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DMV & Court issues & problems with new .01% BAC probation law

At DMV, for those who test at .01 or higher:

Although the Legislature amended CVC 13353.2(a), operative January 1, 2009, to include CVC § 23154 violators, it neglected to amend CVC 13557(b)(2)( A) and (B) to include CVC § 23154.

As such, unless and until the Legislature amends this statute or the courts legislate from the bench, .01% or higher BAC actions in CVC § 23154 cases should be set aside in all contested cases DMV if the person is over 21 years of age.

For those probationers who refuse the roadside testing:

The Legislature neglected to amend CVC § 13353.1(d)(1) to include CVC § 23154 violations. Hence, in order to uphold a one, two, or three year suspension based on a refusal to submit to testing under CVC § 23154, the DMV must prove the probationer violated CVC 23136 (cop had reasonable cause to believe person was under 21 and driving with a .01 or higher).

Again, unless the Legislature amends this statute or the courts legislate from the bench, contested refusal actions in CVC § 23154 cases should be set aside in all DMV contested cases where the person is over 21 years of age. After all, CVC 13558(c)(1) specifically states that the only issues for APS refusal hearings are set forth in CVC 13557(b)(1), which requires proof that the cop had reasonable cause to believe there was a violation of either 23136, 23140, 23152, or 23153 (23154 is not listed!).

If the Legislature had properly drafted the laws, the elements for a violation of 23154 would be:

1. the person was, at the time of driving, on probation for a violation of Section 23152 or 23153,
2. the person had consumed an alcoholic beverage,
3. the person was driving a vehicle with a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test or other chemical test.

23154. (a) It is unlawful for a person who is on probation for a violation of 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.
__._,_.___

13557(b)(2)::
(2) If the department determines in the review of a determination made under Section 13353.2, by the preponderance of the evidence, all of the following facts, the department shall sustain the order of suspension or revocation, ... :
(A) That the peace officer had reasonable cause to believe that the person had been driving a motor vehicle in violation of Section 23136, 23140, 23152, or 23153.
(B) That the person was placed under arrest or, if the alleged violation was of Section 23136, that the person was lawfully detained.
(C) That the person was driving a motor vehicle under any of the following circumstances: (i) When the person had 0.08 percent or more, by weight, of
alcohol in his or her blood. (ii) When the person was under the age of 21 years and had 0.05 percent or more, by weight, of alcohol in his or her blood. (iii) When the person was under 21 years of age and had a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test, or other chemical test.
If the department determines that any of those facts were not proven by the preponderance of the evidence, the department shall rescind the order of suspension or revocation and, provided that the person is otherwise eligible, return or reissue the person's driver's license pursuant to
Section 13551. For persons under 21 years of age, the determination of the department pursuant to this paragraph is final unless a hearing is requested within 10 days of the determination, which hearing shall be conducted according to the provisions of Section 13558. For persons over 21 years of age, the determination of the department upon administrative review is final unless a hearing is requested pursuant to Section 13558.


In court, an alleged Vehicle Code section 23154 charge is an infraction so one does not have a right to an attorney; therefore no right to a Public Defender
unless the Prosecutor charges the probation violation which raises other issues regarding the timing of the PV hearing and the infraction trial.

There are also two different standards of proof.

Even if convicted, no points are assessed on one's DMV record.

This new law ignores the main point: NO ROADSIDE/PRELIMINARY BREATH TEST IS "ALCOHOL SPECIFIC."

Simply show at the hearing other junk (soy sauce, white bread, etc.) falsely tests positive as "alcohol."