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While on DUI probation with the DMV, are you allowed to have under 0.01 BAC? Or are you not suppose to have a BAC over 0.00?

Los Angeles, CA |

I was recently cited for violating DUI probation and cited for 23154(a) vc. I blew a 0.015 and I was told by one attorney that the DMV only counts breathilizer BAC test results up to the hundredth decimal point, which technically makes my BAC count as 0.01% BAC. Am I allowed to have a BAC under 0.01% while I am on DUI probation with the DMV? If so, this means I am off by 0.001 and I will hire a specialist to contest this matter. I am technically not on DUI probation because I got my previous DUI case dismissed by the LA metro court before this incident happened and I have a 1203.4 Order For Dismissal Form. However, the DMV is being very difficult and is requiring an abstract from Metro Court to prove i am not on probation even though Metro court does not issue abstracts.

Attorney Answers 4

Posted

Proving to the DMV that your BAC was .009 rather than .01 is going to be an almost impossible task. Save your money. Additionally you don't seem to be aware that DMV administrative procedures are completely separate from criminal court procedures. It does not make any difference that you have a 1203.4 dismissal if you have violated the terms that were imposed on you by DMV. If you are trying to prove that you were no longer on probation then the .01 zero tolerance rule would not apply to you. Every court gives abstracts of judgment; you may want an attorney to help you with that task.

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Posted

While onDUI probation you are not allowed to have a measurable amount of alcohol in your system. Do not drink and drive with any alcohol period. Your issue is with the court and maybe the DMV if under 21.

Mr. Driessen is a former Deputy DA in Orange County with over 8 years of criminal law experience. Nothing stated on this site shall in anyway be construed as legal advice, or as creating any attorney client relationship. If you would like to hire Mr. Driessen, feel free to contact him at www.theocduiguy.com.

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Posted

I see this a little differently... all depending on your 1203.4. While I am surprised that the court did dismiss your case before the termination of the DUI natural probation, if your 1203.4 was returned to you signed by the Judge indicating that the case was dismissed then I like your chances. Yes a 1203.4 dismissal does not remove the conviction from the DMV's records, it's there forever, but your dismissal and more importantly the resulting termination of probation is relevant to your pending .01 case... DMV just rarely runs into it ! ...even possibly never before! I would call the DMV Mandatory Actions Unit at 916 657 6525 and hopefully find someone that can understand the situation. Also if you asked for a DMV APS .01 Probation Suspension Hearing you will at least be able to talk to someone in person... though it would be best to have an atty by then. Don't give up yet... they are after you on a technicality, a technicality that you did something while you were on Probation... you apparently were somehow able to have your probation terminated following proper court procedures. Your attorney may also find that discovery of the accuracy check records for the device show that it reads high... very common. Also the officer may not have complied with the operator's instruction manual. Don't give up. g

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Posted

If I'm understanding your facts it sounds like your probation has terminated, and now, have been cited for violating that probation. There can be no violation of probation, if probation has already been terminated.

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2 comments

George B. O'Neill

George B. O'Neill

Posted

While that would be true, I think his problem is with DMV APS driving .01 "While On Probation". Difficulty is in convincing DMV that he was not on probation at the time of driving. Good issue! Court signs the 1203.4 but doesn't correct the DMV "3 year probation" indicated on driver's record. I doubt that courts and DMV are set up to enter that type of modification of the DMV record! 1203.4 do not affect DUIs on the DMV record of course... but this is probation. It is a very rare situation in any event so they probably won't help him even though he's right.

Joshua Paul Shelton

Joshua Paul Shelton

Posted

Agreed. It is a peculiar situation likely to be difficult to resolve.

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