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:
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.
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.
(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 DUI and an officer had you submit to a preliminary alcohol screening (PAS) test and your results were minimal, 0.01% to 0.03%, most likely the Officer would let you go. Remember, as a condition 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% 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 simple prove there was 0.01% 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 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 the Parker Law Center today to learn about possible defenses. Our skilled legal team will fiercely represent you in Court and at the DMV hearing.