well described person carrying a gun at a bus stop is insufficient probable cause to justify a stop (see Florida v. J.L., 529 U.S. 266 (2000), given the prevalence of gun related violence just noted, then how can the court justify stopping drivers on similarly uncorroborated tips, just because alcohol might be involved. It is not illegal to drink and drive. It is illegal to drive when the driver is impaired by alcohol.  The police should have to have some evidence of impairment before they can stop a driver. In the balancing of freedom versus safety, Virginia made the right decision.

Just before the New Year, the Law Office of Barry T. Simons wants to provide everyone with a few new law changes that go into effect in 2009.  Some have been addressed in previous posts, but they are now being provided in a summary fashion for quick referencing:

1.     No-Text Law—Texting While Driving (Senate Bill 65)

This new law makes it an infraction to write, send, or read text based communications on an electronic wireless communication device, including emails, while driving a motor vehicle. 

Previously this was only illegal for those under 18-years of age with the passage of the hands-free law change in July of 2008; however, it has now been extended to all drivers.

2.     DUI Probationers Zero Tolerance Law (Assembly Bill 1165)

This new law prohibits a person who has been convicted of driving under the influence and is on probation from driving a motor vehicle with a blood or breath alcohol level of 0.01% or more as measured by a preliminary alcohol screening test or other chemical test.  If the driver refuses to submit to, or fails to complete the test, or if the person is found to have been driving with a blood or breath alcohol level of 0.01% or greater, the person will be subject to a license suspension by the California Department of Motor Vehicles’ and issued a citation.  Additionally, the driver’s vehicle is subject to impound.

3.     Alcohol Related Reckless Driving (Assembly Bill 2802)

This new law requires a court to order a person convicted of an alcohol-related reckless driving, (commonly referred to as a wet reckless), to attend a drunk driving alcohol program of at least nine (9) months in length if that person has a prior driving under the influence or alcohol related reckless driving conviction within the last ten (10) years.  This law change can be found under Vehicle Code § 23103.5(f)(1) and § 23103.5(f)(2).

4.     Ignition Interlock Device (IID) (Senate Bill 1190)

This new law allows courts to give additional consideration for the installation of an ignition interlock device (IID) to those offenders who have a blood alcohol concentration of 0.15% or greater.  This new law reduces the blood alcohol level from 0.20% or greater to 0.15% or greater to trigger the requirement.

5.     Ignition Interlock Device (IID) (Senate Bill 1388)

This new law allows the California Department of Motor Vehicles to require any driver convicted of driving on a suspended license due to a prior driving under the influence (DUI) conviction to install an ignition interlock device (IID) in any vehicle the offender owns or operates.  This is an expansion on the previous law that required courts to impose this condition on those drivers convicted of driving on a suspended license due to a prior driving under the influence (DUI) conviction to install an ignition interlock device (IID) in any vehicle the offender owns or operates because now the authority rests solely with the California Department of Motor Vehicles and is required at the time the Department receives notification of the conviction.

The California Legislature is routinely passing laws to generate additional revenue.  This new law change is just another example of it.

First came the Hand-Held Wireless Telephone: Prohibited Use Statute (Vehicle Code 23123), which made it unlawful for a person over 18 years of age to drive while using a wireless telephone unless that telephone was specifically designed and configured to allow hands-free listening and talking, and is used in that manner while driving.  Drivers under the age of 18 were prohibited from using any electronic devices while driving.   This law went in to effect on July 1, 2008; but it contained one minor loophole: it did not prohibit text messaging.  As a result, the California Department of Motor Vehicles reports that another new law will go into effect to close the loophole: the no-text law.   

The new law, starting January 1, 2009, prohibits writing, sending, or reading a text-based communication while driving for all drivers in California.  This law will apply to electronic wireless communication devices used to manually communicate with any person using text-based communication, including, but not limited to, communications referred to as a text message, instant message, or electronic mail.  Thus, no texting while driving!

To date, California Connecticut, New York, New Jersey and Washington are the only states that ban all drivers from using hand-held phones. The New Jersey and Washington state laws also prohibit text messaging.  Alaska and Minnesota recently approved their own bans on text messaging. 

Now the inclusion of such a seemingly trivial law change in a DUI Defense Specialist’s blog may initially seem odd to you; but the purpose of apprising readers of these new law changes is to advise drivers that conducting either of these prohibited acts may provide police officers with a reason to pull you over.  Thus if you have been driving after consuming alcohol, and you are pulled over for either one of these new law violations, regardless of how well you may have been driving before the officer allegedly observed you violating either one of these new law violations, you could be stopped, detained and questioned regarding whether the alcohol you consumed affected your ability to safely operate a motor vehicle in violation of the California Drunk Driving Laws.  Thereafter you could be arrested and charged with driving under the influence and need the assistance of a DUI Specialist to determine whether or not what the officer allegedly observed constituted an actual violation of the new laws.

You thought the DUI laws could not get any worse, but guess what, the California Legislature has found a new way to punish anyone who drinks and drives while on probation for a DUI conviction.  Perhaps it is a way to raise additional revenue, but in the end, everyone pays.

It is already a mandatory condition of probation that a probationer not drive with a measurable amount of alcohol (0.01% or more) in his or her system pursuant to California Vehicle Code 23600(b)(2).  Moreover, driving with a blood alcohol concentration of 0.04% or more is supposed to be a mandatory probation revocation if it gets reported to the Court pursuant to California Vehicle Code 23600(d).  Now a new law will subject probationers to a zero-tolerance law coming into effect on January 1, 2009. 

This new zero tolerance law will trigger a driver’s license suspension in addition to a probation violation.   If the probationer submits to a preliminary alcohol screening test or other chemical test that yields a result of 0.01% or more, the probationer’s driver’s license will be suspended for one year with no opportunity for a restricted and/or provisional driver’s license.  Of course, the suspension cannot be imposed without first having an administrative hearing before the Department of Motor Vehicles.  If the probationer refused to, or failed to complete, either a preliminary alcohol screening test or other chemical test, the probationer’s driver’s license will be suspended for two-to-three years depending on whether the probationer has any prior convictions.  Again, there would be no opportunity for a restricted and/or provisional driver’s license, and, of course, the suspension or revocation cannot be imposed without first having an administrative hearing before the Department of Motor Vehicles.  This is why a probationer charged with this offense should contact a DUI Specialist immediately to represent him/her at the hearing.

The new law will not retroactively change the probation conditions; it will simply expose probationers to enhanced penalties if they commit the new offense and compel them to submit to a preliminary alcohol screening test or other chemical test if the officer has probable cause to believe that the probationer had been driving in violation of the zero-tolerance law applicable to them by way of the new statute.

New California Vehicle Code § 23154 states:

(a) It is unlawful for a person who is on probation for a violation of Vehicle Code 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.

A refusal to submit to the preliminary alcohol screening test or other chemical test can also be punished administratively pursuant to 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 Vehicle Code 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.

Vehicle Code § 13353.1 has been amended to assist the California Department of Motor Vehicles in taking the licenses of probationers for these new law violations.  New Vehicle Code § 13353.1 states:

(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.

(3) Revoke the person’s privilege to operate a motor vehicle for a period of three years if the refusal occurred within 10 years of any of the following:

(A) Two or more separate violations of subdivision (a) of Section 23136, that resulted in findings of violations, or two or more separate violations, that resulted in convictions, 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, or any combination thereof.

(B) Two or more suspensions or revocations of the person’s privilege to operate a motor vehicle if those actions were taken pursuant to this section, or Section 13353 or 13353.2, for offenses that occurred on separate occasions.

(C) Any combination of two or more of the convictions or administrative suspensions or revocations described in subparagraph (A) or (B).

(b) For the purposes of this section, a conviction of an offense in any state, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or Canada that, if committed in this state, would be a violation of Section 23103, as specified in Section 23103.5, or Section 23140, 23152, or 23153, or Section 191.5 or subdivision (a) of Section 192.5 of the Penal Code, is a conviction of that particular section of the Vehicle or Penal Code.

(c) The notice of the order of suspension or revocation under this section shall be served on the person by the peace officer pursuant to Section 13388 and shall not become effective until 30 days after the person is served with that notice. The notice of the order of suspension or revocation shall be on a form provided by the department. If the notice of the order of suspension or revocation has not been served by the peace officer pursuant to Section 13388, the department immediately shall notify the person in writing of the action taken. The peace officer who serves the notice, or the department, if applicable, also shall provide, if the officer or department, as the case may be, determines that it is necessary to do so, the person with the appropriate non-English notice developed pursuant to subdivision (d) of Section 14100.

(d) Upon the receipt of the officer’s sworn statement, the department shall review the record. For the purposes of this section, the scope of the administrative review shall cover all of the following issues:

(1) Whether the peace officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23136.

(2) Whether the person was lawfully detained.

(3) Whether the person refused to submit to, or did not complete, the test after being requested to do so by a peace officer.

(e) The person may request an administrative hearing pursuant to Section 13558. Except as provided in subdivision (e) of Section 13558, the request for an administrative hearing does not stay the order of suspension or revocation.