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New California DUI Sentencing Laws

California passed several new DUI sentencing laws that began affecting those convicted of drunk-driving on or after September 20, 2005.  The new legislation imposed new rules that regulate sentencing of those convicted of California driving under the influence.  This new legislation affects everything from driver’s license suspension to conditions on probation.

Some of the changes now include restricted licenses for first-time DUI offenders and ignition interlock devices that report whether or not you have alcohol on your breath.  Another new device that can now be imposed by judges because of the new legislation is the SCRAM device.   SCRAM is a GPS device and alcohol detector that DUI offenders must wear around their ankles that reports not only their location, but also their blood-alcohol content (BAC) level by measuring their sweat.  Previously, courts used a benchmark of .20% BAC in order to determine how long a  California DUI defendant would need to attend an alcohol-education program, the new distinction now is .15% BAC.  SCRAM DUI  

Another new change affects California Drunk Driving offenders who decline probation.  Under the new legislation, first-time DUI offenders who decline probation receive a mandatory jail sentence of 96 hours, of which 48 hours must be served continuously, with the remaining 48 hours to be served within a six-month period.  While there isn’t a mandatory jail sentence requirement for  California Drunk Drivers who accept probation, a judge can still choose to send them to jail anywhere from 48 hours on up to 6 months (as an additional condition of probation).   Second-time California DUI offenders (within 10 years) who accept probation face 10 days to 1 year in jail, but second-time DUI offenders who decline probation face a minimum jail sentence of 90 days and a maximum of one year.  Note that CA DUI offenders who are sentenced to one year may be able to serve their sentences in a work-release program or other alternative sentencing program. 

Most Notable Change in California DUI Law

The most prominent change made with the new legislation is that California DUI courts no longer have the authority to suspend or restrict a driver’s license of a person convicted of driving under the influence in California.  Under the old law, courts could impose license suspension, while the  DMV would actually suspend the individual’s license.  With the new law, only the DMV can suspend driving privileges either through the DMV Administrative per se hearing or because of a DUI criminal conviction.

Clearly, this new legislation has presented a number of new challenges for California DUI attorneys to overcome.  Thus, it is wise for all California DUI Defense lawyers to review carefully all of California’s new DUI/DWI sentencing laws so that they can help clients successfully navigate through both the DMV and court processes.  

2009 California DUI Probation Changes

 

As of January 1, 2009, a new law went in to affect, Vehicle Code Section 23154(a), Driving Under the Influence of Alcohol While on Probation for Prior DUI.  The statute reads:

 

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 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 to three years as proved in Section 13353.1.

 

So what does this mean?  Prior to this new law, if you were stopped while on probation for a California DUI and an officer had you submit to a  preliminary alcohol screening (PAS) test and your results were minimal, 0.01 percent to 0.03 percent, most likely the Officer would let you go.  Remember, as a part of your probation, which lasts three to five years, you are not allowed to drive with a measurable amount of alcohol in your system.  So while technically, the Officer could arrest you for violating your probation, practically the Officer would let you go.

As of January 1, 2009, this will no longer happen.  If you blow a 0.01 percent or higher, the Officer will arrest you for violation of Vehicle Code Section 23154.  Not only will you be facing a new misdemeanor charge, you will also have to go back to Court on your original DUI for violation of probation. 

 

Beware, the title of this new statute is misleading, Driving Under the Influence of Alcohol While on Probation for Prior DUI.  A more appropriate title would be, Driving With A Measurable Amount of Alcohol While on Probation for Prior DUI because the State does NOT have to prove that you were under the influence of alcohol.  The State must simply prove there was 0.01 percent or more of alcohol in your system at the time of driving.

 

If you thought it could not get any worse, keep reading because the California DMV is also going to take action.  Violations of Vehicle Code Section 23154 will result in a one year suspension of your driving privilege with no option for a restricted license.  Refusal or failure to complete the PAS or chemical test will result in a two year revocation of your driving privilege.  Two or more prior DUI convictions within a period of ten years, you are looking at a three year revocation.

 

If you have been charged with drunk driving or driving with alcohol while on probation for DUI in California, contact a  California DUI Defense Attorney today to learn about possible defenses.  Our skilled DUI attorneys will fiercely represent you in Court and at the DMV hearing.

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