California State Delegates

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DUI Laws

Summary of California Driving Under the Influence Statutes

Prohibited Vehicular Activity:

To ‘drive’ a vehicle requires volitional movement of the vehicle.

Mercer v. Department of Motor Vehicles (1991) 53. Cal.3d 753
- California is not a “physical control” state. As such, California lawyers are

urged to check the case law of other states to determine whether an out- of-state prior is subject to a motion to strike.

Covered Vehicles or Devices:

A ‘vehicle’ is defined as a device by which a person or property may be moved on a highway, except a device moved exclusively by human power or used exclusively on stationary rails or tracks.

Covered Locations:

Driving under the influence can be charged regardless of whether the driver is on public or private property.
People v. Malvitz (1992) 11 Cal.App.4th Supp. 9

Under the Influence Offenses:

  • -  “under the influence of any alcoholic beverage or drug”

  • -  “under the combined influence of any alcoholic beverage or drug”

  • -  “any person who has 0.8% or more, by weight, of alcohol in his or her

    blood”

  • -  “any person who has 0.4% or more, by weight, of alcohol in his or her

    blood to drive a commercial vehicle”

  • -  “any person who is addicted to the use of any drug to drive a vehicle”

  • -  “while under the influence of any alcoholic beverage or drug, or under the

    combined influence of any alcoholic beverage and drug, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.”

  • -  “while having 0.08% or more, by weight, of alcohol in his or her blood, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.”

  • -  “while having 0.04% or more, by weight, of alcohol in his or her blood, to drive a commercial vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.”

  • -  “under the age of 21 years who has 0.05 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.”

  • -  “under the age of 21 years and under the influence of, or affected by, an alcoholic beverage.”

    Other Criminal Offenses Involving Under the Influence Offenses:

    When a person is driving while under the influence and proximately causes the death of another person, he or she may be convicted of either:

    (1) vehicular manslaughter, if the act was without gross negligence;

    (2) gross vehicular manslaughter while intoxicated, if the act was with gross negligence; or

    (3) murder, if the act was with malice or exhibited wantonness and a conscious disregard for life. (AKA “Watson Murder”)

    People v. Watson (1981) 30 Cal.3d 290

    Degree of Impairment Required:

    A person is under the influence of an alcoholic beverage, drugs, or a combination of the two if the substance ingested so affects the nervous system, the brain, or the muscles as to impair to an appreciable degree the ability to operate a vehicle as would an ordinarily prudent and cautious person in full possession of his or her faculties using care and who is operating a vehicle that is subject to similar road conditions.

    Penalties for Driving Under the Influence Offenses:

    §23152 (misdemeanor):
    (1) No Prior Conviction: Between 96 hours, at least 48 hours of which are continuous, and six months in the county jail. Imprisonment will be on days other than days of regular employment. If 48 hours of continuous

imprisonment would interfere with the defendant’s work schedule, imprisonment will be allowed during time off from work.

(2) One Prior Conviction: Between 90 days and one year in the county jail. If defendant refused to submit to or willfully failed to complete chemical test at time of arrest, jail time enhanced by 96 hours, no part of which may be stayed.

(3) Two Prior Convictions: Between 120 days and one year in the county jail. If defendant refused to submit to or willfully failed to complete chemical test at time of arrest, jail time enhanced by 10 days, no part of which may be stayed.

(4) Three or More Prior Convictions: 16 months or two or three years in state prison OR between 180 days and one year in county jail. In either case, if defendant refused to submit to or willfully failed to complete chemical test at time of arrest, jail time enhanced by 18 days, no part of which may be stayed.

Fines ~ In All Cases: Between $ 390 and $ 1,000.

§23153 (felony):
(1) No Prior Conviction: 16 months or two or three years in state prison OR 90 days to one year in county jail.

(2) One Prior Conviction: 16 months or two or three years in state prison OR 120 days to one year in county jail.

(3) Two or More Prior Convictions: Two, three, or four years in state prison.

(4) In All Cases if Current Offense Proximately Caused Great Bodily Injury: Additional and consecutive enhancement term of three years in state prison.

(5) In All Cases If Bodily Injury or Death to More Than One Victim: Enhancement of one year in state prison for each additional injured victim, up to a maximum of three years.

Fines:

(1) No Prior Conviction Within Seven Years: Between $ 390 and $ 1,000. (2) One Prior Conviction Within Ten Years: Between $ 390 and $ 5,000.

(3) Two or More Prior Convictions Within Ten Years: Between $ 1,015 and $ 5,000.

(4) In All Cases: Additional penalty assessment of $ 50 for alcohol abuse education and prevention program. Additional assessment of up to $ 50 for cost of blood-alcohol testing, in authorizing counties, and, in most counties, based on ability to pay. Additional assessment of up to $ 100 for county alcohol and drug problem assessment program, in authorizing counties, based on ability to pay.

NOTE REGARDING MOTIONS TO SUPPRESS EVIDENCE:

The motion to suppress evidence must be filed and served (not heard) within 45 days of arraignment for you to preserve your client’s right to an interlocutory appeal (meaning the client will not have to submit / be found guilty before an appeal may be filed. See Penal Code §1538.5.

Penalties for Other Criminal Offenses Involving Under the Influence Offenses:

Statutory Drunk Driving Presumptions:

If the alcohol level was less than 0.05 percent, it will be presumed that the defendant was not under the influence of alcohol;

If the level was 0.05 percent or more, but less than 0.08 percent, there shall be no presumption either way.

A blood-alcohol level of 0.08 percent or more gives rise to a rebuttable presumption of intoxication.

A blood-alcohol test has a margin of error of 0.005 percent and the test indicates an alcohol content of precisely 0.08 percent, thus it is error to

instruct a jury to presume that the defendant has been under the influence of alcohol.

Implied Consent Laws:

Must be informed that his or her failure to submit to or complete the test will result in a fine and mandatory imprisonment if convicted, and either:
(a) Suspension of the person’s driver’s license for 1-2 years;

Arrestee must be advised that refusal to submit to the test may be used against him or her in a court of law.

Arrestee must be advised that he or she is not entitled to consult with an attorney before deciding whether to take a test, before deciding which test to take, or during administration of the chosen test.

Arrestee must be advised by the officer that, if the person chooses a breath test, the equipment does not retain any breath sample and that no breath specimen will be available to be analyzed later. The arrestee must also be advised that he or she will be given an opportunity to provide a blood or urine sample that will be retained at no cost for subsequent analysis.

Chemical Test Laws:

Blood Test. For purposes of the implied consent law, blood will only be drawn at the request of a peace officer and only by a physician, nurse, licensed laboratory technologist or bio-analyst, specified regulated unlicensed laboratory personnel, or certified paramedic. Blood should be taken as soon as possible after the alleged offense, and enough should be taken to permit duplicate determinations. Whatever blood remains after the test must be retained for one year after the date of collection and must be available to the defendant should he or she request it for additional testing.

Urine Test. To obtain an approved urine sample, the defendant must initially void his or her bladder in the administering officer’s presence. This first sample is not the approved sample and there is no requirement that it be retained. However, it lawfully may be retained and introduced into evidence

at the defendant’s trial. At least 20 minutes after the first sample is given, the defendant must urinate a second time, giving the approved sample.

Breath Test. The breath sample shall be collected only after the subject has been under continuous observation for at least 15 minutes prior to collection of the breath sample, during which time the subject must not have ingested alcohol beverages or other fluids, regurgitated, vomited, eaten, or smoked.

Title 17, §1219.3

Independent Test Law:

The retained samples must be made available to the defendant on request for discovery.

Suspension of Driver’s License for Alcohol Related Offenses Statutes: Administrative Per Se Law: if BAC is above 0.08%, license suspension. Refusal: If refuses to submit to testing, at least one year suspension.

No priors- License suspended for six months. No reinstatement unless defendant pays applicable fees, gives proof of financial responsibility, and gives satisfactory proof of successful completion of licensed program.

One prior within 10 years- License suspended for two years.
Two priors within 10 years- License suspended for three years. Three-plus priors within 10 years- License suspended for four years.

UPDATE:

Vehicle Code §13352 is the go-to statute for all suspensions resulting from a DUI conviction, including all offenses (with priors, misdemeanors and felonies).

*On 2nd offense administrative suspensions, this statute will override. A “wet” reckless or DUI conviction with a prior will both make available a restricted license (under conditions) after 90 days of no driving. This is

important — offenses with priors should be handled more expeditiously to ensure the driver does not suffer any longer suspension than mandated.

Administrative Hearing:

If the person wishes to have the hearing (with the Department of Motor Vehicles) held before the effective date of the suspension order, he or she must request the hearing within 10 days of receiving the notice of the suspension order. The person must be served with a notice of the suspension or revocation order. The suspension or revocation does not become effective until 30 days after being given the notice, or until the end of a stay granted pending administrative hearing on the matter.

Writ of Mandamus:

If the Department sustains the suspension order, the person whose license is suspended or revoked may file a petition for review of the order in the court of competent jurisdiction in the person’s county of residence. The petition must be filed within 30 days of the issuance of notice of the order. If the Writ is filed within 30 days of the issuance of the notice of order in Supreme Court, then the licensee may petition the court for a stay and if granted, the licensee is authorized to drive while the writ proceedings are pending. A Departmental Review goes to the Sacramento Drivers Safety Office and must be filed within 15 days of the date of the suspension order and does not allow for a stay to occur. There is a renewed right to file a Writ if the Department of Motor Vehicle’s Departmental Review comes back negative, although no stay can be granted if not filed within 30 days of the original notice. The statute for filing the Writ after Departmental Review is 94 days from the date of Departmental Review decision.

Recent Pilot Programs Affecting Alameda, Los Angeles, Sacramento

and Tulare

• “Pursuant to section 23700 of the California Vehicle Code, a Pilot Program has been started from 7-1-2010 through 12-31-2015 for the counties of Alameda, Los Angeles, Sacramento and Tulare. For drivers suffering both a violation offense date and conviction date after July 1, 2010 of alcohol only related actions, upon notice of an abstract of judgment from the court clerk, the DMV will require the

installation of an ignition interlock device on any vehicle owned or operated by the convicted person. There are certain exceptions in those four counties but are extremely limited. If in a pilot program county, the installation of the IID and compliance with the state terms (reinstatement terms are determined by the number of prior convictions) allows a driver to have no restrictions on the license except for the IID. In a non-pilot program, upon payment of fees, verification of enrollment in an alcohol education program, the filing of an SR-22 proof of state insurance, and compliance with all reinstatement terms, the restriction to drive authorizes only driving to, from and during the course of work, and to and from the alcohol education program. Full reinstatement of the license requires completion of the appropriate length alcohol education program.

  • Pursuant to SB598, there is a mandatory IID installation requirement for all state multiple offenders. After serving 90 days of the suspension, if there is a conviction for Vehicle Code section 23152 with 1 prior and alcohol only, then after 90 days may apply for restricted CDL, subject to conditions, otherwise a 2 year suspension is mandatory. If a conviction for driving under the influence (no injury or drugs), with 2 priors, the driver can apply for a restriction after 6 months, otherwise a 3 year revocation is required with a habitual traffic offender designation. If an alcohol and drug related DUI without injury with 1 prior, a 2 year revocation is mandatory, with restriction subject to the IID after 1 year of suspension. If there is a conviction for alcohol and drugs without injury and 2 priors, the driver’s license is revoked for 3 years but may apply after 1 year for the IID restriction.”

  • “Operative October 1, 2011, California Penal Code section 17.5 has been substantially modified which for purposes of incarceration on alcohol and drug related charges, will provide new opportunities for what is not being classified as “Community-based Punishment.” The California legislature, in reaffirming its commitment to reduce recidivism among criminal offenders and comply with court mandates to relieve the sever overcrowding in the state penitentiaries. Community-based punishment means correctional sanctions and programming encompassing a range of custodial and noncustodial responses to criminal or noncompliant offender activity. Community- based punishment may be provided by local public safety entities

directly or through community-based public or private correctional

service providers, and include, but are not limited to the following: A. Short term flash incarceration in jail for a period of not more than 10

days

B. Intensive community supervision

C. Home detention with electronic monitoring or GPS monitoring

D. Mandatory community service

E. Restorative justice programs such a mandatory victim restitution and victim-offender reconciliation

F. Work, training, or education in a furlough program pursuant to Section 1208

G. Work, in lieu of confinement, in a work release program pursuant to Section 4024.2

H. Day reporting

I. Mandatory residential or nonresidential substance abuse treatment programs

J. Mandatory random drug testing K. Mother-infant care programs

L. Community-based residential programs offering structure, supervision, drug treatment, alcohol treatment, literacy programming,
employment counseling, mental health treatment, or any combination of these and other interventions

IMPORTANT WEBSITES

List of California State Jails: ” ” ” “

www.cdcr.ca.gov

California State Bar Association ” “

www.calbar.ca.gov

DUI Schools in California (Every County):” “

http://www.adp.cahwnet.gov/Criminal_Justice/DUI/programs.shtml

DMV SR-22 & Ignition Interlock Devices – Guidelines (Proof of Financial Responsibility mandated by statute)http://dmv.ca.gov/pubs/brochures/fast_facts/ffvr18.htm

New DUI Reporting Requirements

http://dmv.ca.gov/pubs/dui/reportability.htm

 

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