How Do California DUI Laws Treat Commercial Drivers?

DUI Laws in general tend to slam a person charged and convicted with drunk driving, however, when you are a commercial driver it gets even more evil. In addition to any other penalties, if a driver of a commercial motor vehicle violates Vehicle Code 23152(a), (b), (c), or (d) or section 23153(a), (b) or (d) while driving any vehicle, and the court notifies the DMV of this fact, the DMV must disqualify that driver from driving a commercial motor vehicle for one year. (VC 15300(a)(1)–(4), 15320). If the driver is convicted of a second DUI violation, the California DMV will impose a lifetime ban on that driver’s right to drive a commercial motor vehicle.

What about when a refusal is alleged as part of the DUI? In refusal cases, in addition to any other penalties, if a driver of a commercial motor vehicle willfully refuses to submit to, or fails to complete, a chemical test to determine his or her blood-alcohol content in connection to the driving of any vehicle, the DMV must disqualify that driver from driving a commercial motor vehicle for one year. A driver’s second refusal will result in a lifetime ban on his or her right to drive a commercial motor vehicle.

California DUI Impoundment Laws

A little known punishment relating to a DUI is the impoundment or actual sale of a defendant's car upon conviction of a drunk driving offense.  Though the California DUI Laws are some of the most stringent in the nation, the penalty is not often imposed, at least in the larger counties, largely due to to the logistical issues involved. Under the California Vehicle Code, the court may order that a vehicle that was used in the commission of an offense of DUI, and was registered to the convicted defendant, be impounded at the defendant’s expense for one to 30 days if the defendant has not had a prior conviction within the last five years. If the defendant has had a prior conviction within the last five years, the court must order impoundment of the vehicle at the defendant’s expense for one to 30 days, except in an unusual case. If the defendant has had two or more prior convictions within the last five years, the court must order impoundment of the vehicle at the defendant’s expense for one to 90 days.

If the accused is convicted of DUI and has two or more separate convictions within seven years, or is convicted of DUI with injury and has any separate convictions within the same period, the court may declare the vehicle a nuisance and order it to be sold, as long as the defendant is the registered owner under CA Vehicle Code §23596.  However, according to one Hermosa Beach Dui Attorney, the court may not order impoundment or sale if the defendant’s spouse has a community property interest in the vehicle, the vehicle requires only a class C or a class M license, and the vehicle is the sole vehicle available to the defendant’s family. (Courtesy, CA Jud. Bch Guide)

Can a Cop Arrest a Person For DUI When They Were Not Driving?

It may seem like common sense to most folks, the police cannot arrest someone for a misdemeanor unless the offense takes place in their presence.  Well in California the rule is not so clear.  As a general rule, a peace officer may make a lawful arrest for DUI without a warrant for a misdemeanor offense only if he or she has probable cause to believe that such an offense is being committed in his or her presence.  With respect to a DUI offense, the “in the presence” requirement necessitates that the officer see the vehicle move. According to one DUI Attorney in Torrance CA, the Court found exactly that to be the case based on the fact that the offense did not occur in officer’s presence when vehicle, although running, was not moved. Subsequent to that Court's decision the law was changed to allow for a plethora of exceptions that in effect swallowed the rule, these exceptions will be discussed in a later post.  Nonetheless, when one officer has reasonable suspicion, based on personal observation, that a motorist may be driving while intoxicated, the arrest may be made by another officer who did not see the motorist commit the alleged DUI, but who is summoned by the first officer. Because both officers participate in the arrest, the arrest complies with the CA Penal Code.  The bottom line, at this point in CA jurisprudence, is that if the cop strolls upon you and sees you are drunk in a motor vehicle you are likely to be arrested.  Whether you can find a way out depends largely upon finding an exception to the rule.

Grand Theft Case Reversed on Appeal

Not many cases are reversed on appeal, this case is one exception.  Though not a DUI case, Mojave DUI Lawyer, Bruce Blythe felt it was important enough to publish given the recurring nature and frequency of this type of case in California. The defendant in the case stole the victim's purse, which had $700 cash in it. At the time, California law said that it was grand theft if the amount stolen was more than $400. The defendant was convicted and he filed a notice of appeal. While the appeal was pending, the grand theft laws in CA (PC 487(a)) was amended, increasing the amount required for a grand theft to $950. Does this defendant get the benefit of the change?  The Court said yes. Indeed, statutory changes favoring a defendant apply so long as the defendant's conviction isn't final.  People v. Wade; C/A 1st, Div. 5.

Can the Police Stop a Car With a Temporary Registration Tag?

Here is the scenario: Police run a DMV check on a car they are following and learn that it is two years out of registration. But the car has a temporary permit affixed to the rear window. Can they make a traffic stop?
According to the Second District Court of Appeal, the answer is “yes.” Regardless of whether the vehicle bears a temporary permit, a DMV check showing expired registration provides sufficient grounds to stop the car and detain its occupants.  In the words of the appeals court:  “An innocent explanation for a possible registration violation,” The court concluded the fact the car had a tem sticker “does not preclude an officer from effecting a stop to investigate the ambiguity.”  According to the court, “The question is not whether defendant's vehicle was in compliance with the law, but whether [the officers] had an articulable suspicion it was not. . . . The DMV record showing expired registration provided the required articulable suspicion there was something amiss with the registration and justified the vehicle stop for Fourth Amendment purposes.”
Attempting to reconcile the recent number of cases on this topic, the court distilled the following rules: 1. “In the absence of other incriminating or ambiguous evidence,” a vehicle displaying a valid temporary permit and no license plates may not be stopped; 2. “If the officer does not see the temporary permit and the vehicle has no license plates, it is reasonable for the officer to make a traffic stop;” 3. “A vehicle with expired license tabs, but displaying a temporary permit, may not be stopped if the officer has additional information that there is an ongoing process to cure the lapse in registration;” 4.  “A vehicle displaying a valid temporary permit may be stopped where there is some objective indicia that something may be amiss with the registration or permit, such as a missing front license plate; “ 5. “a vehicle displaying no license plates and no temporary permit visible from the rear may be stopped for investigation;” and, 6. A vehicle that the DMV says is not registered but nevertheless displays a temporary permit may be stopped to “investigate the ambiguity” concerning its registration.
It is certainly interesting to compare the Court's legal analysis with the reason the officer actually gave for the stop. He thought a temporary permit authorized driving to and from a smog check only. The court noted that “We do not decide this case based on Officer Moon's subjective belief the temporary permit only allowed the vehicle on the road for the limited purpose of obtaining a smog check—a belief that apparently has no basis in law.”

California Driving on a Suspended License FAQ

There are a substantial number of ways the California Department of Motor Vehicles can suspend or revoke your driver's license. This means either the DMV or the court has decided that you are NOT allowed to operate a motor vehicle until the suspension or revocation is lifted and your license is reinstated.  Many drivers are told, either by a police officer or a letter in the mail, that their license has been suspended. WHY WOULD YOUR LICENSE BE SUSPENDED?

Here are the main reasons your California driver’s license could be suspended:
1. No Insurance. If you're not insured and get in an accident, your driver's license will be suspended for four years. After one year, it may be returned if you provide proof of insurance to the DMV, and maintain it for the next three years.
2. Failure to Report an accident.
3. Driving under the influence (DWI) conviction. California has some of the toughest DUI laws in the country, and your license will be suspended for six months upon your first conviction. You may petition for a restricted license in some cases (such as when you have a critical need such as work or school). A second and third drunk driving may cause you to lose you your license for two to four years with no ability to drive at all except with an ignition interlock installed on your vehicle.
4. Underage drinking (Zero Tolerance). You'll lose your driver's license for one year or until you turn 18, whichever is later.
5. Failure or refusal of a drug or alcohol test. California's implied consent laws mean that if you refuse a blood, breath, or urine test to avoid getting a drunk driving, your license will be suspended or revoked even if you're innocent of the underlying DUI.
6. Excessive points on driving record. If you have too many points, the California DMV will put you on driving probation for one year, including a license suspension for six months, or revoke your driver's license altogether.  There are ways to fight the points suspension with a hearing requested within 14 days of the notice.
7. Vandalism. Your driver's license will be suspended for one year. If you're too young to drive, your right to apply for a driver's license will be delayed by one year.
8. Failure to appear in court for traffic ticket. This is known as an FTA hold or suspension. If you neither show up nor pay the fine on time, the court will report your failure to appear to the California DMV, and your license may be suspended pending your handling of the ticket.
9. Failure to pay Child Support.  Unfortunately, the only way to get this type of suspension removed is get current on your support payments.

HOW CAN I GET MY LICENSE BACK?
The steps you take to get your license back depend on the reason(s) it was suspended. The following are common reasons and examples of what you might need to do:
If you were convicted of drinking under the influence or drunk driving, DWI:
1. Complete a Mandatory Suspension Period: On the first conviction the court will suspend your driving privilege for six months and require you to complete a DUI program before you can be reinstated.If the DUI occurred in Los Angeles you may be required to have an ignition interlock installed on all vehicles you own or are registered to your address.  If your Blood Alcohol Level (BAC) was .15% or higher and you already had a record of violations for other reasons OR you refused to submit to a chemical test, the court may order you to complete a nine-month or longer program. If your BAC was .20% or higher and the court refers you to an enhanced DUI treatment program, your license will be suspended for 10 months.
2. Pay a Re issuance Fee: Your driver license will be returned to you at the end of the suspension after you pay a $125.00 reissue fee to the DMV and file a Proof of Financial Responsibility (SR-22). The reissue fee is $100.00 if you were under age 21 at the time of violation and were suspended under the Zero Tolerance Law.
3. DUI Treatment Program: Show Proof of enrollment in DUI Treatment Program and a Certificate of Completion (DL-101) once completed.

If you had a physical/mental condition or disorder:
Provide a satisfactory Driver Medical Evaluation (DS-326) and/or other medical information indicating the condition no longer affects the ability to operate an automobile safely.
If you had no car insurance and were involved in an accident:
Complete the mandatory 1-year suspension and pay the re issuance fee of $125.00. File a Proof of Financial Responsibility (SR-22).
If you failed to pay a traffic citation or failed to appear in court for traffic ticket:
1. Pay your citations or appear in court. You will be given an FTP/FTA abstract that says you fulfilled this requirement from the court. 2. Pay the standard re issuance fee of $55.00 (in rare cases it be could as high as $275.00) to the DMV.
WHAT IS AN SR-22?
If your license was suspended for a DUI, getting into a car accident while driving without car insurance, or other similar reasons, you may be required by state law to purchase additional insurance coverage. SR-22 is a form that the insurance company then files with the DMV after you purchase the additional coverage. The insurance company must be licensed by the California Department of Insurance. If you are unable to obtain additional insurance coverage through a licensed insurance company, then check with your state's insurance regulator (California Department of Insurance 1-800-927-HELP) to assist you.  In cases such as DUI and points, a California Attorney can help you to resolve your license issues.

HOW DO I GET A RESTRICTED LICENSE?
Depending on the reason(s) for your suspension, you may be able to obtain a restricted license, which will allow you to drive in to limited places while your license is suspended. For drunk driving, if you have a non-commercial driver license and you show proof of enrollment in a DUI treatment program, you may be able to get a restricted license after a mandatory 30-day suspension to drive to and from the DUI treatment program and/or work. If you qualify for a restricted license, you still need to meet the other requirements and pay a $125.00 reissue fee or $100.00 if you were under age 21 at the time of violation. You can apply for a restricted license in person at your local DMV office.
You can contact the California Department of Motor Vehicles at (800) 777-0133 during normal business hours for the location of the your local DMV and for more information about your particular situation. Please have your driver’s license number and any other information sent to you from the DMV available.
(Courtesy California Courts)

Can You Get A DUI on Private Property?

Many folks arrested for drunk driving are found off the highway, often on some private lot or property.  The question arises whether the law requires that the driver be on "the highway" or public property in order to be in violation of VC 23152 DUI.  According to Matthew Ruff, a DUI Attorney in Torrance the Courts settled this issue finding that a private property arrest is perfectly OK.  The Court said: There is no question that the drunk driver is an "extremely dangerous" person who obviously poses more danger when he or she drives on public streets and highways and encounters the general public in greater numbers. However, regardless of any subjective legislative intent, the objective intent of the Legislature as derived from the language of the pertinent Vehicle Code provisions is that a person who is driving while under the influence of alcohol and/or drugs is always a threat and the purpose of DUI statutes is to prohibit those "extremely dangerous" persons from driving anywhere in California.