One Sip of Beer Lose License for a Year

DMV Ramifications of Driving with a 0.01% or Greater While on DUI Probation

 Dana M. Grimes, Esq.

We now need to advise our clients that, upon conviction of a DUI, they must take the prohibition of driving with any amount of alcohol in their system very seriously.  It is no longer simply a condition of court probation to abstain from alcohol while driving; it is a new and separate offense that can have severe Department of Motor Vehicles ("DMV") consequences.

In January of 2009, new legislation was enacted which provides for a person's driving privilege to be suspended or revoked if the DMV finds that a person who is on probation for a DUI has been operating a motor vehicle with a blood alcohol concentration ("BAC") of 0.01% or greater.  (See Veh. Code § 23154.)  The length of court probation, which generally ranges from three (3) to five (5) years, is now of increasing importance for DMV purposes.

According to Vehicle Code § 13353.2(a)(4), the DMV can now immediately suspend the privilege of a person who was driving a motor vehicle when BOTH of the following apply (as in a non-probation violation DUI enforcement stop, a notice of the 30-day order of suspension must be served on the person by a peace officer, and a call must be placed to the DMV within 10 days to request a hearing):

(A)  The person was on probation for a violation of Section 23152 or 23153; and

(B)  The person had 0.01% or more, by weight, of alcohol in his or her blood as measured by a preliminary alcohol screening (PAS) test or other chemical test.

If the DMV determines that a person has been "driving with an excessive concentration of alcohol pursuant to Section 13353.2 on a separate occasion, [and] that offense or occasion occurred within 10 years of the occasion in question, the person's privilege to operate a motor vehicle shall be suspended for one year."  (Veh. Code § 13353.3(b)(2).)  This means that, for DMV purposes, having a 0.01% BAC while on DUI probation is now treated just as harshly as having a 0.08% BAC while on DUI probation (this applies to persons 21-years of age and older.  The law [at least for as long as we have been around] has always been that persons under 21-years of age would have their driving privileges suspended if they were found to be driving with a BAC of 0.01% or greater. [Veh. Code § 13353.2(a)(2).]  Persons with commerical driver licenses were also treated differently [i.e., BAC of only 0.04% or greater was required to have driving privileges suspended.] [Veh. Code § 13353.2(a)(3).])

You should also be aware that "[i]f a person's privilege to operate a motor vehicle is suspended pursuant to Section 13353.2 and the person is convicted of a violation of Section 23152 or 23153 . . . both the suspension under Section 13353.2 and the suspension or revocation under Section 13352 shall be imposed, except that the periods of suspension or revocation shall run concurrently, and the total period of suspension or revocation shall not exceed the longer of the two suspension or revocation periods."  (Veh. Code § 13353(c).)

One of the upsetting aspects of this new legislation is that the DMV hearing officer can rely on the PAS test to measure the blood alcohol level.  If a DUI probationer refuses to submit to a PAS test, that person's privilege to drive a motor vehicle will be suspended or revoked for one (1) to three (3) years.  (Veh. Code § 13353.1.) Note that Vehicle Code § 23140(3) mandates that "[t]he person shall be told that his or her failure to submit to, or the failure to complete, a PAS test or other chemical test as requested will result in the suspension . . ."  Further, the DMV hearing officer must find the PAS or chemical test incidental to a lawful detention and administered  at the direction of a peace officer having reasonable cause to believe the DUI probationer is driving a motor vehicle with a BAC of 0.01% or greater.  (Veh. Code § 23154(c)(2).)

Lest you think that all is lost, there is some hope.  Subdivision (e) of Vehicle Code § 13353.3 gives us a remedy with the DMV if no criminal charges are ever filed or if criminal charges are subsequently dismissed.  Specifically, the statute states, in pertinent part, ". . . if criminal charges under Section 23140, 23152, or 23153 are not filed by the district attorney because of a lack of evidence, or if those charges are filed but are subsequently dismissed by the court because of an insufficiency of evidence, the person has a renewed right to request an administrative hearing before the department.  The request for a hearing shall be made within one year from the date of the arrest."  (Veh. Code § 13353.2(e).)

In short, be sure to advise your clients that, during their DUI probation period, a sip of beer could result in a license suspension for a year.

Other Grounds For License Suspension

There are numerous other criminal statutes which will cause the suspension of the defendant's driver's license, and many of these statutes have no relation to driving.   For example, a conviction of Penal Code § 594(a), vandalism, results in a two year license loss.  For defendants under the age of 21, the list of statutes causing loss of the driver's license is much longer.   It includes Business and Professions Code § 25662(a) (minor in possession of alcohol) and Business and Professions Code § 25661 (false ID).  Those charges can be filed as misdemeanors or infractions, but either way they result in a one year suspension of the driver's license.   Any conviction of a defendant under 21 for any type of possession of drugs or drug paraphernalia also results in a one year license suspension

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