Asked over 3 years ago - Huntington Beach, CAFlag
Pulled over for coming to a complete stop at a stop sign partially in the crosswalk. Was put through the field sobriety test and passed. Blew a .06 BAC, was given a ticket with the traffic infraction and a notice of Probation Violation (convicted of a first DUI in 2005). Police officer took driver's license and provided a temporary license good for 30 days. Car was parked on the street by officer and took a cab ride home. In possession of the vehicle and was not charged with a second DUI at the time of the incident. What happens now? Given CA's new "Zero Tolerance Policy" does the driver's license get suspended despite passing the field sobriety test and being under the legal BAC limit? What would be the fine, suspension, jail time? Can and will they deem this a second DUI?
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To take your questions slightly out of order...
Can and will they deem this a second DUI? They may try, but given your blood alcohol level, it's unlikely. There are the two different charges for DUI - 23152(a) which makes it unlawful to drive under the influence at any blood alcohol level and 23152(b) which makes it illegal to drive with 0.08% blood alcohol or higher.
Obviously, 23152(b) doesn't come into play for you, so the question is - will the Orange County DA think they can prove a DUI under 23152(a) against you? A person *can* be under the influence at any blood alcohol level if they are impaired to the point they're unable to operate their car the same way a sober person could. If the extent of your driving issue was a failure to stop behind the limit line (something that many people do every day without alcohol involved), and your field sobriety tests were reasonable, then the odds of you getting a new, second DUI are very slim.
Regarding your question about probation violation - my first question would be: are you sure you were actually on probation for DUI at the time? There can be 5 year probation terms, but the more common length of probation is 3 years. It may be that your probation ended in 2008 and you will not face a violation of probation. Let's assume that you were on probation though. Yes, you will likely face a violation of probation because of the alcohol under the "zero tolerance" laws. The court can impose jail time and/or additional punishment if you are found in violation. In addition, you face a potential 1 year suspension of your driver's license by the DMV.
It is highly unlikely that you'd be charged with a DUI, given the lack of a citation or arrest for that offense.
You could receive a jail sentence if you're charged with a probation violation, but realize that the DMV does not have the authority to do this. This would be a court proceeding.
Depending on a variety of factors, a one-year suspension is a possibility.
My advice is to contact a local attorney and be sure to request a DMV hearing within the 10-day period.
Good luck to you,
If the officer took your license it sounds like you may have been charged with DUI. Do you have a date to appear on the ticket? What court? .06 may be the (A) count DUI. It is also a probation violation, you should fight it. Did you finish all the tems of your probation? When? After 3 years you should be off the probation for the first DUI.
Edward J. Blum
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