Over 21 License Suspension Actions should be set aside under present .01% probation violation legislation
Although the Legislature amended CVC 13353.2(a), operative January 1, 2009, to include CVC A? 23154 violators, it neglected to amend CVC 13557(b)(2)( A) and (B) to include CVC A? 23154.
bench, .01% or higher BAC actions in CVC A? 23154 cases should be set aside in all contested cases DMV if the person is over 21 years of age.
For those probationers who refuse the roadside testing:
The Legislature neglected to amend CVC A? 13353.1(d)(1) to include CVC A? 23154 violations. Hence, in order to uphold a one, two, or three year suspension based on a refusal to submit to testing under CVC A? 23154, the DMV must prove the probationer violated CVC 23136 (cop had reasonable cause to believe person was under 21 and driving with a .01 or higher).
Again, unless the Legislature amends th
DMV has proof problems under the statutes. The elements of the probation violation must fail under present law.
Again, unless the Legislature amends this statute or the courts legislate from the bench, contested refusal actions in CVC A? 23154 cases should be set aside in all DMV contested cases where the person is over 21 years of age. After all, CVC 13558(c)(1) specifically states that the only issues for APS refusal hearings are set forth in CVC 13557(b)(1), which requires proof that the cop had reasonable cause to believe there was a violation of either 23136, 23140, 23152, or 23153 (23154 is not listed!).
If the Legislature had properly drafted the laws, the elements for a violation of 23154 would be:
1. the person was, at the time of driving, on probation for a violation of Section 23152 or 23153,
2. the person had consumed an alcoholic beverage,
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.
Additional resources provided by the author
Even if convicted, no points are assessed on one's DMV record.
This new law ignores the main point: NO ROADSIDE/PRELIMINARY BREATH TEST IS "ALCOHOL SPECIFIC."
Simply show at the hearing other junk (soy sauce, white bread, etc.) falsely tests positive as "alcohol." http://www.sandiegodrunkdrivingattorney.net/Things-other-than-alcohol.html