Today I would like to discuss how the Zero Tolerance Law in California affects DUI probationers.  If you are on probation in California for a DUI (Ca Vehicle Code 23152, 23153) you should have been advised at the time of your plea that you are not to drive with any measurable alcohol in your system.  I often have new clients report to me that they were not aware of the zero tolerance law.  However, that is not a defense to the action the DMV will take against your license or to a probation violation in court.  Your attorney should have informed you about the zero tolerance law, or if you were present in court at the time of your plea and sentencing, the judge should have informed you on the record not to drink and drive.

The Law

In January of 2009 the legislature passed AB 1165 which authorizes the DMV to suspend your driver’s license for one year if you are on DUI probation and drive with any measurable alcohol in your system.  You are not eligible for a restricted license during the one year suspension but the suspension period will run concurrent to any other suspensions you may have, for example, for a subsequent DUI.

In the first year the DMV was authorized to suspend you for 1 year for drinking and driving on DUI probation some probationers slipped through the cracks of the new law and avoided the one year hard suspension.  However, the DMV is now routinely enforcing the zero tolerance law and will suspend you for one year.  This evident by the fact that in 2009, 5,976 probation violation actions were initiated while in 2010, 8,202 probation violations were initiated.

If caught drinking and driving while on probation the court that sentenced you can also sentence you to additional jail time for the violation of probation, even if you were under a .08 BAC and new charges were not filed.

 What to do if Caught Drinking and Driving while on DUI Probation

Separate and apart from any action the DMV takes against your license for drinking and driving, the court that placed you on probation can violate your probation and seek additional jail time, up to 6 months on a first time DUI and up to a year if you are on probation for a second time DUI, plus additional time if new DUI charges are filed against you.  An experienced attorney may be able to negotiate a jail alternative for you.

In regards to the DMV, you have 10 days from receipt of the Suspension/Revocation Order (DS 367/367M) to request a hearing to show that the APS suspension/revocation is not justified.  The officer usually serves this pink, “Temporary License” to you upon your release from custody.

You or an attorney acting on your behalf can request the APS Zero Tolerance suspension/revocation to be stayed (delayed) if:

  1. The hearing is requested within 10 days from the issue date of the order (the date you were caught drinking and driving), and
  2. DMV cannot provide a hearing appointment before the effective date of the suspension/revocation.  They usually cannot and will set the hearing past the 30 day date, which means you get to continue to drive.

Before the hearing, and upon request, you may see and/or obtain copies of DMV’s evidence or your attorney will request it on your behalf and prepare a defense for you.

The Hearing

You may represent yourself, or at your own expense an attorney may represent you at the hearing. You may present oral testimony and other evidence. Your testimony will be taken under oath or affirmation and the hearing will be recorded. You or your attorney may subpoena witnesses on your behalf.  The DMV does not always subpoena the cops so you will have to do that if it is necessary to your defense.

The issues at the hearing are:

If you took a PAS or other chemical test:

1.   Did the peace officer have reasonable cause to believe you were driving a motor vehicle in while on probation in violation of CVC §23154?

2.   Were you lawfully detained?

3.   Were you driving a motor vehicle with a BAC level of 0.01% or greater, as measured by a PAS device or other chemical test?

If you refused, or failed to complete, a PAS test or other chemical test:

1.   Did the peace officer have reasonable cause to believe you were driving a motor vehicle in while on probation in violation of CVC §23154?

2.   Were you lawfully detained?

3.   Were you told that your driving privilege would be suspended or revoked for two or three years if you were on probation, failed to complete or refused to submit to a PAS test, or other chemical test?

4.  Did you refuse to submit to, or fail to complete, a PAS or other chemical test after being requested to do so by a peace officer?

After the hearing decision, if the action is upheld, you or your attorney may submit a written request for a department review within 15 days of the effective date of the decision. The fee for a department review is $120.

Apart from the department review process, you or your attorney may request a court review within 30 days following the issuance of the notice of the hearing decision.

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