New Vehicle Code §23154 - Easy to Win?

California Drunk or Impaired DUI Law for the Public

Win These Hearings Easily If Your Facts Are The Majority

by Joshua M. Dale, Esq. posted 1/4/2009

A new Vehicle Code §23154 violation is an infraction in California and the elements for violation are:

1. the person was, at the time of driving, on probation for a violation of §§23152 or 23153,
2. the person had consumed an alcoholic beverage, and,
3. the person was driving a vehicle with a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test or other chemical test.

Just like for DUI drunk drivers, a §23154 violator is issued an Order of Suspension and Temporary License good for 30 days and the drivers license is confiscated pursuant to Vehicle Code §13389 - their vehicle is towed.

Most importantly to know though is DMV lacks authority to suspend administratively for this violation of §23154 except under certain circumstances; i.e. when all the issues stated in §13557 are met by a preponderance of evidence. A hearing must be requested within 10 days of the date of Notice/Temporary License which is usually the same date as detention or arrest/citation.

California Vehicle Code §13557 defines the issues to be heard at a DMV hearing on a §23154 violation because the action is taken under §§13353, 13353.1, or 13353.2. The DMV hearing officer should be instructed that DMV lacks authority to sustain an action unless the issues presented in the statute are found true by a preponderance of the evidence. Most cases can be set aside due to the Legislature's err.

§13557(b)(1) and (2) state the issues for actions ordered under §§13353, 13353.1, or 13353.2 by law enforcment officers or the DMV - (b)(1) for refusals and (b)(2) for blood alcohol tests (blood, breath, or urine):

   (b) (1) If the department determines in the review of a determination made under Section 13353 or 13353.1, by a preponderance of the evidence, all of the following facts, the department shall sustain the order of suspension or revocation:
   (A) That the peace officer had reasonable cause to believe that the person had been driving a motor vehicle in violation of Section 23136, 23140, 23152, or 23153.
   (B) That the person was placed under arrest or, if the alleged violation was of Section 23136, that the person was lawfully
detained.
   (C) That the person refused or failed to complete the chemical test or tests after being requested by a peace officer.
   (D) That, except for the persons described in Section 23612 who are incapable of refusing, the person had been told that his or her privilege to operate a motor vehicle would be suspended or revoked if he or she refused to submit to, and complete, the required testing.

If the department determines, by a preponderance of the evidence, that any of those facts were not proven, the department shall rescind the order of suspension or revocation and, provided the person is otherwise eligible, return or reissue the person's driver's license pursuant to Section 13551. The determination of the department upon administrative review is final unless a hearing is requested pursuant to Section 13558.

   (2) If the department determines in the review of a determination made under Section 13353.2, by the preponderance of the evidence, all of the following facts, the department shall sustain the order of suspension or revocation, or if the person is under 21 years of age and does not yet have a driver's license, the department shall delay issuance of that license for one year:
   (A) That the peace officer had reasonable cause to believe that the person had been driving a motor vehicle in violation of Section 23136, 23140, 23152, or 23153.
   (B) That the person was placed under arrest or, if the alleged violation was of Section 23136, that the person was lawfully detained.
   (C) That the person was driving a motor vehicle under any of the following circumstances:
   (i) When the person had 0.08 percent or more, by weight, of alcohol in his or her blood.
   (ii) When the person was under the age of 21 years and had 0.05 percent or more, by weight, of alcohol in his or her blood.
   (iii) When the person was under 21 years of age and had a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test, or other chemical test.
   If the department determines that any of those facts were not proven by the preponderance of the evidence, the department shall rescind the order of suspension or revocation and, provided that the person is otherwise eligible, return or reissue the person's driver's license pursuant to Section 13551. For persons under 21 years of age, the determination of the department pursuant to this paragraph is final unless a hearing is requested within 10 days of the determination, which hearing shall be conducted according to the provisions of Section 13558. For persons over 21 years of age, the determination of the department upon administrative review is final unless a hearing is requested pursuant to Section 13558.

The Legislature will likely fix these issues as knowledgeable defense attorneys and public defenders advise their clients to object to all §23154 DMV hearing actions in that the DMV doesn't have authority to suspend unless each issue is found true beyond a preponderance of the evidence - because that will require findings that the Respondent is under 21 years of age, it will be impossible in many cases. It is evident that new detainees/arrestees should be issued a new notice and temporary license Form DS-367 to cover the DMV's jurisdictional and notice problems and we'll look out for a new form issued by DMV.

Violators of §23154 can have fines doubled for construction zones, special zones, and none of this applies to a person previously convicted of wet reckless.

The material in this website is for informational purposes only, and is provided as a public service. This public information is not intended to be a source of legal advice. Do not rely upon these materials for legal advice. Seek a consultation with more than one drunk driving defense lawyer on the phone or in person about the facts of your case.

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