DMV Hearing for Violation of DUI Probation 2017-05-07T05:03:59+00:00

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What is DUI Probation?

With very rare exceptions, any driver who is convicted in a criminal court for driving under the influence will be placed on “probation” by the court. The scope and term of DUI probation varies depending upon the facts in the individual case, but generally a convicted driver will be put on DUI probation for 1, 3, or 5 years.

Those drivers convicted of misdemeanor violations of California Vehicle Code (CVC) 23152 or 23153; or who have their charges reduced to “wet reckless” under CVC section 23103 are normally placed on Summary Probation.

Those drivers convicted of felony violations of CVC section 23153; or misdemeanor convictions is more aggressive counties, are normally placed on Formal Probation.

Summary Probation

Because the vast number of drivers convicted of DUI have violated misdemeanor sections of the Vehicle Code, they are placed on Summary Probation. Summary Probation is basically a period of time during which a driver must obey specific orders of the court. Summary Probation is the lowest form of probation and does not require that the driver report to a probation officer or the probation department. As stated above, the term of Summary Probation normally is ordered for 1 year, 3 years or 5 years depending on a variety of factors.   The specific tasks or “standards” ordered by the court may vary as well. The most common “standards” assigned to a misdemeanor probationer are:

  • Violate no law…… (Being cited for a moving violation is not generally a problem).
  • Pay fines and penalties within a specified period of time.
  • Attend and complete DUI schools within a specified period of time.
  • Surrender and complete jail sentences as ordered by the court.
  • Complete community service, MADD panels or other assignments as ordered by the court.
  • Only operate motor vehicles when properly licensed and properly insured.
  • Do not operate a motor vehicle with any “measurable” amount of alcohol in the blood.
  • Submit to a Preliminary Alcohol Screening Test at the request of a Peace Officer.
  • Only operate motor vehicles equipped with Ignition Interlock Devices, if ordered by the court.

If a driver successfully completes his probationary period without violating any of the terms of probation, he will “discharge” from probation automatically at the end of the specified term.

Formal Probation

Most often, Formal Probation is reserved for those drivers who have been convicted of Felony Counts of DUI or Manslaughter. There are a few jurisdictions in California where even a misdemeanor conviction of DUI can result in Formal Probation. Formal Probation is much more invasive than the lesser “Summary Probation” discussed above. The most common “standards” assigned to a Formal Probationer are:

  • Violate no law.
  • Report to a Probation Officer in-person, telephonically, or electronically as ordered by the Probation Department.
  • Allow the search of his home, car, and person at the order of a probation officer.
  • Submit to unannounced blood, breath, or urine testing at the order of a probation officer.
  • Pay fines and penalties within a specified period of time.
  • Attend and complete DUI schools within a specified period of time.
  • Surrender and complete jail sentences as ordered by the court.
  • Complete community service, MADD panels or other assignments as ordered by the court.
  • Only operate motor vehicles when properly licensed and properly insured.
  • Do not operate a motor vehicle with any “measurable” amount of alcohol in the blood.

Known as “zero-tolerance,” this is a frequent cause for drivers violating DUI probation.

  • Submit to a Preliminary Alcohol Screening Test at the request of a Peace Officer.
  • Only operate motor vehicles equipped with Ignition Interlock Devices, if ordered by the court.

If a driver successfully completes his probationary period without violating any of the terms of probation, he becomes eligible for “discharge” from probation. This may require a “clearance” from the probation department, and in some instances may require the authorization by a judge.

 

If a peace officer encounters a driver who is currently on DUI probation, California law permits that officer to determine if the driver is operating a motor vehicle with any measurable amount of alcohol in their blood. Known as “zero tolerance,” California law requires that a driver who is currently on DUI probation blow into Preliminary Alcohol Screening (PAS) device at the request of a peace officer. Every day in this state, law enforcement officers come into contact with drivers for reasons ranging from speeding violations to traffic collisions. If during the course of a perfectly innocent contact, a law enforcement officer discovers that a driver is on DUI probation, he or she will likely ask the driver to blow into a PAS device. If the driver declines to blow into the PAS device, it is a violation of probation.

California Vehicle Code section 23154(c) (1) provides…

A person who is on probation for 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…..” “The person shall be told that his or her failure to complete a preliminary alcohol screening 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.

On the other hand, if the driver complies and does blow into the breath device that registers a reading of .01% or greater, he or she has automatically violated the “zero-tolerance” standard of DUI probation.

California Vehicle Code section 23154(a) provides…

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.

Any driver who is discovered driving in violation of DUI probation is subject to the complete suspension or revocation of his or her driving privilege, even if they drove with a nearly imperceptible amount of alcohol in their body.

Consider the example of a CDA Client who was drinking alcohol with friends and family during the evening. The Client ended his evening and went to bed. He enjoyed a full night of sleep, but when he headed for work the next morning, there was still a residual amount of alcohol in his blood stream. Hurrying to work, he was pulled over for a speed violation and it was discovered that he was on DUI probation. The law enforcement officer lawfully asked the driver to blow into a PAS device, and when he did he registered a 0.01% BAC. Even though he had not consumed alcohol for hours and even though he was not in the least bit impaired, he violated the law and the DMV sought to suspend or revoke his driver license.

Another “real life” example is the CDA client who was at home on a Saturday afternoon. He had just completed several hours of yard work and sat down to enjoy a cold beer. He was safely at home with no intention of drivng when he received a telephone call from a friend two streets away. The friend told our client that his dog had gotten out of the yard and was wandering the street. After consuming one beer, our client jumped into his truck and located his dog a few blocks away. Our client activated his emergency flashers and jumped out of his truck to retrieve the dog and a police officer pulled up behind him to investigate why he was stopped in the street. Here again, when the officer discovered that our client was on DUI probation, and even though our client had consumed only one beer in the safety of his home, he was in violation of DUI probation when he blew a 0.01% on a PAS device.

These are real world scenarios where a perfectly innocent set of facts turns into the potential loss of one’s driver license. The DMV does not care about the reason a person drives with alcohol in their system. The DMV is not bound by the “spirit” of the law. In other words, the DMV is not interested in what the legislature intended when writing the laws regarding DUI probation. They are only interested in the “letter of the law,” which means it is illegal to drive with any measureable amount of alcohol in your blood while on DUI probation…….Period!

If the DMV believes you have violated the terms of DUI Probation by driving with a measurable amount of alcohol in your body, they will seek to suspend or revoke your driving privilege for a period ranging from 1 to 3 years. The penalties for violating DUI Probation are severe and do not generally allow a person to even receive a “restricted” driver license.

If you have been accused of violating DUI probation by driving with a measurable amount of alcohol in your blood, make no mistake, the DMV intends to take you off the road. The only way to protect your driving privilege is to schedule, conduct and win an Administrative Hearing before the California Department of Motor Vehicles (DMV).   Known as a “Probation Violation Hearing” or a “Zero-Tolerance Hearing” the deck is stacked against you. The three issues a DMV Hearing Officer must establish to justify suspending or revoking your driver license are:

  • Did a police officer have reasonable cause to contact you and determine you had been driving a motor vehicle?
  • Were you lawfully detained?
  • Were you driving a motor vehicle with a blood-alcohol concentration (BAC) of 0.01% or greater as measured by a Preliminary Alcohol Screening test or other chemical test?

These are terribly low standards of proof, however, that does not mean that you can’t win your hearing. As simple as it may seem for the DMV to suspend or revoke a probationer’s driving privilege, there are still standards of conduct and proof that must be established to justify the suspension action.

Even more than most Administrative Hearings, the secret to winning a “Zero-Tolerance” hearing at the DMV is to conduct a thorough investigation of the facts. The probable cause for contact, the probable cause for detention and the accuracy of the PAS or chemical tests must come under scrutiny to discover any and all errors.   The DMV Defense Experts at CDA have been conducting this type of administrative hearing for many years, and while they are tough, they can be won. Also, a driver cannot make the suspension or revocation of their driving privilege worse by trying to defend themselves, all you can potentially do is make the situation better.

Call Us Today. Let Us Go to Work Fighting Your Violation of DUI Probation.

Entering a Probation Violation Hearing, the DMV hearing officer really has all of the control. If they believe you were lawfully stopped and that you were driving with any alcohol in your blood, the DMV will feel completely justified in the suspension or revocation of your driving privilege. Little or no thought is given to the reason you may have been driving and absolutely no consideration is given to the impact that losing your driving privilege will have on your life. The DMV simply does not care.

The DMV Defense Experts at California Drivers Advocates do care. We understand how an otherwise perfectly innocent set of facts can end in a license suspension. We do understand and care that the complete suspension or revocation of your driving privilege can cost your job, your home, and your future.

Because the laws surrounding DUI Probation are so stacked against the driver, only the best DMV Defense stands any chance of victory. The DMV Defense Experts from California Drivers Advocates have the training, experience, and desire to win even the toughest administrative hearings. If you simply cannot afford the loss of your driver license, you simply must retain the best in DMV Defense. Call CDA today. We’re ready to help.

 

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