CALIFORNIA DUI and CDL DEFENSE CENTER BLOG

CALIFORNIA DUI and CDL DEFENSE CENTER BLOG

What is an Electronic Monitoring Device such as a SCRAM bracelet, and how has it changed the way DUI cases are handled by California courts?

by Attorney Felicia Woods-Yates on 03/22/15

What is an Electronic Monitoring Device such as a SCRAM bracelet, and how has it changed the way DUI cases are handled by California courts?

The first electronic monitoring device was created over 50 years ago by students at Harvard University.  It is now an integral part of our criminal justice system, and can be used to keep tabs on the whereabouts, as well as any alcohol consumption, by DUI defendants.

Today’s devices vary in size and shape, but all are designed to accomplish the same thing…make sure a DUI defendant does not re-offend while awaiting a trial or some other disposition in a pending case.  The modern day monitoring devices, known as SCRAM (Secure Continuous Remote Alcohol Monitoring) bracelets, are normally worn around the ankle.  The devices can even be equipped with GPS capabilities and rely upon mobile broadband towers (like AT&T, Verizon and Sprint use) to monitor a person’s location.  Blood alcohol levels of DUI defendants are typically measured through a person’s sweat glands, and the presence of any alcohol would be reported back to a monitoring station – which would then notify the Court of any perceived SCRAM violation.   

A DUI defendant will normally be required to wear this device pursuant to a Court Order, during the pendency of his/her DUI proceedings.  One common reason a Court may use to compel participation in a SCRAM program is whenever a person is facing a DUI charge(s) in which the BAC (Blood Alcohol Content) test results reflect an unusually high level, such as a .16 BAC or higher (twice the “legal limit” of .08 BAC - the point at which California law assumes you are impaired).  There are daily SCRAM monitoring fees the DUI defendant must pay in order to participate in the program.  Once your case has been adjudicated or finalized, then the requirement of wearing the SCRAM device is normally lifted by the Court – so it does not become a term or condition of any probationary period.  The SCRAM device IS NOT a form of House Arrest – you may still work, go to school, etc., during the SCRAM program, but you must not drink any alcohol.

The reality is this, since jails are oftentimes overcrowded and there is a high cost associated with incarcerating people, many states (including California) have been relying upon electronic monitors as a cost-effective way to send people home and free up jail space. Among other objectives, SCRAM programs are designed to reintegrate people back into society, where they can work, pay taxes, and have access to community services.  Interestingly, the original intent of the electronic monitoring device when it was first invented 50 years ago was to reward people for good behavior and change their habits through positive reinforcement, as opposed to the modern day use of punishing them for alleged bad behavior.

Since everyone's DUI incident is unique to that individual and the specific circumstances, you should consult with a competent defense attorney to determine your best course of action.  Felicia Yates has been practicing law for over 30 years in California and can be reached at (760) 326-5297, and found at Law Offices of Felicia Yates & Associates.

What should a DUI Defendant expect before, during and after a DMV Administrative Per Se (Admin Per Se) hearing, and what are your options if the hearing officer’s decision is adverse?

by Attorney Felicia Woods-Yates on 03/17/15

What should a DUI Defendant expect before, during and after a DMV Administrative Per Se (Admin Per Se) hearing, and what are your options if the hearing officer’s decision is adverse?

It is worth noting again, that any DMV administrative action is independent of any penalties imposed by a Superior Court for a conviction of the same exact DUI offense.  While some Due Process is provided to a Defendant (i.e. – the issuance of a 30-day Temporary License on pink paper), you are not given the typical Constitutional protections you would find in a Court of Law. 

One thing to be acutely aware of when facing a DMV Admin Per Se proceeding, is that the DMV does not factor in your need to drive a motor vehicle (i.e. – for employment or education purposes).  The only areas a DMV hearing officer cares about is as follows: 

For Defendants who took and completed a chemical test pursuant to California’s Implied Consent Law, they would be facing these issues…

  1. Was there Probable Cause (Reasonable Suspicion by the citing officer) to believe you were driving a motor vehicle in violation of California Vehicle Code sections 23152, 23153, or 23154?
  2. Were you lawfully detained while on DUI probation or lawfully arrested?
  3. Were you driving a motor vehicle when you had a 0.08% or higher Blood Alcohol Content (BAC) level?
    1. If you were driving a commercial vehicle, the level would drop to a 0.04% BAC
    2. If you were on DUI Probation, then the level would drop even further, to a 0.01% BAC

For Defendants who refused or failed to complete a chemical test (breath or blood), you would be facing these issues:

1.    Was there Probable Cause (Reasonable Suspicion by the citing officer) to believe you were driving a motor vehicle in violation of California Vehicle Code (CVC) sections 23152, 23153, or 23154?

2.    Were you lawfully detained (stopped or pulled over by a law enforcement officer) while on DUI probation, or lawfully arrested?

3.    Were you told by the citing officer that your driving privilege would be suspended or revoked for 1, 2, or 3 years (Note: this length would depend upon your 10-year driving record) if you refused to submit to or failed to complete a chemical test?

4.    Did you actually refuse to submit to, or fail to complete a chemical test (preliminary alcohol screening (PAS) test while on DUI probation), after being requested to do so by a peace officer? 

At the conclusion of the hearing process, the DMV Hearing Officer (who is neither a judge nor an attorney at law) will render a decision in writing which will result in your license suspension either being Sustained (Upheld), or being Set Aside (Dismissed). 

Should your license suspension be Sustained, you have the option to Appeal, or to request a Restricted Non-Commercial Driver’s License after serving a thirty (30) day “hard suspension” (not operating a motor vehicle for any reason whatsoever). 

To be eligible for such a Restricted non-commercial License, you must meet the following criteria:

  • This is your first offense.
  • You completed a chemical test.
  • You were 21 years of age or older (pursuant to CVC section 13353.7).
  • Your driving privilege is not suspended or revoked for some other reason.
  • If approved, then you will be issued a “to/from/during course of employment and DUI program restriction” license., which will be valid for five (5) months from the issuance date.  Since a first time offender receives a suspension period of only four (4) months, this restricted license would adequately cover you until the conclusion of your original suspension period. 

To be eligible for a Critical Need License Restriction for drivers Under the Age of 21 (see CVC section 13353.8), you must meet the following criteria:

·         You completed a PAS or chemical test with a BAC level of 0.01% or more.

·         You have a critical need to drive (a specific critical need condition exists, and all other transportation is inadequate).

·         Only first offenders who completed a PAS or other chemical test are eligible to apply for a Critical Need restricted driver’s license.

·         You must show the DMV that public transportation in your area is not sufficient to accomplish your transportation to and from work, to and from school, or you happen to be the primary means of transportation for a family member to medical appointments.

·         If approved, the DMV will issue a restricted license in lieu of a one-year full suspension, based on a “critical need” to drive.

To actually apply for a Restricted non-commercial License, you must do the following, and wait to apply until after the thirty (30) day “hard suspension” has run its course:

  • Enroll in a licensed DUI First Offender program (notify the program provider that you intend to apply for a restricted driver license).
  • Ask the program provider to file a Proof of Enrollment Certificate (DL 107) in a licensed DUI First Offender program with the DMV (pursuant to CVC section 23538(b)).
  • File proof of financial responsibility (i.e., this is known as an “SR 22” or Insurance Proof Certificate from a bona-fide auto insurer).
  • Pay a $125 reissuance fee.

 To actually apply for a Critical Need License Restriction, you must meet the following criteria, and wait to apply until after the thirty (30) day “hard suspension” has run its course:

  • Pay a $100 reissue fee to DMV.
  • File proof of financial responsibility (SR 22).
  • Maintain proof of financial responsibility for three years.

Since everyone's DUI incident is unique to that individual and the specific circumstances, you should consult with a competent defense attorney to determine your best course of action.  Felicia Yates has been practicing law for over 30 years in California and can be reached at (760) 326-5297, and found at Law Offices of Felicia Yates & Associates.

Whether you are a DUI defendant, a CDL holder issued a traffic ticket, or are seeking an attorney to assist you in any area of the law, you should be aware of the California State Bar rules prohibiting guarantees by an attorney.

by Attorney Felicia Woods-Yates on 03/15/15

Whether you are a DUI defendant who was recently arrested, a CDL holder who was recently issued a traffic ticket, or are seeking the representation of an attorney to assist you in any area of the law, you should be aware of the California State Bar rules and regulations that prohibit an attorney from guaranteeing or predicting the outcome of any legal representation.

Our office has heard it before from prospective clients…”the attorney’s office I spoke to earlier said that they would guarantee the results of my case.”  My response is always the same to the client…if any attorney or law firm guarantees you the outcome of a legal matter, turn around, and run the other way as fast as you can.  

Not only is it not plausible for an attorney to guarantee a case outcome (due to the many nuances of our criminal and civil justice systems), but it is an Ethical Violation of California State Bar Rule No. 1-400 (Advertising and Solicitation standards).  State Bar Rule No. 1-400 states in part as follows:  “For purposes of this rule, “communication” means any message or offer made by or on behalf of a member [attorney] concerning the availability for professional employment of a member [attorney] or a law firm directed to any former, present, or prospective client (emphasis added)…” 

The Rule further goes on to say that “…the following standards, effective May 27, 1989,…are presumed to be in violation of rule 1-400: (1) A “communication” which contains guarantees, warranties, or predictions regarding the result of the representation (emphasis added). (2) A “communication” which contains testimonials about or endorsements of a member unless such communication also contains an express disclaimer such as 'this testimonial or endorsement does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter'."

As a practicing attorney for over 30 years in California, I have no problem discussing my past case results with clients, and emphasizing my “track record” of successes in both the criminal and civil arena.  However, my office will never even imply that we can predict or guarantee the outcome of a pending legal matter.  Today’s legal market has become a very competitive environment, with attorneys working harder than ever to solicit and acquire new clientele.  Despite the state of our legal economy, there is never a valid reason for any attorney in California to violate a State Bar Rule of Professional Conduct.  As a legal consumer, you should focus on an attorney’s experience, past record of case results, and his/her public record with the State Bar.  You may review a California attorney’s public record of discipline by going to the State Bar of California’s website (www.calbar.ca.gov), and searching for an attorney’s profile by entering their name OR their State Bar number in the “attorney search” field.


Since everyone's DUI and traffic incident is unique to that individual and the specific circumstances, you should consult with a competent defense attorney to determine your best course of action.  Felicia Yates has been practicing law for over 30 years in California and can be reached at (760) 326-5297, and found at Law Offices of Felicia Yates & Associates.

What you need to know about the consequences of being a "repeat traffic offender", after you have already attended Traffic Violator School (aka Traffic School) in the State of California…

by Attorney Felicia Woods-Yates on 03/10/15

What you need to know about the consequences of being a "repeat traffic offender", after you have already attended Traffic Violator School (aka Traffic School) in the State of California…


Whether you are a Commercial or Non-Commercial licensee, and you have attended or are about to attend Traffic School, pursuant to a California court's authorization, you need to be aware of the impact of California Assembly Bill 2499 (AB 2499).

What exactly is AB 2499?  AB 2499 is a relatively new law, which became effective on July 1, 2011.  The law essentially states that the courts and DMV will no longer "Dismiss" a traffic infraction once a driver attends Traffic School.  Instead, the law requires that ALL offenses be classified as "Convictions", which will be included on a person's driving history.  However, once you successfully complete Traffic School, then your underlying offense (such as Speeding in Excess of the Posted Limit) will be "Masked" on your motor vehicle record, and you will avoid Negligent Operator Points.

This is where it gets interesting!!  If you are issued another traffic citation within Eighteen (18) months of the most recent prior traffic citation you received (for which you attended Traffic School), then all bets are off.  The prior conviction which was masked, will become "unmasked", negligent operator points will be added onto your motor vehicle record, and your insurance company will be notified (according to the DMV's press release) with respect to BOTH the prior traffic violation and the current traffic violation!  So, the moral of the story is do your best NOT to re-offend within 18 months of a prior traffic ticket, because unlike before AB 2499, your prior offenses will no longer be dismissed by the courts once you complete Traffic Violator School.  

As always, you still may not attend Traffic School for a major traffic conviction (DUI or Reckless Driving, for example), or if you are a CDL holder and were operating a commercial vehicle at the time you were issued your traffic ticket.

Since everyone's traffic incident is unique to that individual and the specific circumstances, you should consult with a competent defense attorney to determine your best course of action.  Felicia Yates has been practicing law for over 30 years in California and can be reached at (760) 326-5297, and found at Law Offices of Felicia Yates & Associates.



  

What Commercial Drivers Licensees (CDL holders) need to know about Bail and Fine amounts in the State of California…

by Attorney Felicia Woods-Yates on 03/07/15

What Commercial Driver's Licensees (CDL holders) need to know about Bail and Fine amounts in the State of California…


The State of California’s Judicial Council just released a new Uniform Bail and Penalty Schedule on January 1, 2015, as authorized under California Rules of Court, Rule 4.102.  The Traffic Infraction and Traffic Misdemeanor sections alone of this newly released schedule, cover approximately 125 pages of content.  Of course, only a modest percentage of that content is relevant to the types of typical traffic violations issued to a Commercial Driver's Licensee or CDL holder within the State of California. 

Let’s take a look at one of the most common citations issued in California to a CDL holder – a violation of California Vehicle Code (CVC) Section 22406(a), also known as Speeding in a Commercial Vehicle.  The Bail amount for this particular violation varies, primarily based upon, the alleged speed of your vehicle at the time you are issued a traffic ticket.  If you are cited for traveling 1 – 9 miles per hour over the speed limit of 55 mph, then your “Total Bail” amount will be calculated at $285.00.  However, if you are cited for traveling 10 miles per hour or more over the speed limit of 55 mph, then your “Total Bail” amount will leap to a calculated figure of $490.00.  In both instances, there are eleven (11) separate fees or assessments that the State of California adds together which makes up the “Total Bail” amount.

Let's look at two more common violations issued to CDL holders in California:  CVC Section 21655(b) - Failure to Use Designated Lanes and CVC Section 34501 thru 34506 - Log Book / Safety Regulations.  The Bail amount for a violation of CVC Section 21655(b) under the new schedule is $238.00.  The Bail amount for a violation of CVC Sections 34501 thru 34506 varies from a low of $197.00, to a high of $695.00.       

The "Total Bail" amount is also the amount which the Superior Court will generally include on their Courtesy Notice sent via U.S. mail to a traffic Defendant.  By the way…if you do not receive the Courtesy Notice in the mail from the Superior Court, it is NOT a valid legal reason you may use to ignore the appearance date that the citing officer wrote towards the bottom of the traffic citation – when you signed your name on the traffic citation, you made a promise to appear, without admitting guilt, by the date and time indicated on the traffic ticket!

Except as otherwise required by statute, under California Penal Code sections 1203, 1203.1, and 1203(b), a Judge has the discretion to suspend (eliminate or reduce) the minimum sentence, including Fines and Penalties. For traffic cases, Vehicle Code section 42003 permits a Judge or Referee to consider a Defendant’s ability to pay. Also Vehicle Code sections 42003 and 40510.5 permit installment payments of judgments in traffic cases.

One reason it so important for a CDL holder to hire a competent attorney to contest any traffic citation he/she receives, is that simply posting the Bail amount owed to the Court is the same thing as standing in front of the Judge and saying “Guilty as Charged Your Honor.”  It also gives a person the best chance to obtain a Dismissal of their charge, or a Reduction in their charge, so Negligent Operator Points are avoided, along with eliminating the negative stigma of having a moving violation on their motor vehicle record.

Since everyone's traffic incident is unique to that individual and the specific circumstances, you should consult with a competent defense attorney to determine your best course of action.  Felicia Yates has been practicing law for over 30 years in California and can be reached at (760) 326-5297, and found at Law Offices of Felicia Yates & Associates.

What are “aggravating circumstances” in a DUI incident which may be used against an individual by the District Attorney’s (DA) office to enhance potential DUI penalties?

by Attorney Felicia Woods-Yates on 03/01/15

What are “aggravating circumstances” in a DUI incident which may be used against an individual by the District Attorney’s (DA) office, to enhance potential DUI penalties?

The following are typical scenarios that the DA’s office considers aggravating circumstances:

  1. Your DUI violation involved an accident with another car;
  2. Your chemical test results (blood, breath or urine) returned a Blood Alcohol level of .20 or above;
  3. At the time you were cited, there were children under the age of 14 in the car; in fact, a Child Endangerment charge may be filed against you;
  4. Your DUI violation involved an accident, where someone else got injured;
  5. If you refused to take a chemical test (blood or breath test), then you would be in violation of California’s Implied Consent Law (CVC Section 23612).  California’s “implied consent” law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving under the influence of alcohol or drugs, then you implicitly consent to taking a chemical test of your blood, breath, or urine for the purpose of determining your blood alcohol content (BAC).  In California, the penalties for refusing to take a blood or breath test begin with a one-year suspension of your license. You could lose your license for two years if this is your second refusal, or if you already had a reckless-driving or DUI conviction within the last ten years. The penalty jumps to a three-year suspension for your third refusal, or if you have had more than one reckless-driving or DUI conviction within ten years;
  6. If you are currently serving probation for another violation, this may be used by the DA to enhance any DUI penalties;
  7. If you have incurred two or three DUIs within a short period of time (i.e. - 10 years or less), then this will be used by the DA to enhance any DUI penalties; a fourth DUI arrest, with three prior DUI convictions within a 10 year period of time, would make an individual a candidate for a Felony charge, and a State Prison sentence;
  8. If you were cited for speeding at least 20 mph or more over the speed limit, and driving in a reckless manner, this may be used by the DA to enhance any DUI penalties;
  9. An expired or suspended driver’s license may also be used by the DA to enhance any DUI penalties;
  10. In 1994, "Zero Tolerance" was signed into California law, to discourage underage drinking and driving.  If you are under the age of 21 years old, the DMV, the Court and the DA will seek to suspend your license for one-year, pursuant to California’s Zero Tolerance Law (CVC Section 23136).  This law states that it is against the law to drive with a blood alcohol concentration (BAC) of .01% or higher if you are under 21 years of age.  On your first offense, your driving privilege will be suspended for one-year if:
  11. ·         your BAC is .01% or higher, or

    ·         you refuse to take the preliminary alcohol screening (PAS) test - the PAS device is a hand-held breath-testing unit that gives an instant measure of your blood alcohol concentration, or

    ·         you fail to complete the PAS test;

  1. If the DA decides to file “Hit & Run” charges, along with your DUI charges, then this will naturally be used by the DA to enhance any DUI penalties. 

Generally speaking, enhanced penalties can range from community service, longer alcohol offender programs, higher fine amounts, up to and including, time in the County Jail, or in certain circumstances, time in State Prison.  

Since everyone's DUI incident is unique to that individual and the specific circumstances, you should consult with a competent defense attorney to determine your best course of action.  Felicia Yates has been practicing law for over 30 years in California and can be reached at (760) 326-5297, and found at Law Offices of Felicia Yates & Associates.

What Commercial Drivers (CDL holders) need to know about Negligent Operator Points (aka "Points") in the State of California...

by Attorney Felicia Woods-Yates on 02/02/15

What Commercial Drivers (CDL holders) need to know about Negligent Operator Points (aka "Points") in the State of California...

Negligent Operator Points can result from violations of the California Vehicle Code, as well as violations of city or county ordinances, OR any other code which relates to the safe operation of a motor vehicle.  The California DMV does have the authority to either suspend or revoke a California driver’s license, if an individual incurs too many points within a specified period of time.  As a result of the Interstate Driver's License Compact, the California DMV will also report convictions of violations incurred by out of state licensees to their home state.  That particular state motor vehicle division may convert or assign “points” based upon that state’s criteria, and take any necessary action.  California Vehicle Code (CVC) section 12810.5(a) defines a Class C Negligent Operator as follows: 

  • 4 or more points in 12 months,
  • 6 points in 24 months, or
  • 8 points in 36 months.

Once points accumulate as outlined above, California would move to at least suspend a person’s driving privilege.  Commercial Class A or B drivers, without a special certificate, may be allowed 2 additional points, if they request and appear for a hearing in front of the California DMV.  However, per CVC section 12810.5(b), a violation which occurs while operating a commercial vehicle in California, carries 1.5 times the normal point count!  So, a typical commercial violation, such as CVC section 22406(a) – Speeding in a Commercial Vehicle, would carry 1.5 points; any subsequent violation, such as CVC section 21655(b) – Failure to Use Designated Lane, would result in a total of 3 points assigned by the California DMV.  Minor convictions (such as the foregoing) that occur while you are driving a commercial vehicle or as a holder of a CDL, are retained on your California driving record for three (3) years.  This is of course, in addition to any negative implications from an employer, insurance company, or the Department of Transportation, acting under the CSA 2010 regulations.  Convictions reported by other states are also added to the driving record of a California CDL holder, and may result in sanctions.  

Some additional things to consider for California CDL holders, are that the Commercial Motor Vehicle Safety Act of 1986 requires that they do the following:

  • Notify the Department of Motor Vehicles of any conviction which occurred in other states within 30 days of the conviction.
  • Notify their employer of any conviction within 30 days of the conviction using form Report of Traffic Conviction (DL 535).

Also, if applying for a job as a commercial driver, the California DMV requires that you must give your prospective employer a 10-year employment history of commercial driving.  As a result of the foregoing, CDL holders should always consider contacting an attorney anytime a traffic citation is issued to them in the State of California.

Since everyone's traffic incident is unique to that individual and the specific circumstances, you should consult with a competent defense attorney to determine your best course of action.  Felicia Yates has been practicing law for over 30 years in California and can be reached at (760) 326-5297, and found at Law Offices of Felicia Yates & Associates.




What is the difference between a DUI violation of California Vehicle Code (CVC) Section 23152(a) versus 23152(b)?

by Attorney Felicia Woods-Yates on 01/24/15

What is the difference between a DUI violation of California Vehicle Code (CVC) Section 23152(a) versus 23152(b)?

If a person is cited or arrested for a Misdemeanor DUI, they will typically face one OR both of the following charges: A violation of CVC section 23152(a), and CVC section 23152(b).  They are both considered DUI violations, but they require different approaches in the way they are defended against by your attorney.  By the way, CVC section 23152(a) also considers being under the influence of any drug (whether or not it is a prescription) as a violation of that code section.

Simply put, CVC section 23152(a) is the crime of being under the influence of any measurable amount of blood alcohol concentration (BAC), or any drug.  In contrast, CVC section 23152(b) is the crime of having a BAC of .08% or higher.  Both vehicle code sections require that the District Attorney (DA) prove you were operating a motor vehicle at the time you were suspected of being under the influence of alcohol. 

Under CVC section 23152(a), the DA has to prove that your mental or physical abilities were impaired to the point that you were no longer able to drive a vehicle under similar circumstances, with the same caution as a sober individual, who exercises reasonable and ordinary care.

Under CVC section 23152(b), the DA has to show beyond a reasonable doubt, that at the time you were driving, your BAC level was .08% or higher.  In contrast to CVC section 23152(a), the DA isn't concerned at all with whether or not you were impaired (i.e. - some people have a much higher tolerance level than others), the DA is only concerned with the chemical test results, period!!

Each code section requires a unique type of criminal defense strategy.  There are multiple ways to attack each charge.  For example, under CVC section 23152(b), just because the test results reflect a BAC of .08% or higher, some of your defenses may include the following:

1) If your test was conducted an hour or two hours after you were initially stopped, you may benefit from the defense of a "rising blood alcohol level";

2) The chemical testing device itself may not have been properly functioning;

3) The testing device operator may not have been adequately trained, and may have made errors in the way he or she administered the test; and

4) A forensic chemist can analyze a blood or breath sample provided to your defense attorney to determine if your BAC measurements were correctly calculated or converted by the laboratory who analyzed the results. 

Since everyone's DUI incident is unique to that individual and the specific circumstances, you should consult with a competent defense attorney to determine your best course of action.  Felicia Yates has been practicing law for over 30 years in California and can be reached at (760) 326-5297, and found at Law Offices of Felicia Yates & Associates.

What Commercial Driver Licensees (CDL holders) need to know about Traffic Violator School in California.

by Attorney Felicia Woods-Yates on 01/17/15

What Commercial Driver Licensees (CDL holders) need to know about Traffic Violator School in the State of California…

Are Commercial Driver Licensees (CDL holders) eligible for Traffic Violator School (TVS) in California?  Yes, but only under specific circumstances.

  • As of January 1, 2011, you may attend TVS if the violation occurred while driving a non-commercial vehicle, AND you have a valid commercial Class A, Class B, or Class C license, issued by the State of California.  This means that if you were operating a commercial vehicle at the time you received your traffic citation, OR you were holding an out-of-state CDL, you are not eligible to attend TVS in California under any circumstances.  In addition, you will not be eligible to attend TVS if the violation involves, for example, an Equipment offense, a Non-moving offense (such as a parking offenses), a Misdemeanor, an Offense with a Mandatory Court Appearance (i.e. Hazardous Materials; Littering; Speeding in Excess of 100 MPH), any Alcohol-related offenses, or if your cited speed exceeds more than 25 miles per hour above the posted speed limit.  If you previously attended TVS, it must be more than 18 months since your last citation was issued for which you attended a TVS program.  The 18 months is calculated from the issuance date of the previous citation for which you attended traffic school, to the issuance date of your current citation.

If an eligible CDL holder completes TVS, will he/she avoid Negligent Operator Points on their DMV record ?  Generally speaking, Yes. 

If a CDL holder completes a TVS program, will the eligible offense remain confidential, and not be disclosed to insurance companies, etc.?  Generally speaking, No. 

  • Effective January 1, 2013, an eligible CDL holder who completes a TVS program will avoid a Negligent Operator Point, BUT his/her record will not be confidential, and shall be disclosed, for purposes of Title 49 of the Code of Federal Regulations, and to insurers by the DMV for insurance underwriting and rating purposes.  Therefore, motor carriers and insurance companies alike, will eventually become aware of a violation, regardless of whether or not you complete a Traffic Violator Program. 

A Superior Court judge has the discretion to order attendance at a TVS program as permitted under California Vehicle Code sections 41501(a) or 42005, or for any other purpose permitted by law.  A traffic defendant who is eligible for TVS will NOT forfeit eligibility by contesting a traffic citation and entering a plea of Not Guilty, or by exercising his or her Constitutional right to a Court Trial.

Since everyone's traffic incident is unique to that individual and the specific circumstances, you should consult with a competent defense attorney to determine your best course of action.  Felicia Yates has been practicing law for over 30 years in California and can be reached at (760) 326-5297, and found at Law Offices of Felicia Yates & Associates.

What should you be aware of regarding the California DMV Administrative Per Se process, immediately after being arrested or cited for a DUI violation?

by Attorney Felicia Woods-Yates on 01/13/15

What should you be aware of regarding the California DMV Administrative Per Se process, immediately after being arrested or cited for a DUI violation?

When a person first gets cited or arrested for a DUI, the law enforcement officer(s) will issue an Order of Suspension and Temporary License (a pink piece of paper with instructions).  This will serve as a temporary license, good for 30 days from the date of your DUI incident.  However, you must take action right away to be sure the California DMV (CA DMV) is notified of your intent to have an administrative hearing on the pending license suspension.  

Also known as the "Admin Per Se" proceeding, an individual cited or arrested for a DUI or DWI must take action within ten (10) calendar days (which includes weekends and holidays) of receiving their citation by contacting the CA DMV by telephone and scheduling an Admin Per Se hearing.  It will normally be set for thirty (30) to sixty (60) days from the time of your request.  Failure to make a timely request, will result in an automatic suspension of your driving privilege, and a forfeiture of your right to a DMV hearing!  

  • If you are 21 years of age or older, did not refuse a chemical test, the results showed a Blood Alcohol Content (BAC) of at least 0.08%, and this is your First Offense, your license would be automatically suspended for a period of Four (4) Months.
  • If you are under 21 years of age, did not refuse a preliminary alcohol screening (PAS) test, the results showed a BAC of at least 0.01%, and this is your First Offense, your license would be automatically suspended for a period of One (1) Year.

This legal process is completely separate and apart from any DUI charges you may be facing in the Superior Court, and is governed by its own rules and regulations.  If you are an out-of-state licensee, it is very important to realize that because of the Interstate Driver's License Compact, DUI and DWI arrest information is shared between most states in this country. 

The Admin Per Se hearing will give you and your defense attorney an opportunity to prove to the DMV that a license suspension is not justified.  This can be accomplished by successfully contesting any of the following elements:  (1) the Probable Cause or Reasonable Suspicion for the traffic stop,  (2) the Lawfulness of the Arrest, or  (3) whether or not you had a BAC (Blood Alcohol Concentration) of 0.08% or higher, at the time you were driving.  The hearing is normally conducted via telephone by a DMV Hearing Officer, and is tape recorded.

There are a multitude of defenses that might be presented by your attorney to rebut the elements listed above.  You are also allowed to present legal arguments in writing (i.e. case law or statutory authority) prior to your DMV hearing, present witnesses on your behalf, and even subpoena the citing law enforcement officer.  By the way, the CA DMV has the Burden of Proof (based upon a Preponderance of the Evidence) at an Admin Per Se hearing.

Since everyone's DUI incident is unique to that individual and the specific circumstances, you should consult with a competent defense attorney to determine your best course of action.  Felicia Yates has been practicing law for over 30 years in California and can be reached at (760) 326-5297, and found at Law Offices of Felicia Yates & Associates.


LEGAL DISCLAIMER

The information presented on this website should not be construed as legal advice as it is presented as information only.  Nor does viewing the information contained on this website form an attorney-client relationship.  There is no substitute for consulting with an attorney regarding the specific facts of a legal matter.  Please note that substantive law and procedure discussed on this website may have changed as a result of legislation, judicial interpretations or changes in administrative policies or procedures.

Note:  This website is not intended to offer services to clients for any matter outside the jurisdiction of the State of California.