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.