THE ADMINISTRATIVE PER SE (APS) HEARING PROCESS (PART III)

 

This is the third part in the series: The Administrative Per Se Hearing Process.  This part addresses the types of Administrative Per Se Hearing Actions & Penalties.

 

TYPES OF APS HEARING ACTIONS & PENALTIES

 

Any person, whether a licensee of the State of California or a licensee of another state, who is ether caught driving with a blood alcohol concentration of 0.08% or more or refuses or fails to complete a chemical test, is subject to a suspension under the California Vehicle Code.  Before any suspension action can be sustained, every licensee must be afforded “notice” and “an opportunity to be heard.”  This means that in addition to notice of the suspension action, every licensee also has an opportunity to be heard, meaning, he/she has the right to present evidence to invalidate any attempt by the California Department of Motor Vehicles’ to impose a suspension.

 

A person subject to this type of suspension action gets this opportunity to be heard at an Administrative Per Se (APS) Hearing, which is held not before a judge, but a hearing officer.  A hearing officer is an employee of the California Department of Motor Vehicles who not only presents and argues the Department’s of Motor Vehicles’ case, but also sits as the judge and jury.  The hearing officer therefore serves as both the prosecutor and the judge in these hearings.

 

In support of its case the Hearing Officer presents sworn documentary evidence, similar to an affidavit, instead of live testimony from the arresting officer.  The Hearing Officer accepts these sworn written statements of the officer as a truthful and accurate account of why the officer stopped you, why he/she arrested and charged you for driving under the influence, and what the results of your chemical test were.  Unless you request a hearing within ten (10) calendar days of your arrest, your suspension action will be sustained on these documents alone.  The only way to ensure that the officer’s statements are a true and accurate account of what actually happened is to request an Administrative Per Se (APS) hearing.

 

The issues to be resolved at chemical test refusal and/or forced blood test hearings are:

1. The officer had reasonable cause to believe you had been driving a motor vehicle in violation of the California Drunk Driving Laws.
2. You were placed under lawful arrest supported by probable cause;
3. The person refused or failed to complete a chemical test or tests after being requested to do so by a peace officer; and;
4. Except for persons incapable of refusing, the person had been told that his/her privilege to drive would be suspended or revoked if he or she refused to submit to, and complete, the required testing.

If the department determines, by a preponderance of the evidence, that any of these facts are not proven, the department shall set aside the order of suspension or revocation and, provided the person is otherwise eligible, return or reissue the person’s driver’s license.

 

The issues to be resolved at blood alcohol concentrations of 0.08% or more hearings are:

1. The officer had reasonable cause to believe you had been driving a motor vehicle in violation of the California Drunk Driving Laws.
2. You were placed under lawful arrest supported by probable cause; and
3. You were driving with a blood alcohol concentration of 0.08% or more.

If the Department determines that any of these facts are not proven by a preponderance of the evidence, the department shall set aside the order of suspension or revocation and, provided that the person is otherwise eligible, return or reissue the person’s driver’s license.

 

If you fail to request a hearing, or lose your hearing, you will be subject to the following administrative penalties concerning your privilege to drive under the California Vehicle Code:

 

First Offense Blood Alcohol Concentration of 0.08% or More

 

• A four (4) month suspension that can be modified to a restriction after thirty (30) days of a hard suspension (no driving whatsoever).

 

First Offense Refusal or Forced Blood Test

 

• A one (1) year hard suspension (no driving whatsoever) that cannot be modified to a restriction for any reason.

 

Second Offense Blood Alcohol Concentration of 0.08% or More

 

• A one (1) year hard suspension (no driving whatsoever) that cannot be modified to a restriction under any circumstances.

 

Second Offense Refusal or Forced Blood Test

 

• A two (2) year hard suspension (no driving whatsoever) that cannot be modified to a restriction under any circumstances.

 

Third Offense Blood Alcohol Concentration of 0.08% or More

 

• A one (1) year hard suspension (no driving whatsoever) that cannot be modified to a restriction under any circumstances.

 

Third Offense Refusal or Forced Blood Test

 

• A three (3) year hard suspension (no driving whatsoever) that cannot be modified to a restriction under any circumstances.

 

	Under-21 With .01 Or Higher BAC	.08 Or Higher BAC	Refusal
No Prior Conviction Or Administrative Action Within 10 Years—Offense Date to Offense Date	One Year After 30 days, “Critical Need” Restriction Eligible SR-22	Four Months After 30 days, Restriction Eligible Unless New Arrest SR-22	One Year No Restriction Eligibility SR-22
One Prior Conviction and/or Administrative Action Within 10 Years—Offense Date to Offense Date	One Year No Restriction Eligibility SR-22	One Year No Restriction Eligibility SR-22	Two Years No Restriction Eligibility SR-22
Two or more Convictions and/or Administrative Actions Within 10 Years —Offense Date to Offense Date	One Year No Restriction Eligibility SR-22	One Year No Restriction Eligibility SR-22	Three Years No Restriction Eligibility SR-22

 

As the chart above illustrates, the penalties are harsh.  This is precisely why it is absolutely critical that you hire an attorney who knows the procedural and substantive law that applies to these hearings.  These hearings are difficult to win, but they can be won.  With so much riding on them, can you really afford not to hire an attorney who does not know how to win the hearing?

 

For more on Administrative Per Se Hearings, and the process and laws relating to it, please see our other blog entries under the California Department of Motor Vehicles’ Administrative Per Se (APS) Hearing heading.

 

For general information on California Drunk Driving Law, or representation for a DUI charge, please contact the Law Office of Barry Simons at: 949-497-1729 or visit our website at: www.duilawyerorangecounty.com.

 

DISCLAIMER: This website and blog are intended for use by those seeking general information relating to California drunk driving law.  The reader should be aware of the fact that California DUI laws and legal procedures such as those presented in this website are constantly changing.  Consequently, any statute, law, or procedure discussed herein may have been changed as a result of drunk driving laws, judicial court decisions, or California Department of Motor Vehicles (DMV) license suspension rules, regulations, policies or procedures enacted since similar information was posted on this website.

 

Moreover, the information provided here is not intended to be legal advice and should not be relied upon as such because there is no substitute for consulting with a qualified DUI Specialist.  Accordingly, the reader is strongly advised to consult with a DUI Specialist and anyone with a legal problem should immediately obtain legal representation and advice from an attorney with extensive experience handling California DUI Defense cases. 

 

The Law Office of Barry T. Simons assumes no liability whatsoever for any use of this website or blog as it is provided for informational purposes only and is not intended to be legal advice from this office or from any attorney working for this firm.  Rather, the information contained in this website and blog are intended to initiate further, subsequent discussions between the reader having a specific legal problem and a qualified DUI attorney.  All readers are informed that no attorney-client relationship is intended nor formed by any use of this website or blog and all readers are advised, in line with the Rules of the State Bar of California, that the only way to form an attorney-client relationship with The Law Office of Barry T. Simons is to execute a binding retainer agreement.

 

Now that the Department of Motor Vehicles is gaining even more power with the passage of new legislation, understanding just how the California Department of Motor Vehicles operates is critical in formulating the appropriate defense to one’s DUI case.  Because California Drunk Driving laws are constantly changing, it is important to hire a DUI Specialist to represent anyone facing a charge of driving under the influence, particularly when there is an administrative hearing before one of the California Department of Motor Vehicles’ Driver Safety Offices.

When one is arrested for driving under the influence, they will likely be required to appear before a DMV Hearing Officer for an Administrative Per Se Hearing.  During this hearing, the Hearing Officer will determine whether a suspension action will be imposed.  The suspension action could be as short as four months or as long as a few years.

Contrary to popular belief, DMV CASES CAN BE WON.  Many people think that if their blood or breath test resulted in a reading of 0.08% or more they will automatically lose their license.  This is not true.  There are numerous technical and scientific defenses that can be used, including the failure to strictly comply with the California Code of Regulations and other laws and regulations which can and do result in administrative suspension actions being set aside. 

THE CREATION OF THE APS LAWS & HEARING

The drunk driving driver’s license suspension laws were created by and through the Drunk Driving Prevention Act of 1988. The driving under the influence driver’s license suspension laws were created to expeditiously remove the licenses of those persons accused of driving under the influence.  The California Department of Motor Vehicles calls this process “Admin Per Se” or “Administrative Per Se” and it took effect on July 1, 1990 (Stats. 1989, Chap. 1460 (SB 1623)).

APPLICABLE STATUTES GOVERNING THE APS PROCESS

The California Department of Motor Vehicles’ “Admin Per Se” hearings and its processes are conducted according to the provisions of the Vehicle Code and the Government Code, which contain the “California Administrative Procedure Act”.  They are also conducted in accordance with the due process clauses of the federal and State of California constitutions, as well as the applicable case law that has developed as a result of the creation of this statutory scheme.

Vehicle Code § 14112, in conjunction with Government Code § 11400(b), states that anything not covered by the Vehicle Code is to be controlled by the Administrative Procedure Act, contained in Government Code §§ 11370 et seq.  Additionally, Government Code § 11410.10 requires the Administrative Procedure Act to apply to the “Admin Per Se” process.

The “Administrative Procedure Act” contains an “Administrative Adjudication Bill of Rights” in Government Code §§ 11425.10 et seq.  The Administrative Procedure Act also contains an “Administrative Adjudication Code of Ethics,” in Government Code §§ 11475 et seq.  In the Administrative Adjudication Bill of Rights, the Legislature codified the licensees’ rights under the Fourteenth (14^th) Amendment of the United States’ Constitution and concomitant clauses of the California Constitution.  Specifically, Government Code §11425.10, provides:

(a)   The governing procedure by which an agency conducts an adjudicative proceeding is subject to all of the following requirements:

(1)   The agency shall give the person to whom the agency action is directed notice and an opportunity to be heard, including the opportunity to present and rebut evidence.

Despite the due process protections afforded every licensee under both the “Administrative Adjudication Bill of Rights” and the “Administrative Adjudication Code of Ethics,” the Administrative Procedure Act exempts the California Department of Motor Vehicles adjudicative process from the “separation of functions” provisions of the Act contained in Government Code § 11425.30.  This exemption is contained in Vehicle Code § 14112(b) and it allows hearing officers to serve as both the proponent of the evidence, e.g., the prosectuor, and the trier of fact, e.g. the judge and jury.

In addition to this abnormality in the law, even though Government Code § 11512(a) requires that a hearing officer be an administrative law judge, Vehicle Code § 14104.2(a) specifically states that there is no requirement that a California Department of Motor Vehicles’ hearing officer be an attorney.  For that matter, the hearing officer need not have any formal legal training.

A licensee can find additional “Administrative Per Se” hearing procedures in Title 13, California Code of Regulations, §§ 115.01 through 115.09, and §§ 440.00 et seq.  These sections relate to the conduct of the “Administrative Per Se” hearings under Vehicle Code §§ 14100 et seq.  Furthermore, because an “Administrative Per Se” hearing is a civil proceeding, the Code of Civil Procedure controls anything not otherwise covered by either the California Vehicle Code or Government Code. See: Arnett v. Office of Administrative Hearings (1996) 49 CA4th 332, 342, 56 CR2d 774).

DUE PROCESS: NOTICE & OPPORTUNITY TO BE HEARD

Before any suspension and/or revocation action can be imposed, every licensee must be afforded proper “notice” and “an opportunity to be heard”.  This notice is provided by and through the Administrative Per Se Temporary Driver’s License Endorsement that is served on the licensee upon his/her release from jail by the law enforcement official or agency that made the arrest.

California Vehicle Code § 14100(c) requires the notice of suspension to feature the notice of the right to hearing in a “prominent” manner.  In addition, the driver must be served a non-English notice when required, such as when the person only speaks Spanish.  If, at the time the licensee is released from jail the arresting officer fails to serve the notice on the licensee, the California Department of Motor Vehicles may serve the notice by mail.

Pursuant to Vehicle Code § 13380, law enforcement agencies are required to send, within five (5) business days, the appropriate sections of the DS-367 Form to the Department of Motor Vehicles’ Driver Safety Office within the law enforcement agency’s jurisdiction.  The DS-367 contains: (1) the Officer’s Sworn Statement and, if the licensee refused a chemical test, the Chemical Test Admonition; and (2) a copy of the Administrative Per Se Suspension/Revocation Order and Temporary License Endorsement indicating that the person arrested was advised of the pending administrative suspension action.

The arresting officer also sends the Department copies of the following documents: (1) the breath test results; (2) the California Driver’s License of the licensee that the arresting officer confiscated at the time of arrest; (3) a copy of the citation, if one was issued; (4) a copy of the police report, and, if applicable, (5) a copy of the traffic collision report.  If a blood or urine test was taken, the officer must immediately have the sample forwarded to the appropriate forensic laboratory.  The forensic laboratory then forwards the results of the chemical tests to the same Department of Motor Vehicles Driver Safety Office within 15 calendar days of the date of the arrest.  These are currently being sent electronically and are admitted into evidence as part of the record unless either party objects to their admission on some evidentiary ground.

Unless there is a deficiency in the documents, these documents, and these documents alone, serve as the basis upon which the Hearing Officer will make his/her determination of whether a suspension action can be imposed.  Because it is the documents, and not the testimony of any law enforcement officer, that will result in the imposition of a suspension action, it is important to hire an attorney who specializes in these types of administrative per se hearings to determine whether the Department of Motor Vehicles’ documentary evidence is legally sufficient to sustain a suspension action.  If the Department of Motor Vehicles’ documentary evidence is not legally sufficient to sustain a suspension action, the matter must be set aside and the license must be returned the licensee.  This would mean that no suspension action would be imposed.

For more on Administrative Per Se Hearings, and the process and laws relating to it, please see our other blog entries under the California Department of Motor Vehicles’ Administrative Per Se (APS) Hearing heading.

For general information on California Drunk Driving Law, or representation for a DUI charge, please contact the Law Office of Barry Simons at: 949-497-1729 or visit our website at: www.duilawyerorangecounty.com.

DISCLAIMER: This website and blog are intended for use by those seeking general information relating to California drunk driving law.  The reader should be aware of the fact that California DUI laws and legal procedures such as those presented in this website are constantly changing.  Consequently, any statute, law, or procedure discussed herein may have been changed as a result of drunk driving laws, judicial court decisions, or California Department of Motor Vehicles (DMV) license suspension rules, regulations, policies or procedures enacted since similar information was posted on this website.

Moreover, the information provided here is not intended to be legal advice and should not be relied upon as such because there is no substitute for consulting with a qualified DUI Specialist.  Accordingly, the reader is strongly advised to consult with a DUI Specialist and anyone with a legal problem should immediately obtain legal representation and advice from an attorney with extensive experience handling California DUI Defense cases. 

The Law Office of Barry T. Simons assumes no liability whatsoever for any use of this website or blog as it is provided for informational purposes only and is not intended to be legal advice from this office or from any attorney working for this firm.  Rather, the information contained in this website and blog are intended to initiate further, subsequent discussions between the reader having a specific legal problem and a qualified DUI attorney.  All readers are informed that no attorney-client relationship is intended nor formed by any use of this website or blog and all readers are advised, in line with the Rules of the State Bar of California, that the only way to form an attorney-client relationship with The Law Office of Barry T. Simons is to execute a binding retainer agreement.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

An Analysis of Driving Under the Influence (DUI) Checkpoints

 

In light of the recent surge in the amount of DUI Checkpoints, and DUI Roving and DUI Saturation Patrols in Orange County and the entire State of California, an explanation of the legal requirements for a constitutionally permissible DUI Checkpoint is being posted for visitors to our informational database.

 

DUI Checkpoints began subsequent to a 1984 California Attorney General’s Opinion that set out what were intended to be strict guidelines for the legality of drunk driving roadblocks.  As a result of the Attorney General’s Opinion, many police departments and the California Highway Patrol (CHP) began using them to apprehend drunk drivers.  Roadblocks carried out pursuant to those strict guidelines have been approved by the California Supreme Court in Ingersoll v. Palmer (1987).  In this 4-3 decision the court stated, “We conclude that within certain limitations, a sobriety checkpoint may be operated in a manner consistent with the Federal and state Constitutions.” The decision stressed a theme of “balancing the need to search against the need the search entails.”

 

In 1990, the U.S. Supreme Court gave general approval to the use of roadblocks to enforce drunk driving laws in Michigan Dep’t of State Police v. Sitz (1990).  Nothing in the U.S. Supreme Court’s decision in Michigan Dep’t of State Police v. Sitz criticized the guidelines approved by the Ingersoll Court, nor did it recommend any others.

 

The Ingersoll guidelines fall under the following general headings:

 

1.     Decision Making at the Supervisory Level

2.     Limits on Discretion of Field Officers

3.     Maintenance of Safety Conditions

4.     Reasonable Location

5.     Time and Duration

6.     Indicia of Official Nature of Roadblock

7.     Length and Nature of Detention

8.     Advance Publicity

 

Subsequent to the Ingersoll decision, the Courts of Appeal came to conflicting decisions about the role of advanced publicity in constitutionally valid checkpoints.  The California Supreme Court took up the issue, though, in People v. Banks in 1993.  In Banks, the California Supreme Court held that advanced publicity is not an essential element of a constitutionally valid DUI roadblock.  The Court held that although advance publicity remains a factor to consider, the lack of advanced publicity alone will not render a roadblock unconstitutional.  Thus, the issue of whether there was adequate advanced publicity is still subject to judgment on a case-by-case basis.

 

A common challenge to DUI Checkpoints or roadblocks is the lack of uniformity in the operation of the DUI checkpoint. Regarding the issue concerning the limits on discretion by field officers the California Supreme Court in Ingersoll v. Palmer noted the following:

 

A related concern is that motorist should not be subject to the unbridled discretion of the officer in the field as to who is to be stopped. Instead, a neutral formula such as every driver or every third, fifth or tenth driver, should be employed. To permit an officer to determine to stop any particular driver or car when there is no legitimate basis for the determination would be to sanction the kind of unconstrained and standardless discretion which the United States Supreme Court sought to circumcise in its decision in Prouse, supra, [citations omitted]. In all the checkpoint programs at issue here, neutral mathematical selection criteria were used.

 

Id., at 1342 (emphasis added).

 

Every car, every third car, or every fifth car is neutral.  A change in patterns to adjust for traffic flow is also neutral, so long as there is still a neutral mathematical formula for the change.  What is prohibited is an unjustified deviation from the pattern which negates the neutral mathematical formula. If the pattern suddenly changes randomly, an inference of non-neutrality arises. 

 

Decision making at the supervisory level and limits on discretion of field officers are key points in all checkpoint-type cases.  As the California Supreme Court noted in Ingersoll: “In all checkpoint programs at issue here, neutral mathematical selection criteria were used.”

 

Regarding the citizen’s right to avoid the stop, the Ingersoll Court stated:

 

Checkpoint personnel were specifically instructed that drivers were not to be stopped merely for avoiding the checkpoint. The road sign announcing the checkpoint was placed sufficiently in advance of the checkpoint that motorists could choose to avoid the checkpoint.

 

A footnote added:

 

5.         Cars avoiding the checkpoint would be stopped, however, if in avoiding the checkpoint the driver did anything unlawful… (Emphasis added.)

 

Ingersoll, at 1336 (emphasis added).

 

Statistics for 1990 CHP roadblocks were published in 1992 in California Master Plan to Reduce Alcohol and Drug Abuse: 1992 (Sacramento, CA: Department of Alcohol and Drug Programs, Jan. 1992) p. B-88. According to this report, the CHP conducted 84 roadblocks during 1990 with only 599 arrests for drunk driving. The cost was nearly $250,000.00. That’s about 7 arrests per roadblock, at a cost of over $400.00 for each arrest, for the roadblock alone.

 

If you or anyone you know was recently stopped at a DUI Checkpoint, and was arrested and charged with driving under the influence (DUI), please contact the Law Office of Barry T. Simons by telephone at: 949-497-1729.  You may also send a confidential contact form via email to: info@simonslaw.com.  The form can be found on our website: www.duilawyerorangecounty.com.  Anyone who has been subjected to a DUI Checkpoint is encouraged to contact the Law Office of Barry T. Simons as soon as possible for a free legal consultation.  The call could make the difference between a person being convicted of a DUI or being acquitted of it.  It only takes one simple contact. 

 

For general information on California Drunk Driving Laws, California DUI Laws, and representation for driving under the influence, generally, please contact our office or our website at: www.duilawyerorangecounty.com.

 

For a copy of the NHTSA How-to-Guide on Saturation Patrols & Sobriety Checkpoints, please visit:

 

http://www.nhtsa.dot.gov/people/injury/alcohol/saturation_patrols/index.html

Summary of New Law Changes for 2009

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.

New Vehicle Code § 23154—Zero Tolerance for DUI Probationers

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.

A Brief Message About This California Drunk Driving Law Blog

Welcome.  This blog is meant to assist both lawyers and non-lawyers alike in understanding California Drunk Driving Laws.  As authors of the treatise: “California Drunk Driving Law“, which is recognized by thousands of California attorneys and Judges as “The Bible of Drunk Driving Defense“™, the main purpose of the blog is to keep the general public informed of the law as it relates to DUI.

This blog is focused, at least primarily, on recent developments in California Drunk Driving Law.  Some of it contains Legalese (legal writing that is oftentimes difficult to read and understand); but let’s face it, DUI laws, and cases analyzing them, are oftentimes complicated and confusing.  This is why it is important to retain a DUI Specialist to defend a person charged with driving under the influence.  It could potentially stand between that person suffering a conviction for driving under the influence or avoiding it.

What makes us experts on DUI defense?  Barry T. Simons has been defending those accused of driving under the influence for over 35 years.  The lawyers at the Law Office of Barry T. Simons are trained and educated in the unique aspects of DUI defense and have presented cases and lectured at seminars all over the country, including the highly specialized intensive program presented by the National College for DUI Defense (NCDD) and the California DUI Lawyers Association (CDLA).   

Barry T. Simons

Barry is a nationally recognized expert in DUI Defense.  He was the Assistant Dean and Dean of the National College for DUI Defense (NCDD) and one of its Founding Members.  Mr. Simons currently serves on that organization’s 12-member Board of Regents.  He is one of only 5 attorneys in the State of California to hold Board Certification in DUI Defense.

In 2001, Mr. Simons was selected to serve as Vice-Chair of the DUI Advocacy Committee of the National Assn. of Criminal Defense Attorneys.  He is currently on the Board of Directors of the California Association of DUI Lawyers and has qualified as a Specialist Member.  Mr. Simons is rated “Preeminent” by Martindale-Hubbell and has been selected to “Who’s Who In American Law“.  Mr. Simons is also the co-author of California Drunk Driving Law, considered the Bible of DUI Defense.

In addition to being the Assistant Dean and Dean of the National College for DUI Defense (2007-2009), Mr. Simons has lectured extensively on the following DUI subjects over the last ten years: 

• “The Jury Insight Project-A Scientific Investigation Into Juror Attitudes In DUI Cases” National Association of Criminal Defense Lawyers (October, 2007)
• “Techniques for Opening and Closing Arguments” California State Bar Conference—Criminal Law Section (Anaheim, September 2007)
• “We The Jury Seminar” (March 24, 2007)
• “Handling Administrative Per Se Proceedings: Excessive BAC (.08) & Refusals” Deuce-A-Rama: How to Defend DUI Cases 79^th Annual Meeting of the State Bar of California-Criminal Law Section (Monterey, October 7, 2006)
• “How to Become the Ace of the Deuce” California Attorneys for Criminal Justice Rules of The Road Seminar (September 29, 2006)
• “Latest Law Changes & Sentencing Update” California DUI Lawyers Association (San Francisco, May 20, 2006)
• “The Defense Perspective” International Assoc. for Chemical Testing (Anaheim, April 25, 2006)
• “Final Argument” California Attorneys for Criminal Justice (Rancho Mirage, September 24, 2005)
• “Deuce-A-Rama: How to Defend DUI Cases” California State Bar Conference—Criminal Law Section (San Diego, September 10, 2005)
• “Opening Statements” National College For DUI Defense (Conducted at Harvard Law School, July 2005)
• “Taking on the DMV in 2005″ California DUI Lawyers Association (April 2005)
• “Jury Summation According to the Code of the West” California State Bar Conference—Criminal Law Section (Monterey, October 7, 2004)
• “Breath Testing Challenges to the Alco-Sensor IV” California Attorneys for Criminal Justice (Palm Springs, September 11, 2004)
• “Using Technology in Closing Arguments” National College for DUI Defense Breakout Session (Conducted at Harvard Law School, 2004)
• “Persuasive Narrative Techniques for Opening and Closing Arguments” National College for DUI Defense-Breakout Session (Conducted at Harvard Law School, July, 2004)
• “Bring Your Own File Workshop – Interesting Cases And Creative Solutions” National Association of Criminal Defense Lawyers (Las Vegas, October 16, 2003)
• “Alco Sensor IV XL Point of Arrest, Title 17 Compliant Breath Testing: The Defense’s New Best Friend” California Attorneys for Criminal Justice (Palm Springs, September 20, 2003)
• “Deuce-A-Rama: Steering Clear in DUI Representations and Practices” California State Bar Conference-Criminal Law Section (Anaheim, September 6, 2003)
• “Making Mountains Out of Molehills” National College For DUI Defense (San Antonio, Texas, January 24, 2003)
• “Attacking Faulty Science With Creative Motions” California State Bar Conference – Criminal Law Section ( Monterey, California, October 13, 2002)
• “Cross-Examination of The Arresting Officer Workshop” National Association of Criminal Defense Lawyers ( Las Vegas, Nevada, October 4, 2002)
• “Dealing With PAS Tests After People v. Williams” California Attorneys For Criminal Justice (Palm Springs, Sept. 29, 2002)
• “Cross-Examination of the Arresting Officer” Symposium Moderator, National College of DUI Defense (Conducted at Harvard Law School July 24, 2002)
• “21st Century Technology For The Defense of DUI Cases: Use of Computer Animation and Power Point To Get To The Point” South Orange County Bar Association (May 14, 2002)
• “Interstate License Issues” National College For DUI Defense (February 15, 2002)
• “Using Technology In Closing Arguments” National Association of Criminal Defense Lawyers (Las Vegas, October 4, 2001)
• “Medical Issues In DUI Cases: Turn Your Client Into A Patient and Win” South Carolina Bar Association (September, 2001)
• “Science and Innovative Motions for DUI Cases” State Bar of California 2001 Convention (September 8, 2001)
• “Attacking The Prosecutions Scientific Evidence Through Creative Motions” National College For DUI Defense (Conducted at Harvard Law School, July 25, 2001)
• “Science And Its Application To DUI Motion Practice” Criminal Law Section of the California State Bar Assn. (San Francisco, June 23, 2001)
• “How I Would Change The DMV Hearing Process and Why” Department of Motor Vehicles of the State of California Driver Safety Conference (April 5, 2001) (DMV Hearing Officer Training)
• “Creative Attacks At The DMV: How To Save Your Client’s License” West Orange County Bar Association (December 5, 2000)
• “Medical Issues In DUI Defense: Turn Your Client Into a Patient” Difficult DUI’s and Tragic Consequences, National Association of Criminal Defense Lawyers (Las Vegas, September 21-23, 2000)
• “Fascinating Insights In: Driving Under the Influence and DMV Proceedings By Recognized Experts” State Bar of California Criminal Law Section, 2000 Annual Meeting of the State Bar (September 17, 2000)
• “Forensic Alcohol Supervisors Course” (Instructor) California Criminalists Institute, California Department of Justice (September 14, 2000)
• “Tools For The DUI Law Office” National College For DUI Defense (Conducted at Harvard Law School, July 29, 2000)
• “DMV Writs and Appeals An Orange County View” Assn. of California Deuce Defenders (Los Angeles, March 16, 2000)
• “Winning Strategies At The DMV” Association of California Deuce Defenders (Orange, California, January 19, 2000)
• “The Implications of Nelson v City of Irvine” ( Atlanta, Georgia, December 10, 1999)
• “Handcuffing the Prosecution In Closing Argument-Avoiding Prosecutorial Misconduct” National College of DUI Defense ( Kansas City, Kansas, December 3, 1999)
• “Writs and Half Wits-Appeals of DMV Hearings, State Bar of California (San Francisco, 1999)
• “Refusals and Medical Twists” National College For DUI Defense (Conducted at Harvard Law School, 1999)
• “Strategies in Handling DUI Cases in California” (San Diego, 1999)
• “Unlicensing the Datamaster in Orange County”, South Orange County Bar Association (Laguna Beach, 1999) (4700 Breath Tests Invalidated In Orange County)
• “Multiple Aspects of Driving Under the Influence” The State Bar of California (Long Beach, October 2, 1999)
• “Rules of the Road II: Trial of a DUI Case, Motions: Win It At The Starting Gate” California Attorneys For Criminal Justice ( Los Angeles, September, 1999)
• “Forensic Alcohol Supervisors Course” (Instructor) Hosted by California Department of Justice And Orange County Sheriff’s Forensic Science Services (1998)
• “Pre-Trial Motion Practice in DUI Cases” California Attorneys for Criminal Justice Seminar (Berkeley, 1998)
• “Motions-What, How to and When” DUI Defense Seminar (Los Angeles, 1998)
• “Interstate Implications of DUI’s, National College of DUI Defense (Boston, 1998)
• “Multiple Aspects of Driving Under the Influences Cases” State Bar of California (Monterey, 1998)
• “Case Scenarios” Mastering Scientific Evidence in DUI/DWI Cases (New Orleans, 1997)

Alan Castillo

Alan Castillo is a 2002 Summer Session Graduate; 2003 Summer Session Graduate; 2004 Summer Session Graduate; and 2007 Winter Session Graduate of the National College for DUI Defense (NCDD) and a member of the California DUI Lawyers Association (CDLA).

Mr. Castillo has also participated in legal writings before the Federal Ninth Circuit Court of Appeal and the U.S. Supreme Court. In addition, he has participated in Federal Civil cases before the U.S. District Court in the City of Los Angeles.  Mr. Castillo has also written extensively in the area of California Drunk Driving Law as an Editor to the treatise: California Drunk Driving Law.

Alan Castillo has lectured on the following DUI subjects: 

• “The In-Person Approach To DMV Hearings” California DUI Lawyers Association (San Francisco, May 20, 2006)
• “Out-Of-State Licensee Issues” Georgia State Bar (Atlanta, February 16, 2006)  
• “Taking on the DMV in 2005″ California DUI Lawyers Association (Los Angeles, April 23, 2005)
• “Writ Procedures/Briefs & Government Code § 800 Attorney Fees” Deuce Defenders/California DUI Lawyers Association ( San Francisco, August 24, 2002)

Ronald L. Moore

Ronald Moore is a 2008 Winter Session Graduate and 2008 Summer Session graduate of the National College for DUI Defense (NCDD) and a member of the California DUI Lawyers Association (CDLA). 

Mr. Moore is the former supervisor of the Orange County Sheriff-Coroner, Forensic Science Services, the forensic alcohol laboratory for the government.  Mr. Moore spent over 18 years with the Orange County Crime Laboratory specializing in: (1) Driving Under the Influence (DUI) cases, (2) the identification of controlled substances, firearms and toolmark examination, and (4) homicide/OIS field investigations (CSI).

Mr. Moore is also the former chair of the International Association for Chemical Testing committee on accreditation and individual certification.  Before leaving the Orange County Crime Laboratory, Mr. Moore was a member of the American Society of Crime Lab Directors / Laboratory Accreditation Board’s ad-hoc committee on ISO standards for breath testing instrument calibration laboratories. Mr. Moore also participated in many of the meetings of the Forensic Alcohol Review Committee revising the California regulations governing blood and breath alcohol testing in California pursuant to Title 17 of the California Code of Regulations.

Ronald L. Moore has lectured on the following DUI subjects:

• “Cross-Examination of the State’s Expert” California DUI Lawyers Association (Irvine, January, 2008)
• “Cross-Examination of the State’s Expert” The Texas Criminal Defense Lawyers Association & National College of DUI Defense’s Mastering In Scientific Evidence Seminar (March, 2008)
• “Cross-Examination of the State’s Expert” California DUI Lawyers Association (San Francisco, April, 2008)
• “Persuasive Direct & Cross-Examinations of Experts” National College of DUI Defense (Conducted at Harvard Law School, July, 2008)

Mr. Moore has also written extensively in the area of California Drunk Driving Law as a contributor to the treatise: California Drunk Driving Law.

Peter F. Iocona

Peter F. Iocona is a 2007 Winter Session Graduate; 2007 Summer Session Graduate; and 2008 Summer Session Graduate of the National College for DUI Defense (NCDD) and a member of the California DUI Lawyers Association (CDLA).  Mr. Iocona has lectured on the following DUI subjects:

• “Effectively Handling DMV APS Hearings” California DUI Lawyers Association (Irvine, February 6, 2008)
• “Effectively Handling DMV APS Hearings” California DUI Lawyers Association (Oakland, June 5, 2008)
• “What Is Administrative Law?” Orange County Bar Association (Santa Ana, California, July 12, 2008)

Mr. Iocona has handled hundreds of Administrative Per Se Hearings and successfully argued numerous writs of erroneous DMV decisions.  Mr. Iocona has also written extensively in the area of California Drunk Driving Law as a contributor to the treatise: California Drunk Driving Law.

Marlo Cordero

Marlo Cordero has handled hundreds of Administrative Per Se Hearings and successfully argued numerous writs of erroneous DMV decisions.  She has also successfully argued several motions to suppress on insufficient probable cause and unlawful entries into people’s homes.  Ms. Cordero has also written extensively in the area of California Drunk Driving Law as a contributor to the treatise: California Drunk Driving Law.  

DISCLAIMER: This website and blog are intended for use by those seeking general information relating to California drunk driving law.  The reader should be aware of the fact that California DUI laws and legal procedures such as those presented in this website are constantly changing.  Consequently, any statute, law, or procedure discussed herein may have been changed as a result of drunk driving laws, judicial court decisions, or California Department of Motor Vehicles (DMV) license suspension rules, regulations, policies or procedures enacted since similar information was posted on this website.

Moreover, the information provided here is not intended to be legal advice and should not be relied upon as such because there is no substitute for consulting with a qualified DUI Specialist.  Accordingly, the reader is strongly advised to consult with a DUI Specialist and anyone with a legal problem should immediately obtain legal representation and advice from an attorney with extensive experience handling California DUI Defense cases. 

The Law Office of Barry T. Simons assumes no liability whatsoever for any use of this website or blog as it is provided for informational purposes only and is not intended to be legal advice from this office or from any attorney working for this firm.  Rather, the information contained in this website and blog are intended to initiate further, subsequent discussions between the reader having a specific legal problem and a qualified DUI attorney.  All readers are informed that no attorney-client relationship is intended nor formed by any use of this website or blog and all readers are advised, in line with the Rules of the State Bar of California, that the only way to form an attorney-client relationship with The Law Office of Barry T. Simons is to execute a binding retainer agreement.