California DMV Admin Per Se Suspension

The administrative suspension and the DMV

One of the most important changes to DUI law for most people is the new statutory scheme effective January 1, 2019 allowing for an immediate restricted driving privilege with the installation of an ignition interlock device. CVC 13353.3
This is true whether the person has no priors or has one, two or three priors. The most significant points related to the Administrative Suspension upon a DUI arrest under the new law are as follows:
– A restricted license is available immediately without conducting an administrative hearing;
– A restricted license is still available with installation of an ignition interlock following outcome of the DMV administrative hearing;
– An administrative suspension is terminated upon conviction;
– Your client will receive credit for any pre-conviction restriction with an IID installed against any post conviction suspension;
– There is no administrative suspension for drug only offenses
Counsel representing a client before the Department of Motor Vehicles in a so-called “administrative per se” case, also called “APS” or, in the case of refusal suspensions, “implied consent,” must understand that the laws and rules are quite different from those encountered in the courtroom. Quite simply, the statutes are complex and confusing, the administration political and bureaucratic in the extreme, and the procedures and evidentiary rules almost completely lacking in due process. Counsel will find that “discovery” may be faxed to him the afternoon before the hearing and that the Department’s entire case consists of just paperwork. If counsel insists on the right of confrontation he or she must subpoena the arresting officer and pay his salary for the privilege. He will also be surprised to find that the “prosecutor” and “judge” are one and the same person; a DMV employee with no legal training. This “hearing officer” will rule on his own objections, grant himself continuances when he is caught unprepared during the hearing (while routinely denying counsel’s requests for continuance), and answer to his superiors if his “ set aside” rate (percentage of hearings won by the licensee) is considered too high.
The APS procedures are a morass of unfair rules that have evolved over the years due to the intense political pressures of Mothers Against Drunk Driving (MADD). However, the attorney who learns the intricacies of this bureaucratic jungle and can exploit its weaknesses will find his own “set aside” rate climbing.

Procedures

A person arrested for drunk driving who takes a breath test indicating a blood-alcohol concentration of 0.08% or greater will have his license immediately confiscated by the arresting officer, who will serve him with an “Administrative Per Se Order of Suspension/Revocation and Temporary License Endorsement,” also called a DMV DS-367 form.
If a blood or, in the rare case a urine sample, is withdrawn, the consequences are the same: the license will be confiscated and the order served even though the eventual results will not be known for some time. [See VC § 23612].
If the person is accused of refusing to submit to chemical testing, the license will similarly be seized and suspended with more severe consequences. If the officer fails to take the license or serve the order, the DMV will subsequently mail the order to the individual. The document provided by the officer serves as: (1) a notice of the administrative suspension, and (2) a 30-day temporary permit to drive, and (3) notice of the right to request an administrative hearing within 10 days.
In addition immediate administrative action will similarly occur when a person is under 21 and has a BAC of .01 or greater, a commercial driver operating a commercial vehicle has a BAC of .04 or greater and a person on probation for a prior DUI has a BAC of .01 or greater.
CVC § 13353.2 provides the following categories:
(a) The department shall immediately suspend the privilege of a person to operate a motor vehicle for any one of the following reasons:
(1) The person was driving a motor vehicle when the person had 0.08% or more, by weight, of alcohol in his or her blood.
(2) The person was under 21 years of age and had a blood-alcohol concentration of 0.01% or greater, as measured by a preliminary alcohol screening test, or other chemical test.
(3) The person was driving a vehicle that requires a commercial driver’s license when the person had 0.04% or more, by weight, of alcohol in his or her blood.
(4) The person was driving a motor vehicle when both of the following applied:
(A) The person was on probation for a violation of Section 23152 or 23153.
(B) The person had 0.01 percent or more, by weight, of alcohol in his or her blood, as measured by a preliminary alcohol screening test or other chemical test.
This action is taken pursuant to VC §§ 13353.2 and 13382. The latter statute provides:
(a) If the chemical test results for a person who has been arrested for a violation of Section 23152 or 25153, show that the person has 0.08% or more, by weight, of alcohol in the person’s blood, or if the person has been arrested for a violation of Section 23140, the chemical test results show that the person has 0.05% or more, by weight, of alcohol in the person’s blood, the peace officer, acting on behalf of the department, shall serve a notice of order of suspension or revocation of the person’s privilege to operate a motor vehicle personally on the arrested person.
(b) If the peace officer serves the notice of order suspension or revocation, the peace officer shall take possession of any driver’s license issued by this state which is held by the person. When the officer takes possession of a valid driver’s license, the officer shall issue, on behalf of the department, a temporary driver’s license. The temporary driver’s license shall be an endorsement on the notice of the order of suspension or revocation and shall be valid for 30 days from the date of arrest.
If the suspension is for a refusal to submit to chemical testing, the authority for license suspension derives from the “implied consent” provisions of VC §§ 13353 and 23612(e). The latter statute reads in relevant part:
(e) If the person, who has been arrested for a violation of Section 23140, 23152, or 23153, refuses or fails to complete a chemical test or tests, or requests that a blood or urine test be taken, the peace officer, acting on behalf of the department, shall serve the notice of order of suspension or revocation of the person’s privilege to operate a motor vehicle personally on the arrested person. The notice shall be on a form provided by the department.
As to California’s zero tolerance laws for persons under 21, CVC § 13388 provides:
(a) If a peace officer lawfully detains a person under 21 years of age who is driving a motor vehicle, and the officer has reasonable cause to believe that the person is in violation of Section 23136, the officer shall request that the person take a preliminary alcohol screening test to determine the presence of alcohol in the person, if a preliminary alcohol screening test device is immediately available. If a preliminary alcohol screening test device is not immediately available, the officer may request the person to submit to chemical testing of his or her blood, breath, or urine, conducted pursuant to Section 23612.
(b) If the person refuses to take, or fails to complete, the preliminary alcohol screening test or refuses to take or fails to complete a chemical test if a preliminary alcohol device is not immediately available, or if the person takes the preliminary alcohol screening test and that test reveals a blood-alcohol concentration of 0.01% or greater, or if the results of a chemical test reveal a blood-alcohol concentration of 0.01% or greater, the officer shall proceed as follows:
(1) The officer, acting on behalf of the department, shall serve the person with a notice of an order of suspension of the person’s driving privilege.
(2) The officer shall take possession of any driver’s license issued by this state which is held by the person. When the officer takes possession of a valid driver’s license, the officer shall issue, on behalf of the department, a temporary driver’s license. The temporary driver’s license shall be an endorsement on the notice of the order of suspension and shall be valid for 30 days from the date of issuance, or until receipt of the order of suspension from the department, whichever occurs first.
(3) The officer immediately shall forward a copy of the completed notice of order of suspension form, and any driver’s license taken into possession under paragraph (2), with the report required by Section 13380, to the department. For the purposes of this paragraph, “immediately” means on or before the end of the fifth ordinary business day after the notice of order of suspension was served.
(c) For the purposes of this section, a preliminary alcohol screening test device is an instrument designed and used to measure the presence of alcohol in a person based on a breath sample.
With regard to those persons already on probations CVC § 13389 provides:
(a) If a peace officer lawfully detains a person previously convicted of Section 23152 or 23153 who is driving a motor vehicle, while the person is on probation for a violation of Section 23152 or 23153, and the officer has reasonable cause to believe that the person is in violation of Section 23154, the officer shall request that the person take a preliminary alcohol screening test to determine the presence of alcohol in the person, if a preliminary alcohol screening test device is immediately available. If a preliminary alcohol screening test device is not immediately available, the officer may request the person to submit to chemical testing of his or her blood, breath, or urine, conducted pursuant to Section 23612.
(b) If the person refuses to take, or fails to complete, the preliminary alcohol screening test or refuses to take or fails to complete a chemical test if a preliminary alcohol device is not immediately available, or if the person takes the preliminary alcohol screening test and that test reveals a blood-alcohol concentration of 0.01 percent or greater, the officer shall proceed as follows:
(1) The officer, acting on behalf of the department, shall serve the person with a notice of an order of suspension of the person’s driving privilege.
(2)
(A) The officer shall take possession of any driver’s license issued by this state that is held by the person. When the officer takes possession of a valid driver’s license, the officer shall issue, on behalf of the department, a temporary driver’s license.
(B) The temporary driver’s license shall be an endorsement on the notice of the order of suspension and shall be valid for 30 days from the date of issuance, or until receipt of the order of suspension from the department, whichever occurs first.
(3)
(A) The officer shall immediately forward a copy of the completed notice of order of suspension form, and any driver’s license taken into possession under paragraph (2), with the report required by Section 13380, to the department.
(B) For the purposes of subparagraph (A), “immediately” means on or before the end of the fifth ordinary business day after the notice of order of suspension was served.
(c) For the purposes of this section, a preliminary alcohol screening test device is an instrument designed and used to measure the presence of alcohol in a person based on a breath sample.
After confiscating the arrestee’s license and serving him or her with an order of suspension, the arresting officer will complete a document entitled “Officer’s Statement,” which is also part of the DS 367 form. In the event that the arrestee is under the age of 21, the officer will have to complete an “Under Age 21 Officer’s Statement,” also referred to as a DS 367M form. [See sample of forms in Chapter 5]. This one-page form sets forth the bare minimum facts necessary for the DMV to suspend the license: observation of driving (or statutory exceptions), probable cause, and breath test results. The document is signed under oath by the arresting officer and, if applicable, the breath machine operator. The form is then supposed to be forwarded to the Department “immediately,” “on or before the end of the fifth ordinary business day following the arrest.” [VC § 13382(c)]
In fact, however, the officer routinely ignores this deadline with no consequences.
VC § 13353.2(d) then provides that the DMV will conduct an automatic administrative review of the suspension. If valid grounds exist, the licensee was driving and the test result was 0.08% or more according to the officer’s report, VC § 13353.3(b) provides for a suspension of four months. If the accused has suffered prior convictions within 10 years of VC §§ 23152, 23153, 23103.5 (“wet reckless”), or 23140, or PC §§ 191.5 or 192, the suspension is for at least one year.
In the case of an implied consent suspension for a refusal, VC § 13353(a)(1) provides for a one-year suspension. Additionally, for a driver who has received one or two priors within 10 years, revocations of two and three years are mandated. The Department requires an administrative fee and a Proof of Insurance, or “SR-22” form, to be filed before a driver can reinstate a license after any administrative suspension.
The individual has 10 days after service of the order within which to contact a local DMV Driver Safety Office and request a hearing.
The California Department of Motor Vehicles is perhaps the largest bureaucracy in the state. This department is responsible for issuing driver’s licenses and identification cards to residents and registering all motor vehicles in the state. As with most government agencies, the personnel claim to be understaffed and overworked. Accordingly, it is critical that counsel take steps to ensure that the request for the administrative per se hearing has been received by the DMV.
It is a prudent practice to transmit the request for a DMV hearing by facsimile and follow up by telephone to confirm they have received the request and have put the “stay” in the Driver’s Safety computer system. While it is certainly possible, rarely will the DMV waive the 10-day rule. If the client has missed the 10-day deadline a late hearing request can be made explaining why the deadline should be extended in the particular case. Ordinary hardship is not an excuse, but rather the request must demonstrate a failure on the part of the officer regarding serving the notice timely or a failure on the Department. It is not uncommon for individuals to contact DMV directly to request their hearing only to be misadvised regarding the need for such a request. Driver Safety will often excuse such a mistake where it can be established that a DMV representative misadvised an individual during the 10-day period causing the request to be made untimely. Missing the deadline for requesting the hearing or failing to ensure receipt of the request by the DMV will prejudice the client and could subject the attorney to discipline.
The hearing will be conducted at a place designated by the department “as close as practicable to the place where the arrest occurred, unless the parties agree to a different location.” [VC § 13558(b)].
If the Driver Safety Office nearest the arrest location is inconvenient to the client and counsel, a request for a transfer to a closer office can be made. The department will often grant such a request if they will not need the live testimony of the officer or other witness; conversely, of course, if counsel plans to subpoena the officer, witness fees will increase.
The issues to be considered at the administrative hearing are set forth in VC §§ 13558(c)(2) and 13557(b)(3):
1. Did the officer have reasonable cause to believe the individual was driving a vehicle in violation of VC §§ 23152 or 23153?
2. Was the person lawfully arrested? Or Detained in the case of a violation of 23136?
3. Was the person driving a vehicle with 0.08% blood-alcohol; .05 in the case of a person under the age of 21; .01 in the case of a person under 21 by a PAS device; .01 for a person on probation; .04 for a commercial driver;
If the hearing is for a refusal, the first two issues remain the same, and two others replace the third as per § 13557(b)(1):
3. Was the person properly advised of the consequences of the refusal?
4. Did the person refuse to submit to, or fail to complete, the test?
Notably, the issue of probable cause to arrest for drunk driving opens the door to cross-examination of the officer as to the entire range of symptoms observed: driving, appearance, field sobriety tests, statements, breath test, etc.
Finally, the client who has received a four-month administrative per se suspension may wish to consider a procedure by which the suspension period can be reduced to one month, followed by issuance of a work-restricted license. This involves enrollment in a first-offender DUI program, submission of an SR-22 (proof of insurance), and a $125 fee. [See VC § 13353.7(a)].

DMV Suspension for 0.08%

The “0.08%” suspension

After a person is arrested, the arresting officer is supposed to give him or her the choice of taking a breath or blood test. A urine test is authorized only if neither breath nor blood is available.
If the breath test is chosen and the test results indicate a blood-alcohol concentration of 0.08% or higher, the officer is required to confiscate the license unless it is from another state and issue the arrestee an “Administrative per se order of suspension/revocation and temporary license endorsement.”
The endorsement permits continued unrestricted driving for 30 days. As indicated in the fine print of that document, the individual has 10 days after its issuance within which to contact the DMV’s Driver Safety Office and request a hearing.
If no hearing is requested and the 30-day temporary license expires, or if the hearing officer subsequently rules against the individual, the suspension takes effect.
For a first offense, the suspension is for four months; this can be reduced to one month followed by a five-month restricted license, which permits driving to work and the DUI program. [VC § 13353.7(a)].
If the accused has suffered a prior conviction within 10 years, the suspension is for one year and no work restriction is possible following an administrative suspension.
However if a subsequent conviction of a DUI with a prior were to occur subsequently the administrative suspension would terminate where the underlying offense did not include the use of drugs, § 13352 (a)(3) and allow for obtaining for a 90-day hard suspension with completion of the educational component of the DUI program and installation of an Ignition Interlock Device. [VC § 13353.3(b)].
The issues to be resolved at the administrative hearing are set forth in VC § 13557(b)(2):
1. Did the officer have reasonable cause to believe the individual was driving a vehicle with 0.08% blood-alcohol in violation of §§ 23152 or 23153 (or, in the case of a driver under 21, driving with 0.01% or 0.05% in violation of §§ 23136 or 23140, .01 for a person on probation and .04 for a commercial driver)?
2. Was the person lawfully arrested, excepted where only lawful detention is required?
3. Was the person driving a vehicle with 0.08% blood-alcohol or more?
These three issues cover a very broad range of subjects and essentially permit counsel to go into almost every area that might be contested at a trial. The third issue alone is usually the subject of entire jury trials.
Consider, for example:
1. Was the individual actually driving the vehicle?
2. Since the question is blood-alcohol concentration at the time of driving when was the accused driving?
3. Do the objective facts indicate that the officer had probable cause to stop, detain, and arrest the person?
4. Was there legal authority to arrest? (For example, was the misdemeanor committed in the officer’s presence or was there a legal exception to this requirement?).
5. Did the officer comply with the breath-testing requirements of Title 17? (For example, did he keep the suspect under constant observation for 15 minutes preceding the test?)
6. Was the breath machine properly calibrated and maintained?
7. Does the client have any physical or medical condition that could create a false high reading on the machine, such as acid reflux, issues surrounding diabetes or other issues?
8. Was the blood sample collected, stored, and analyzed in accordance with Title 17 or medically acceptable practices? (For example, was there sufficient preservative and anticoagulant; was the blood sample contaminated or falsely increased due to fermentation, or any other reason to challenge the reliability of the blood alcohol result?
9. Is all evidence on the issues produced by the Department admissible under rules of evidence for administrative hearings?

High Blood Alcohol Level (BAC) DUI

Blood-alcohol over 0.15%

Effective January 1, 2006, VC § 23578 provides for sentence enhancement when the accused submitted to a chemical test, which resulted in a BAC reading of 0.15% or higher:
In addition to any other provision of this code, if a person is convicted of a violation of § 23152 or 23153, the court shall consider a concentration of alcohol in the person’s blood of 0.15 percent or more, by weight, or the refusal of the person to take a chemical test, as a special factor that may justify enhancing the penalties in sentencing, in determining whether to grant probation, and, if probation is granted, in determining additional or enhanced terms and conditions of probation. No specific punishment is referenced in the code.

Blood-alcohol over 0.20%

If you submitted to a blood, breath, or urine test resulting in a reading of 0.20% or higher, the sentencing judge may use this fact to enhance the penalty.
Prior to 2006, VC § 23206.1 provided:
In addition to any other provision of this code, if any person is convicted of a violation of Section 23152 or 23153, the court shall consider a concentration of alcohol in the person’s blood of 0.20 percent or more, by weight, or the refusal of the person to take a chemical test as a special factor which may justify enhancing the penalties in sentencing, in determining whether to grant probation, and, if probation is granted, in determining additional or enhanced terms and conditions of probation.
Unlike most of the enhancements mentioned previously, the 0.20% provision did not previously impose a specific additional sentence to be imposed. The statute simply directed the judge to consider this evidence as a “special factor” which “may justify enhancing the penalties,” denying probation, or adding conditions of probation. Many jurisdictions commonly imposed a sliding scale for imposition of a drinking/driving program, varying by the blood-alcohol concentration. Thus, for example, if the defendant’s BAC was 0.14% or lower, he was ordered to attend an AB-541 program for three months; if the reading was 0.15% to 0.19%, a six-month program was imposed, and those with test results of 0.20% or higher were required to attend a nine-month school.
However, the 0.15% enhancement is now the only provision not to impose a specific additional sentence, as those convicted of driving with a BAC of 0.20% or higher are now required to complete at least a nine-month program.
Effective January 1, 2006, VC § 23538, subd. (b)(2) provides:
The court shall refer a first offender whose blood-alcohol concentration was 0.20 percent or more, by weight, or who refused to take a chemical test, to participate for at least nine months or longer, as ordered by the court, in a licensed program that consists of at least 60 hours of program activities, including those education, group counseling, and individual interview sessions described in Chapter 9 (commencing with Section 11836) of Part 2 of Division 10.5 of the Health and Safety Code.

DUI Sentencing Enhancements

Possible Sentence Enhancements

If you are charged with a DUI, you should be aware of the possible existence of facts, if proven or admitted, will significantly increase the sentence.
These “sentence enhancements” will usually be apparent since they must be alleged in the criminal complaint. In many cases, however, the prosecution may ask leave to amend the complaint to reflect an enhancement relatively late in the proceedings.
The most common and for many years the only enhancement was a prior conviction for a DUI offense within 10 years of the current offense.
More recently, however, the legislature has continued in its unrelenting obfuscation of the DUI sentencing provisions by adding more enhancements. As of this writing, these include increased sentences for refusing to submit to blood-alcohol testing (CVC 23577), excessive speed (CVC 23582—additional 60 days in jail on a first or second offense DUI if found guilty-may be charged if there is speed greater than 20 mph above the posted speed limit on surface streets or speed greater than 30 mph above the posted speed limit on the freeway), excessive blood-alcohol concentration (CVC 23578-above .15%; CVC 23538), and having a child passenger under the age of 14 (Veh. Code, § 23572) and great bodily injury (Pen. Code, § 12022.7). See, e.g., People v. Poroj, 190 Cal. App. 4th 165, 117 Cal. Rptr. 3d 884 (4th Dist. 2010), review denied, (Mar. 2, 2011). Certainly, more laws such as these will be passed in the future.

California Ignition Interlock Device – Multiple Offenses

Second offense

A defendant convicted of having violated CVC § 23152 within 10 years of another misdemeanor or felony DUI offense (where the current conviction is for a misdemeanor) faces increased punishment.
If probation is not granted, CVC § 23540 provides for a jail term of at least 90 days and up tp one year, and the usual fine and license suspension under CVC 13352(3)(a). If probation is granted, CVC § 23542 again sets forth alternative minimum sentences. The first requires a jail term of at least 10 days but not more than one year and the fine. The second alternative, avoiding the minimum 10 days incarceration, involves serving two minimum 48-hour jail stays (usually on weekends):
  • (1) Be confined in the county jail for at least 96 hours, but not more than one year. A sentence of 96 hours of confinement shall be served in two increments consisting of a continuous 48 hours each. The two 48-hour increments may be served non-consecutively.
In addition, the standard DUI fine is imposed, along with a license suspension, the standard conditions of probation discussed above, and an “SB-38” drinking/driving school for 18 or 30 months.

Third offense

In the event of a third conviction within 10 years, Vehicle Code § 23546 provides whether or not probation is not granted, the defendant be sentenced to a jail term of at least 120 days but no more than one year and the customary fine. The driver’s license will be suspended by the DMV for a period of three years. Be aware that on a third offense the court may order a 10-year revocation in addition to any suspension imposed by the DMV. This DUI “three strikes” law, Vehicle Code § 23597, became effective January 1, 2012. The code sets forth a series of factors for the court to consider when making such an order. However, the code is unclear of when the order is to be made and what procedures are to be used to conduct such a hearing, if any hearing at all, is to be conducted. The factors set forth under the code are:
(1) The person’s level of remorse for the acts.
(2) The period of time that has elapsed since the person’s previous convictions.
(3) The person’s blood-alcohol level at the time of the violation.
(4) The person’s participation in an alcohol treatment program.
(5) The person’s risk to traffic or public safety.
(6) The person’s ability to install a certified ignition interlock device in each motor vehicle that he or she owns or operates.
The DMV is instructed to immediately revoke the license for 10 years upon receipt of a duly certified abstract with a finding under this section. A person may apply to the DMV to have their driving privileges reinstated after five years of the revocation has passed. The person applying for reinstatement must agree to install and maintain an ignition interlock device for two years following the reinstatement. In addition, the person must also satisfy the following conditions found in CA VC § 23597(c)(2):
(A) The person was not convicted of any drug- or alcohol-related offenses, under state law, during the driver’s license revocation period.
(B) The person successfully completed a driving-under-the-influence program, licensed pursuant to Section 11836 of the Health and Safety Code, following the date of the last conviction of a violation of Section 23152 or 23153.
(C) The person was not convicted of violating Section 14601, 14601.1, 14601.2, 14601.4, or 14601.5 during the driver’s license revocation period.
Failure to maintain or an attempt to avoid the interlock requirement will be grounds for immediate revocation of the license for the remainder of the original revocation period.
If probation is granted, § 23548 states that the defendant may have their sentence reduced to a minimum of 30 days in jail but no more than one year, pay the fine, agree to the standard probationary terms, and attend a state-licensed 30-month drinking/driving school. This latter requirement can be imposed only if the defendant requests the school and is unaffected by whether he has already completed an SB-38 program. See § 23548 for further provisions regarding drinking/driving schools for third offenders.

Fourth or subsequent offense

A fourth offense within 10 years may convert the drunk driving offense from a misdemeanor into a felony. It is a “wobbler” offense meaning that the Prosecution can file charges either as a Felony or a Misdemeanor. However, in most jurisdictions it is filed as a felony offense, which triggers the following state prison sentences: 16 months, two years, or a maximum of up to three years. However, a Court does have discretion to grant probation and is not required to impose a prison sentence.
A conviction for a Fourth offense DUI will trigger a four year license suspension by DMV.
CVC 23575.3 (h)(1)(D) now provides: Upon a conviction with three or more priors punishable under Section 23550, or a conviction punishable under Section 23550.5, the person shall install a functioning, certified ignition interlock device in the vehicle, as ordered by the court, that is operated by that person for a mandatory term of 36 months.
To put it as simply as possible, upon conviction for a 4th offense DUI, the license will be suspended for a period of three years. The person will be able to apply for a license immediately and avoid any hard suspension if the following is done:
1. Obtain and maintain an SR-22 for three years;
2. Enroll in and successfully complete Multiple Conviction Program;
3. Install a certified Ignition Interlock device and properly maintain/use it;
4. Pay a license re-issuance fee at a branch DMV.

California Ignition Interlock Device First DUI

Installation of Ignition Interlock—First Offense

The amendment to CVC 13352 now provides:
  • (A) “Except when the Court has ordered installation of a functioning, certified ignition interlock device pursuant to Section 23575.3, the department shall advise the person … may apply to the department for a restricted drivers license if the person meets the following requirements:
    • i. The underlying conviction was not only for the use of drugs …
    • ii. The person … provides to the department … subsequent to the violation date of the current underlying conviction, enrollment in a DUI program …
    • iii. The person agree, as a condition of the restriction, to continue … participation in the program …
    • iv. The person does both the following:
      • a. Submits the Verification of Installation form …
      • b. Agrees to maintain the functioning, certified ignition interlock device.
    •  v. The person provides proof of financial responsibility …

    •  vi. The person pays all … fees …

    •  vii. The person pays to the department a fee sufficient to cover the reasonable costs of administering …

  •  (B) The restrictions described in this paragraph shall remain in effect …” as provided in subdivision (e) which provides until all requirements for reinstatement are met … (i.e., completion of the DUI program and an SR22)

The essence of the amendment is whereas a person convicted of a misdemeanor first time DUI offense could previously attain a restrict license with mere enrollment in a DUI class and SR22, now there is the option to either obtain a restricted immediately by installation of an interlock (voluntarily or court ordered) or forego the interlock and incur the to and from work etc. restriction without the IID under CVC 13352.4.

Please Note—At the time of this printing, Matthew Klotzbach Mandatory Ignition Interlock for DUI Offender Act of 2019., 2019 Bill Text CA S.B. 545, was introduced on February 22, 2019 and would make it mandatory for all first offenders to install the IID instead of giving them the option to forego it by getting a restricted license.

  •  • This bill would require, instead of authorize, the court, upon the first criminal conviction of a person for driving under the influence, to order the person to install and maintain an IID for a specified period of time. The bill would delete those provisions authorizing a restricted license in lieu of an IID for first offenders.

  •  • The bill would require the department to credit any time that a person maintained a functioning IID during the period of that person’s restricted licensure, but prior to the criminal conviction, toward any term of maintaining such a device, required by law upon conviction or ordered by the court pursuant to the above-described statute.

  •  • The bill would, however, require that if a person submits a failing breath sample within the last two months of their mandatory term of maintaining an IID, the person will not receive credit for the previous two months.

  •  • The bill would also extend the operation of the law requiring IIDs until January 1, 2027, and make conforming changes to related reporting requirements.

  •  • This bill would declare that it is to take effect immediately as an urgency statute.

Additionally, though rarely ordered or justifiable the Court has discretion to prohibit the issuance of a restricted license.
If under 21, and convicted of CVC 23136, 23140, 23152, or 23153, DMV will suspend the license for one year with no restrictions. In order to obtain a restricted license a critical need application must be submitted to the Court or DMV. The application is made pursuant to CVC 13202.5. In cases where the Court grants the application DMV may still refuse to issue the restricted license. In that event Counsel may have to obtain a further court order requiring DMV to follow the court’s order.

California DUI First Offense Penalties

First DUI Offense

For a first offense within 10 years, the applicable sections depend upon whether probation is granted. If probation is not granted, CVC § 23536 requires a minimum jail sentence of four days and a minimum fine of $390 (mandatory fees and assessments, total fees are likely to exceed $2,000.00). At least 48 hours of the incarceration must be continuous, but the time can be served when the defendant is not working.

§ 23536 provides:
(a) If any person is convicted of a first violation of Section 23152, that person shall be punished by imprisonment in the county jail for not less than 96 hours, at least 48 hours of which shall be continuous, no more than six months, and by a fine of not less than three hundred ninety dollars ($390), nor more than one thousand dollars ($1000).
(b) The court shall order that any person punished under subdivision (a), who is to be punished by imprisonment in the county jail, be imprisoned on days other than days of regular employment of the person, as determined by the court. If the court determines that 48 hours of continuous imprisonment would interfere with the person’s work schedule, the court shall allow the person to serve the imprisonment whenever the person is normally scheduled for time off from work. The court shall make this determination based upon a representation from the defendant’s attorney or upon affidavit or testimony from the defendant.
The statute goes on to provide for a six-month license suspension pursuant to § 13352 or 13352.1. CVC 13352 has been significantly amended effective January 1, 2019. Previously a person convicted of a first DUI misdemeanor was immediately eligible for a restricted license with enrollment in a DUI program and attaining an SR22. The same is true with the new law, except unless the Court orders a person to install an Interlock Ignition Device (IID), one will have the option to either install an IID or have a restricted license for 12 months. See Veh. Code, § 23575.3, subd. (h)(1)(A)(i).
If the Court does not order an IID, then one must do the following in order to obtain a restricted driver’s license for 12 months, which allow them to drive only to, from and during the course of work and to and from alcohol classes:
  • (1) Submit proof satisfactory to the department of either of the following:
    • (A) Enrollment in a driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code, as described in subdivision (b) of Section 23538 of this code.
    • (B) Enrollment in a program described in subdivision (b) of Section 23542, if the court has ordered the person to enroll in, participate in, and complete either program described in that section, in which case the person shall not be required to provide proof of the enrollment described in subparagraph (A).
  • (2) Submits proof of financial responsibility, as defined in Section 16430.
  • (3) Pays all applicable reinstatement or reissue fees and any restriction fee required by the department.
See Veh. Code, § 13352.4.
he specific provisions are set forth at the end of this section.
However, if the person is granted probation, CVC § 23538 provides no mandatory provision for incarceration, but may impose a condition of at least 48 hours but no more than six months along with the same fine, and six month license suspension.
§ 23538 provides:
(a)(1) If the court grants probation to person punished under Section 23536, in addition to the provisions of Section 23600 and any other terms and conditions imposed by the court, the court shall impose as a condition of probation that the person pay a fine of at least three hundred ninety dollars ($390), but not more than one thousand dollars ($1000). The court may also impose, as a condition of probation, that the person be confined in county jail for at least 48 hours, but not more than six months.
(a)(2) The person’s privilege to operate a motor vehicle shall be suspended by the department under paragraph (1) of subdivision (a) of Section 13352 or Section 13352.1 The court shall require the person to surrender the driver’s license to the court in accordance with Section 13550.
Finally, § 23600 (b) sets forth further minimum conditions of probation:
  • 1. Probation for three to five years;
  • 2. No driving with “any measurable amount of alcohol” in the defendant’s blood;
  • 3. If arrested for drunk driving, the defendant “shall not refuse to submit to a chemical test”;
  • 4. Commit no criminal offenses.
In addition to the statutory conditions of probation, judges commonly impose such terms as restitution, community service, Cal Trans roadside trash collection, Alcoholics Anonymous attendance, attendance at a victim impact panel such as at the county morgue or a Mother’s Against Drunk Driving (MADD) class, alcohol monitoring such as continuous breath testing or an ankle monitor to detect from alcohol, abstain from alcohol, or completion of an alcohol rehabilitation program. Many judges also impose search conditions. Counsel should object to unreasonable terms; and those not imposed by statute. Involvement in a residential alcohol rehabilitation program can, of course, count as time served in custody for purposes of jail sentences. [See Penal Code § 2900.5].
The statute further provides for a mandatory violation of probation where the defendant is subsequently found to have driven with a blood-alcohol concentration of 0.01% or more while on probation. In addition a probationer will lose his/her license for a period of one year if they drive with .01 or more BAC while on probation with no opportunity to obtain a restricted license. CVC § 23154

Why Do I Need a Trust?

When people hear the words estate plan, will, trust, or probate, they may have no idea what those concepts actually mean, but they know they deal with death, which is a difficult topic.  No one wants to think about the death of a loved one or their own death.  Often people are years into their retirement before they actually sit down to plan for what happens to their assets when they die.   An estate plan is something everyone needs, no matter what age, medical condition, or net worth.  It is a set of instructions on what their last wishes would be.

Probate–  So just what happens when someone dies?  If the person dies with or without a will, there is a legal process to collect and give the person’s things to their heirs, after paying off their debts.  That legal process is called probate.  In California, there is a special section of the local county courts that only deal with probate cases.  Typically, a case is filed in the courts by an attorney familiar with how the process works and the courts oversee the collection and distribution of assets, along with payment of any liabilities.  The process is just like any court case.  It can take a few months to a few years to finish and close the case.

Costs of Probate–  The current cost of probate just for the attorney to handle the case in California (as of March 2014) are:

Size of Estate                                   Compensation

First $100,000                                      4%

Next $100,000                                     3%

Next $800,000                                     2%

Next $9 million                                      1%

Next $15 million                                    1/2%

Excess over $25 million              “Reasonable amount to be determined by the court”

The size of estate is determined by the gross asset value.  This means that there is no deduction for the debts owed.  For example, someone with a home valued at $200,000 would get an estate value of $200,000 and compensation would automatically be awarded of $7,000, even if the home had a mortgage of $180,000 that would have to be paid off.

These amounts are automatic and set by law.  If there is a personal representative in addition to the attorney, the amount would double.  Also, the out of pocket expenses for any appraisals, filing fees, or other costs would be taken out of the estate as well.

Dying Without a Will–  Someone who dies without a valid will in place is said to die “intestate.”  Since there are no instructions on what to do with their stuff, the laws of the state decide what happens.  They are the default instructions on what to do.  So, if you wanted to give everything to only one son because the other son was foolish with money, you would be out of luck.  You have no say in what happens to your things.  That could mean things like a former spouse getting your money if the divorce was never finalized or some distant relative you hate getting everything when you would rather give your money to charity.  Your case would still go through a probate court to determine what happens to your things, so there is the time and expense of going through the court process.

Dying with a Will–  If you have a will, it must be valid and would be submitted to the court through probate.  The will tells the court what you want done with your assets.  For example, you may want to give a specific gift of some valuable jewelry to your daughter or give 10% of your assets to a local church.  The process and validity of wills is set by state law, but generally, it must be in writing, signed by the deceased, and witnessed in some fashion, sometimes by two or more witnesses and sometimes by a notary.  It also complicates things if there are more than one version of a will and no one knows which is the correct version or if the people signing as witnesses are also getting the bulk of the assets.  It is always best to have independent witnesses so there are no claims that the witness signature is not valid.

Alternatives to Probate– There are a number of ways to avoid probate courts.  The best way to avoid probate is to set out all of your wishes in a trust.  This is a written document similar to a will, but stays private and does not need to go through a probate process.

There are other ways to avoid probate for certain small estates, for transfers of property through joint tenancy or community property laws, or to beneficiaries automatically for things like life insurance.

The key advantages to consider about whether to get a will:

  • State your wishes to avoid assets going to unwanted people
  • Avoid fighting between family members after you die
  • Appoint a personal representative or administrator of your will to keep some level of control outside of the courts
  • Set terms on distributions to those below certain age or appoint trustee to oversee distributions and avoid mismanagement by the person receiving the money

Additional considerations to use a trust over a will:

  • Keep terms of the trust and its distributions private forever (a will goes into probate and gets entered into a court record)
  • Avoid probate process, time, and costs
  • Allows maximum flexibility and can be used with other asset protection

What is Asset Protection?

Asset protection planning is the method of preparing for the possibility of future lawsuits by rearranging the ownership of assets so that they are beyond the reach of potential third party creditors. It can act as a form of supplementary insurance in an overall strategy to protect you from the risks associated with your industry, businesses and professions, however, insurance policies have limits and exclusions.

FAMILY ASSET PROTECTION

  • Simple and complex will creation
  • Establishment of revocable, irrevocable and charitable trusts
  • Structure of family limited partnerships
  • Estate and gift tax review
  • Estate and probate administration
  • Estate and trust litigation
  • Limited liability entities
  • Asset protection trusts
  • Off-shore trusts

INDIVIDUAL ASSET PROTECTION

  • Pre- and post-marital agreements
  • Property ownership, contract drafting and review
  • Retirement planning (pension, profit sharing, employee stock option, 401(k) and individual retirement accounts)
  • Living trusts, special needs trusts, and other disability planning
  • Medical powers of attorney, durable powers of attorney and medical directives
  • Guardianship alternatives

BUSINESS ASSET PROTECTION

We provide businesses of every size with legal advice and assistance in order to help them organize and grow successfully.

Types of Trusts

A trust is basically a written contract that tells people what to do with your things and appoints someone (trustee) to follow those instructions.  There are many different forms of trusts.   They are usually divided into two categories, revocable, and irrevocable.

Revocable Trust–  These are trusts that can be revoked.  In other words, the trust can be changed, modified, terminated, or amended, usually by the people who setup the trust (in some cases referred to as trustor, settlor, or grantor).   This allows the people who are putting assets into a trust to have control to be able to change the trust and who gets those assets during their lifetime if circumstances or their wishes change.

Inter-vivos revocable (living) trust–  This is most commonly referred to as a “family trust.”  It is basically a trust that can be revoked or changed at any time during the life (inter-vivos) of the person or people who set them up.  This is the most common form of trust used in estate planning since it is very flexible and can be changed.  The terms of the trust become certain and require action only upon death of the person or people who set up the trust.  Many times these trusts become irrevocable trusts or create other irrevocable trusts for the beneficiary of the trust.  The most common form would be a couple with a trust for their family assets that puts  all assets into an irrevocable trust if they both died for the benefit of their kids, who may still be minors.  The trustee would oversee distributions of the assets to the minor children to be sure the money isn’t wasted and applied properly.   Although put into the trust, the assets are still controlled by the person who put them into the trust.

Irrevocable Trust–  This is just the general category of trust that cannot be changed, amended, or revoked at any time after it is signed, even by the person who created the trust.  There are some legal ways to revoke or amend a trust of this type, but require many steps to be taken to do this properly.

One of the biggest benefits of irrevocable trusts are their use in tax, gift, and asset protection planning.  They can be used to make gifts during a person’s lifetime of an asset into a trust for a beneficiary to have the gift be effective now, but not be given to the person until a later time.  For example, someone could put a home or large sum of money into an irrevocable trust that would only be distributed to their kids after a certain period of time, like when they reach the age of 25.  Even though the gift would be effective now and could not be taken back, the kids wouldn’t have access to the asset until certain conditions are met.

There are many forms of these trusts and have many different uses, but the main drawback is the fact that once formed and assets are put into them, the trust terms cannot be changed and assets cannot be taken out, except in very limited circumstances.   This makes them inflexible for general estate planning and are usually only for very specific cases or certain assets.  Since they cannot be changed.  you lose control over the assets and they are technically owned by the trust, which becomes a separate legal entity.  This can prove very useful for asset protection purposes because they are then outside of the hands of any creditors.  For example, if you put a rental home into an irrevocable trust for your kids benefit and you later get a judgment against you, the creditor could not come after that rental home since you no longer own it.  It is the property of the trust.

Although there are many different forms, here are some of the other types of specific trusts:

Martial Deduction Trust- QTIP (Qualified Terminable Interest Property)- This trust is used to maximize the martial deduction and avoid estate taxes.

Charitable Remainder Trust

Charitable Lead Trust

Charitable Remainder Annuity Trust (CRAT)

Charitable Remainder Unitrust (CRUT)

Bypass Trust (Credit Shelter Trust)-

Generation-Skipping Trust (Dynasty Trust)-

Intentionally Defective Grantor Trust (IDGT)-

Grantor Retained Annuity Trust (GRAT)-

Grantor Retained Interest Trust (GRIT)-

Qualified Personal Residence Trust (QPRT)- Used to hold someone’s primary residence to protect it from creditors and still allow grantor to live in the house for a period of time, then transfer to beneficiary.

Domestic Asset Protection Trust– Sometimes called “Spendthrift Trust” or classified as discretionary trust, support trust, personal trust, or shifting trust

Offshore Asset Protection Trust- Non-US irrevocable trust

Irrevocable Life Insurance Trust (ILIT)- used to hold life insurance policy and proceeds to distribute upon death for estate, tax, and asset protection purposes.

Testamentary Trust–  This is usually a trust that is created by a will upon death to hold certain assets and distribute them over time.