Happy New Year from Trujillo Law Offices!

The turning of the New Year inevitably means that some new laws will go into effect across the Golden State. We will be keeping our eyes on all of the new rules and statutes affecting criminal law practitioners. Here, I discuss the first of two new DUI-related laws in California. Both legislative actions indicate California’s tendency to increase penalties for DUI.

The first deals with driver licenses that have been suspended or revoked as a result of a lawful DUI arrest. California law (Veh. Code, § 13557) authorizes the Department of Motor Vehicles (DMV) to immediately suspend the driving privileges of anyone who it (the DMV) determines was driving with alcohol in his or her blood, as long as certain conditions are met. Previously, such suspension/revocation orders would be sustained on review if, by the “preponderance of the evidence,” one of three circumstances were met: (1) the person had 0.08% or more blood-alcohol content (BAC); (2) the person was under 21 and had 0.05% or more BAC; or (3) the person was under 21 and preliminary alcohol screening indicated a BAC of 0.01% or more. The change in the law will expand the number of categories for immediate suspension of driving privileges from three to five. Beginning January 1, 2011, a DMV suspension order will also be sustained if: (4) the person was driving a vehicle requiring a Commercial Driver’s License (CDL) and had a BAC of 0.04% or more; and (5) the person was on probation for certain DUI or drug offenses and had a BAC of 0.01% or more based on preliminary alcohol screening.

“Preponderance of the evidence” is a legal term that describes an evidentiary standard equivalent to 51% of the evidence. What this means is the DMV can suspend driving privileges based on evidence that would not necessarily meet the higher “beyond a reasonable doubt” standard required to prove a criminal conviction. That’s why it is important to request an Administrative Per Se (APS) hearing from a local DMV Driver Safety Office immediately (within 10 days of arrest) if you have been arrested for DUI. Of course, although suspension actions by DMV can ultimately be reviewed by the courts, the DMV acts as an independent government agency with authority to suspend your driver’s license. Thus, as authorized by law, DMV actions are purely “administrative” in nature. This is why the DMV can impose an immediate suspension/revocation order based on “a mere preponderance,” before a criminal proceeding or trial, and without court approval.

The takeaway is that, by expanding the scope of the law, this change makes it easier for DMV to take these actions. Stay tuned for part two about other changes to California DUI law.

Note: This article is not intended to be legal advice.   The specific facts of your case should be discussed with legal counsel.  Contact the Law Offices of Eloy I. Trujillo today to discuss your case with an experienced Bay Area DUI Lawyer.

Eloy I. Trujillo is a practicing attorney with offices in San Francisco, CA and Oakland, CA.

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