In light of the strange nature of San Diego DUI / DMV hearings & absence of an independent San Diego DUI judge to offer protection, do not do yourself

In light of the strange nature of San Diego DUI / DMV hearings and the absence of an independent San Diego DUI judge to offer some protection, you are strongly advised not to try to represent yourself. Because these are not San Diego DUI criminal proceedings, San Diego County public defenders are unavailable.



Your San Diego DUI / DMV attorney has just 10 CALENDAR DAYS after the DUI arrest to call the San Diego DMV Driver Safety Office to timely demand a hearing. You waive your right to a hearing after the 10 day deadline is up. The San Diego DMV may not be able to schedule a hearing before your 30-day temporary license expires. Your San Diego DUI / DMV lawyer will request a Notice of Stay of the 30-day temporary license until a San Diego DMV hearing is provided and a San Diego DMV decision is actually rendered.

A San Diego DUI / DMV hearing is controlled by a Driver Safety Officer (DMV hearing officer) rather than a real judge, an employee of the DMV not trained in law who acts as both prosecutor and judge. As unfair as it is, she or he can legally object to your evidence, rule on her or his own objection, dually engage your San Diego DUI / DMV lawyer, and admit or not admit either party's evidence.



The San Diego Driver Safety Office is located at 9174 Sky Park Avenue, Suite 200, San Diego (858/627-3901 or fax 858/627-3925).

The San Diego Driver Safety Officer offers evidence in the form of documents and/or witnesses. The Driver Safety Officer offers the San Diego drunk driving / DUI police report, DMV records, San Diego DUI alcohol reports and the important San Diego DUI officer's sworn statement entitled a "DS 367." With no Fifth Amendment right at the hearing, your San Diego DUI / DMV attorney usually will not want you to be present at the hearing since the Driver Safety Officer can call you as a witness and force you to testify against yourself if you ill-advisedly appear.


A San Diego DUI lawyer's defenses at an APS hearing are specialized and technical, more so than in criminal court. Frequent San Diego DUI / DMV proof problems - as well as legal, procedural and bureaucratic obstacles - are possible grounds for winning.

The San Diego DMV Driver Safety Officer's decision will usually be mailed a few days or even weeks after the hearing. A San Diego DMV / DMV suspension can be set aside or sustained. If the San Diego DMV suspension is sustained, the decision can be appealed to the DMV in Sacramento and/or to the San Diego Superior court by filing a San Diego DMV petition for writ of mandamus.

San Diego County Sheriff's Department's Friday Night California DUI Checkpoint in Poway - 9/3/10 at 13200 Espola Rd. 7 pm to 2:30 am

San Diego DUI attorneys just learned that on Friday night, 9-3-10, between the hours of 7:00 PM and 2:30 AM, deputies from San Diego Sheriff’s Department, Poway Station will be conducting a San Diego DUI sobriety and drunk driving checkpoint in the 13200 block of Espola Road.

The San Diego DUI checkpoint will be staffed by approximately 15 San Diego DUI / Drunk Driving trained deputies.

The purpose of the San Diego DUI checkpoint is to remove impaired and/or unsafe drivers from the roadway and educate the motoring public; allegedly increasing the safety of all drivers but certainly annoying the locals.

This San Diego DUI operation will be in conjunction with other DUI operations being conducted in other local jurisdictions, according to drunk driving lawyers in San Diego.

For regular San Diego Attorney Blog and Southern California DUI Checkpoint information, visit this special site.

San Diego DUI attorneys learned today that California Highway Patrol officers are getting ready for a real gung-ho maximum California DUI enforcement

August 30, 2010 San Diego DUI Lawyer NewsFlash

San Diego DUI attorneys learned today that California Highway Patrol officers are getting ready for a real gung-ho maximum California DUI & Drunk Driving enforcement period for the 2010 summer.

Starting September 3rd at dark, California DUI & Drunk Driving officers will fish for California DUI & Drunk Driving motorists on California's roads for the Labor Day weekend.

While accident deaths were reduced than previous Labor Day weekends, last year 12 people were killed in crashes on California roadways.

Bucking for promotions and the annual MADD most DUI arrests award, CHP is in the midst of a California DUI & Drunk Driving aggressive crackdown on impaired driving.

Labor Day weekend 2009, CHP officers throughout the state made 1,417 arrests for California DUI & Drunk Driving.

Director of San Diego Police Crime Laboratory comments on investigation into another state laboratory's problems

San Diego DUI criminal defense attorneys have heard that another state's inspectors missed all faults.

"Am I surprised we didn't see a problem? Not really," said Michael Grubb, chairman of ASCLD-LAB and director of the San Diego Police Crime Lab. "Every case they work is not examined. It's a relatively small number."

Outsiders invited to review the work of the North Carolina State Bureau of Investigation's lab for the past 20 years missed all the faults revealed this month.

ASCLD-LAB, a group led by former SBI agents and based in Johnston County, is the leading accreditation agency for crime labs nationwide. But it reviews cases selected by supervisors in the agency being audited, and it does that only every five years.

The SBI's certification through ASCLD-LAB is a signal to the world that the crime lab's work is sound. Leaders wear it as a badge of honor, often citing ASCLD-LAB's seal of approval as proof of good work. The significance of that accreditation is now in question.

"There's this idea that ASCLD-LAB is infallible and the oracle of all accreditation," said Chris Swecker, a former FBI assistant director who conducted the blood analysis audit. "It was surprising to me that they didn't get a better sense of what was going on in the lab all those years."

The SBI laboratory's work has come under fire this summer, shattering any notion that its work is unblemished. The News & Observer reported this month that analysts have bent rules and pushed past the bounds of accepted science to deliver reports that bolstered prosecutors' cases. Last week, Attorney General Roy Cooper, who supervises the SBI, released the audit of the blood analysis unit, which revealed that eight analysts over 16 years failed to report the results of more sophisticated tests that had undermined their initial findings.

Auditors found 230 cases tainted by a practice sanctioned by policy and leadership.

ASCLD-LAB is headed by two former SBI agents. Ralph Keaton and John Neuner say they recuse themselves from all SBI matters.

Swecker, in his audit, called the supervision at the lab's blood analysis unit between 1987 and 2003 "ineffective" and lacking in "oversight." Part of the oversight at that time would have been provided by Keaton and Neuner.

Keaton was No. 2 at the SBI crime lab until 1995. Neuner held the same post before leaving in 2001. Michael Creasy, a third former SBI agent, joined ASCLD-LAB after Neuner.

ASCLD-LAB was formed in the 1980s as forensic crime lab directors tried to organize and adopt basic standards "before someone else set them for us," Keaton said earlier this summer. Keaton was North Carolina's point person in those talks.

The first wave of forensic labs was accredited in the late 1980s; today, 364 forensic crime labs in the U.S. are accredited through ASCLD-LAB, making it by far the largest accrediting agency in forensic science.

Through five separate accreditation reviews, auditors sent to North Carolina by ASCLD-LAB found nothing like the picture revealed in recent independent audits and news reports.

Earlier this summer, Keaton spoke with confidence about the SBI's quality of work, dismissing questions about problems illuminated in February when SBI analyst Duane Deaver was criticized for withholding critical blood evidence. In that case, Greg Taylor, a Wake County man, spent 17 years in prison for a crime he did not commit, in part because Deaver withheld results of blood tests that were favorable to Taylor.

"I don't think there are a large number of cases in which there's been a miscarriage of justice," Keaton said. "Absence of evidence is not evidence of innocence."

Every five years, a team of forensic scientists from crime labs in other states come to the SBI lab to inspect its work. They study policy manuals, double check first-aid kits and review the layout of the lab. They check each criterion they meet and note shortcomings they expect to be fixed.

For each unit, inspectors examine five cases for each analyst. They allow lab supervisors to select the cases.

"They can cherry pick," said Randall Robbins, a retired lab official from the Illinois Police crime lab who performed audits for ASCLD-LAB. "They also can sanitize the files. Any lab across the country can dress it up and make it look as pretty as it wants."

Robbins, who now lives in Johnston County, said he asked for additional cases to review for his inspections but said not all auditors do that.

Grubb, ASCLD-LAB chairman, said pulling cases at random is more time-consuming.

Because audits are conducted by peers in the forensic community, some fear that there's an expectation to be gentle or pay for it when your lab is examined.

"There's congeniality in this profession and perhaps a reluctance to do a hard audit," said Swecker, the former FBI assistant director.

ASCLD-LAB is often reluctant to be the heavy. Grubb, chairman of the group, said it wants every lab to achieve accreditation and works hard to help them get there. Rarely do they yank certification.

Diane Savage, a Chapel Hill lawyer, filed complaints with ASCLD-LAB about three SBI cases. While ASCLD-LAB officials acknowledged receipt of her complaints, she was never informed of any resolution. Savage said she now doesn't bother.

"Over the years, I've concluded that they are hopeless and won't fix the problem but will just finesse," Savage said. "I don't have any faith or hope."

ASCLD-LAB fields complaints from citizens - often lawyers or other scientists - about poor work by member labs. It initiates investigations but keeps them confidential.

San Diego DUI criminal defense attorneys & California drunk driving lawyers state the Breath & Blood Testing Rules & Regulations

San Diego DUI criminal defense attorneys & California drunk driving lawyers want to play by the Breath & Blood Testing Rules & Regulations:

Title 17 California Code of Regulations

s 1215. Authority.
Chapter 5 Sections 436.50-436.63 of Part 1 of Division 1 of the Health and Safety Code.
Note: Authority cited: Sections 102 and 208, Health and Safety Code.
s 1215.1. Definitions.
(a) "Alcohol" means the unique chemical compound, ethyl alcohol, with the exception that
reference in these regulations to compounds to be avoided as skin antiseptics includes the generic
class of organic compounds known as alcohols.
(b) "Forensic Alcohol Analysis" means the practical application of specialized devices,
instruments, and methods by trained laboratory personnel to measure the concentration of ethyl
alcohol in samples of blood, breath, urine, or tissue of persons involved in traffic accidents or
traffic violations.
(c) "Breath Alcohol Analysis" means analysis of a sample of a person's expired breath, using a
breath testing instrument designed for this purpose, in order to determine the concentration of
ethyl alcohol in the person's blood.
(d) "Concentration" means the weight amount of alcohol contained in a unit volume of liquid or
a unit volume of gas under specified conditions of temperature and pressure; in the case of a
solid tissue specimen, "concentration" means the weight amount of alcohol contained in a unit
weight of specimen.
(e) "Forensic Alcohol Laboratory" means a place at which specialized apparatus, instruments,
and methods are used by trained laboratory personnel to measure the concentration of alcohol in
samples of blood, breath, urine, or tissue of persons involved in traffic accidents or in traffic
violations; this may be an activity of a laboratory engaged in activities other than alcohol
analysis.
(f) "Forensic Alcohol Supervisor" means a person employed by a forensic alcohol laboratory
who can be responsible for all aspects of the performance of forensic alcohol analysis and for the
supervision of personnel who perform such analysis.
(g) "Forensic Alcohol Analyst" means a person employed by a forensic alcohol laboratory who
performs the technical procedures of forensic alcohol analysis.
(h) "Forensic Alcohol Analyst Trainee" means a person employed by a forensic alcohol
laboratory for the purpose of receiving comprehensive practical experience and instruction in the
technical procedures of forensic alcohol analysis under the supervision of a forensic alcohol
supervisor or forensic alcohol analyst.
(i) "Method" means the steps used by a trained person to make a measurement of alcohol
concentration.
(j) "Instrument" or "Device" means any item or combination of items of equipment used to make
a measurement of alcohol concentration; simple and complex devices are included in this
meaning.
(k) "License" means a document issued by the State Department of Health to a laboratory to
perform the tests referred to in the Health and Safety Code, Sections 436.51 and 436.52.
(l) "Sample" or "Specimen" means a representative portion of breath, blood, urine, or tissue or of
an artificially constituted material, taken for the purpose of measuring its alcohol concentration.
(m) "Alveolar" refers to the smallest air sacs in the lungs and to that portion of the expired breath
which is in equilibrium with respect to alcohol with the immediately adjacent pulmonary blood.
(n) "Department" means the California State Department of Health and its duly authorized
representatives.
s 1216. Authorization Requirement.
(a) Every laboratory performing forensic alcohol analysis shall have a valid license issued in
accordance with the provisions of these regulations.
(1) Forensic alcohol analysis shall be performed only by persons who meet the qualifications set
forth in these regulations for forensic alcohol supervisors, forensic alcohol analysts, or forensic
alcohol analyst trainees.
(A) A trainee may perform forensic alcohol analysis only under the supervision of a forensic
alcohol supervisor or forensic alcohol analyst.
(2) The Department shall not be limited by these regulations in performing functions in
administration of the alcohol analysis and licensing program.
s 1216.1. Qualifications for Licensing.
(a) A laboratory meets the qualifications for licensing by:
(1) Employing at least one forensic alcohol supervisor. If forensic alcohol analysis is performed
by persons other than forensic alcohol supervisors, such persons shall meet the qualifications set
forth in these regulations for forensic alcohol analysts or forensic alcohol analyst trainees;
(2) Maintaining a quality control program in forensic alcohol analysis procedures;
(3) Demonstrating satisfactory performance in a proficiency testing program conducted by or
approved by the Department;
(4) Passing such on-site inspections as the Department may require;
(5) Showing ability to meet the requirements set forth in these regulations.
(b) These qualifications shall be maintained at all times by each licensed laboratory.
(c) The Department may deny a license or renewal thereof, or take disciplinary action against a
licensee, for failure to maintain these qualifications in a manner which meets the Department's
standards for approval.
(d) Whenever a licensed laboratory employing only one forensic alcohol supervisor loses that
person, the Department may upon petition of the laboratory extend the license for a period not
exceeding 90 days during which time the laboratory shall hire another forensic alcohol
supervisor.
(1) Such an extension shall be contingent on the laboratory's having in its employ at least one
forensic alcohol analyst and upon the laboratory's successfully demonstrating to the Department
continued competence in forensic alcohol analysis through such proficiency tests, examinations,
and on-site inspections as the Department may require.
(e) A forensic alcohol supervisor is a person who meets the following qualifications:
(1) Possesses a baccalaureate or higher degree, or an equivalent, in chemistry, biochemistry, or
other appropriate discipline as determined by the Department;
(2) Has two years of experience in performing forensic alcohol analysis, such experience to
include experience in interpretation and correlation of alcohol analyses with subjective
observations of the demeanor and behavior of persons who have ingested known amounts of
ethyl alcohol; or, in lieu of such two years of experience, satisfactorily completes a training
course approved by the Department, such training course to include at minimum the following
schedule of subjects:
(A) Value and purpose of forensic alcohol analysis, including breath alcohol analysis;
(B) Physiological action of alcohol;
(C) Pharmacology and toxicology of alcohol;
(D) Laboratory methods of alcohol analysis;
(E) Instruments and procedures for breath alcohol analysis;
(F) Practical laboratory demonstration of the student's ability to perform alcohol analysis;
(G) Interpretation of results of alcohol analysis, including correlation of alcohol analyses with
subjective observations of the demeanor and behavior of persons who have ingested known
amounts of alcohol;
(H) Court testimony;
(I) Court decisions regarding chemical tests of alcohol to determine alcohol influence; and
(J) Requirements of these regulations;
(3) Successfully demonstrates accuracy in the analysis of proficiency test samples submitted by
the Department, and successfully passes examinations prescribed by the Department;
(4) Demonstrates the ability to adhere to the provisions of these regulations; or (in lieu of (1) and
(2) above)
(5) Either is a person who, prior to January 1, 1971, qualified as director of a clinical laboratory
operating under the provisions of the California Business and Professions Code, or is a person
who, for a period of one year prior to January 1, 1971, has been employed in the activities of a
forensic alcohol supervisor.
(f) A forensic alcohol analyst is a person who meets the following qualifications:
(1) Successfully completes at least 60 semester-hours, or their equivalent in quarter-hours, of
college level courses, including 8 hours of general chemistry and 3 hours of quantitative
analysis;
(2) Successfully completes a training period in alcohol analysis on forensic or clinical specimens
in a forensic alcohol laboratory or in a clinical laboratory;
(3) Performs during the training period a minimum of 25 analyses of alcohol concentration in
blood samples, at least half of which contain alcohol;
(4) Successfully demonstrates accuracy in the analysis of proficiency test samples submitted by
the Department, and successfully passes examinations prescribed by the Department;
(5) Demonstrates ability to adhere to the provisions of these regulations; or (in lieu of (1), (2),
and (3) above)
(6) Either is a person who, prior to January 1, 1971, was a clinical laboratory technologist
licensed under the provisions of the California Business and Professions Code, or is a person
who, for a period of one year prior to January 1, 1971, has been employed in the activities of a
forensic alcohol analyst.
(g) A forensic alcohol analyst trainee is a person who meets the following qualifications:
(1) Meets the educational qualification set forth as (1) for a forensic alcohol analyst;
(2) Is employed by a licensed forensic alcohol laboratory.
s 1217. Forensic Alcohol Laboratory License.
(a) Upon receipt of a completed application which shows ability to meet the requirements set
forth in these regulations, and upon payment of any required fee, the Department shall submit
such proficiency test samples and perform such examinations as are required for that laboratory
to complete the qualifications.
(b) Upon the laboratory's successfully completing all the qualifications, the Department shall
issue to the applicant laboratory a forensic alcohol laboratory license.
s 1217.1. Renewal of Licenses.
(a) Licenses under these regulations shall be renewed as required by the Department as long as
the activity requiring authorization continues. Renewal shall be contingent upon the laboratory
continuing in the qualifications set forth in these regulations.
(1) A forensic alcohol laboratory license shall be valid from January 1 to December 31 of a
calendar year. Applications for renewal and applicable fees shall be submitted to the Department
on or before October 1 of each year.
(2) Failure to apply for renewal shall result in forfeiture after a period of three months from the
day on which the application for renewal should have been submitted, with the exception that the
Department may grant a temporary extension under special circumstances.
(3) An application for renewal shall not list as a forensic alcohol analyst trainee any person who
fails to comply with the requirements of Section 1216.1 (f) (4) within a period of one year after
he was first listed with the Department as a trainee. The Department may extend this period for a
justifiable reason, such as illness.
s 1217.2. Application Forms.
Application for a license and renewal thereof, shall be made on forms furnished by the
Department. The applicant shall set forth all pertinent information called for by the form.
s 1217.3. Report of Change or Discontinuance.
(a) A person responsible for the operation of a forensic alcohol laboratory shall report to the
Department in writing within 30 days any change in qualified personnel who may be performing
forensic alcohol analysis, change of ownership, change of address or change or discontinuance of
an activity authorized under these regulations.
(b) Such reports shall be made on forms furnished by the Department and shall set forth all
pertinent information called for by the form.
(c) Persons who formerly qualified as forensic alcohol supervisors or forensic alcohol analysts in
another laboratory may be required to demonstrate again their ability to meet the requirement of
Section 1216.1 (e) (3) or 1216.1 (f) (4) using the method, apparatus and facilities of the forensic
alcohol laboratory which newly lists them in such a Report of Change or Discontinuance.
s 1217.4. License Implications.
Licenses issued under these regulations shall not imply approval of anything carried out by a
laboratory other than what is specified on the document.
s 1217.5. Licensing Records.
Forensic Alcohol Laboratory Licenses shall become part of permanent records available to the
courts for legal proceedings or to the Department.
s 1217.6. Inspection and Additional Requirements.
(a) Display of Licenses. Licenses issued under these regulations shall be displayed on request to
representatives of the Department.
(b) Access to Premises. The Department may enter at all reasonable times upon any laboratory
for the purpose of determining whether or not there is compliance with the provisions of these
regulations.
s 1217.7. Surveys and Proficiency Tests.
(a) Laboratories having been licensed or applying for licensing as forensic alcohol laboratories
shall be subject to on-site surveys by representatives of the Department, the results of which
must meet the requirements of these regulations, and shall accept periodic evaluation samples,
perform analyses and report the results of such analyses to the Department.
(b) These analytical results shall be used by the Department to evaluate the accuracy of the
forensic alcohol analyses performed by the laboratory, and the results must meet the
requirements of these regulations.
s 1217.8. Fees and Other Procedures.
The annual application fee for a Forensic Alcohol Laboratory License or its renewal shall be one
hundred dollars ($100). A laboratory operated by the state, city or county or other public
organization shall be exempt from the annual application fee requirement. Other procedures in
the administration of these regulations shall be carried out as set forth in Chapter 5 (commencing
with section 436.50) of Part 1 of Division 1 of the Health and Safety Code. Such other
procedures include suspension or revocation of license, denial of license, and disciplinary action.
s 1218. Training Program Approval.
Any organization, laboratory, institution, school, or college conducting a course of instruction for
persons to qualify under these regulations shall submit a course summary and list of instructors
and their qualifications to the Department for approval.
s 1218.1. Additional Requirements.
At the discretion of the Department, any phase or portion of a training program shall be subject
to alteration in an effort to update the program as technological advances are made or if a portion
has been judged inappropriate.
s 1218.2. Contracts.
The Department may contract with persons it deems qualified to administer such practical tests
and written or oral examinations as may be required under these regulations. This section shall
not be construed to authorize the delegation of any discretionary functions conferred on the
Department by law, including, but not limited to, the evaluation of tests and examinations.
s 1219. General.
Samples taken for forensic alcohol analysis and breath alcohol analysis shall be collected and
handled in a manner approved by the Department. The identity and integrity of the samples shall
be maintained through collection to analysis and reporting.
s 1219.1. Blood Collection and Retention.
(a) Blood samples shall be collected by venipuncture from living individuals as soon as feasible
after an alleged offense and only by persons authorized by Section 13354 of the Vehicle Code.
(b) Sufficient blood shall be collected to permit duplicate determinations.
(c) Alcohol or other volatile organic disinfectant shall not be used to clean the skin where a
specimen is to be collected. Aqueous benzalkonium chloride (zephiran), aqueous merthiolate or
other suitable aqueous disinfectant shall be used.
(d) Blood samples shall be collected using sterile, dry hypodermic needles and syringes, or using
clean, dry vacuum type containers with sterile needles. Reusable equipment,if used, shall not be
cleaned or kept in alcohol or other volatile organic solvent.
(e) The blood sample shall be deposited into a clean, dry container which is closed with an inert
stopper.
(1) Alcohol or other volatile organic solvent shall not be used to clean the container.
(2) The blood shall be mixed with an anticoagulant and a preservative.
(f) When blood samples for forensic alcohol analysis are collected post-mortem, all practical
precautions to insure an uncontaminated sample shall be employed, such as:
(1) Samples shall be obtained prior to the start of any embalming procedure. Blood samples shall
not be collected from the circulatory system effluent during arterial injection of embalming fluid.
Coroner's samples do not need a preservative added if stored under refrigeration.
(2) Care shall be taken to avoid contamination by alcohol from the gastrointestinal tract directly
or by diffusion therefrom. The sample shall be taken from a major vein or the heart.
(g) In order to allow for analysis by the defendant, the remaining portion of the sample shall be
retained for one year after the date of collection.
(1) In coroner's cases, blood samples shall be retained for at least 90 days after date of collection.
(2)Whenever a sample is requested by the defendant for analysis and a sufficient sample
remains, the forensic alcohol laboratory or law enforcement agency in possession of the original
sample shall continue such possession, but shall provide the defendant with a portion of the
remaining sample in a clean container together with a copy or transcript of the identifying
information carried on the original sample container.
s 1219.2. Urine Collection and Retention.
(a) The only approved urine sample shall be a sample collected no sooner than twenty minutes
after first voiding the bladder.
(b) The specimen shall be deposited in a clean, dry container which also contains a preservative.
(c) In order to allow for analysis by the defendant, the remaining portion of the sample shall be
retained for one year after the date of collection.
(1) Whenever a sample is requested by the defendant for analysis and a sufficient sample
remains, the forensic alcohol laboratory or law enforcement agency in possession of the original
sample shall continue such possession, but shall provide the defendant with a portion of the
remaining sample in a clean container together with a copy or transcript of the identifying
information carried by the original sample container.
s 1219.3. Breath Collection.
A breath sample shall be expired breath which is essentially alveolar in composition. The
quantity of the breath sample shall be established by direct volumetric measurement. The breath
sample shall be collected only after the subject has been under continuous observation for at least
fifteen minutes prior to collection of the breath sample, during which time the subject must not
have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten, or smoked.
s 1220. General.
(a) All laboratory methods used for forensic alcohol analysis shall be subject to standards set
forth in this Article.
(b) Each licensed forensic alcohol laboratory shall have on file with the Department detailed, upto-
date written descriptions of each method it uses for forensic alcohol analysis.
(1) Such descriptions shall be immediately available to the person performing an analysis and
shall be available for inspection by the Department on request.
(2) Each such description shall include the calibration procedures and the quality control
program for the method.
s 1220.1. Standards of Performance.
(a) Methods for forensic alcohol analysis shall meet the following standards of performance:
(1) The method shall be capable of the analysis of a reference sample of known alcohol
concentration within accuracy and precision limits of plus or minus 5 percent of the value; these
limits shall be applied to alcohol concentrations which are 0.10 grams per 100 milliliters or
higher;
(2) The method shall be capable of the analysis of ethyl alcohol with a specificity which is
adequate and appropriate for traffic law enforcement.
(3) The method should be free from interference from anticoagulants and preservatives added to
the sample;
(4) Blood alcohol results on post-mortem samples shall not be reported unless the oxidizable
substance is identified as ethyl alcohol by qualitative test;
(5) The method shall give a test result which is always less than 0.01 grams of alcohol per 100
milliliters of blood when living subjects free of alcohol are tested.
(b) The ability of methods to meet the standards of performance set forth in this Section shall be
evaluated by the Department using a laboratory's proficiency test results and such ability must
meet the requirements of these regulations.
s 1220.2. Standards of Procedure.
(a) Methods for forensic alcohol analysis shall meet the following standards of procedure:
(1) The method shall be calibrated with standards which are water solutions of alcohol.
(A) Such alcohol solutions are secondary standards.
(B) Each forensic alcohol laboratory shall establish the concentration of each lot of secondary
alcohol standards it uses, whether prepared or acquired, by an oxidimetric method which
employs a primary standard, such as United States National Bureau of Standards potassium
dichromate;
(2) The procedure shall include blank and secondary alcohol standard samples at least once each
day that samples are subjected to forensic alcohol analysis.
(A) The blank and secondary alcohol standard samples shall be taken through all steps of the
method used for forensic alcohol analysis of samples.
(3) The procedure shall also include analysis of quality control reference samples as described in
Section 1220.3 and shall include at least duplicate analyses of samples for forensic alcohol
analysis.
(A) A quality control reference sample shall not be taken from the same lot of alcohol solution
which is used as a secondary alcohol standard.
(4) Alcohols or other volatile organic solvents shall not be used to wash or rinse glassware and
instruments used for alcohol analysis;
(5) All instruments used for alcohol analysis shall be in good working order and routinely
checked for accuracy and precision.
s 1220.3. Quality Control Program.
(a) Methods for forensic alcohol analysis shall be performed in accordance with the following
quality control program:
(1) For each method of forensic alcohol analysis it performs, each forensic alcohol laboratory
shall make or acquire a suitable quality control reference material containing alcohol, a sample
of which it shall analyze along with each set of samples; the alcohol concentration in the
reference material shall be between 0.10 and 0.20 grams per 100 milliliters of liquid;
(2) For each lot of quality control reference material, the laboratory shall determine a mean value
of at least 20 replicate analyses, at a rate of no more than 2 analyses per day, with the method
used for analysis of samples for forensic alcohol analysis;
(3) Acceptable limits of variation for the method shall be set as follows:
(A) The lower limit shall be calculated by subtracting, from the mean value, 0.01 grams per 100
milliliters;
(B) The higher limit shall be calculated by adding, to the mean value, 0.01 grams per 100
milliliters;
(4) At least one sample of the quality control reference material shall be analyzed with each set
of samples analyzed for the purpose of forensic alcohol analysis;
(5) Whenever analysis of the quality control reference material is outside the acceptable limits,
the method shall be regarded to be in error, and a forensic alcohol supervisor shall take remedial
action to investigate and correct the source of error;
(6) Until such time as the error has been corrected, as shown by return of the analysis of the
quality control reference material to values within the acceptable limits, no samples shall be
analyzed for the purpose of forensic alcohol analysis.
s 1220.4. Expression of Analytical Results.
(a) With the exception of tissue analysis, all analytical results shall be expressed in terms of the
alcohol concentration in blood, based on the number of grams of alcohol per 100 milliliters of
blood.
(1) The symbols, grams %, %, and % (W/V), shall be regarded as acceptable abbreviations of the
phrase, grams per 100 milliliters of liquid.
(b) Analytical results shall be reported to the second decimal place, deleting the digit in the third
decimal place when it is present.
(c) Blood alcohol concentrations less than 0.01% in living subjects may be reported as negative.
(d) Blood alcohol concentrations less than 0.02% on post-mortem blood samples may be
reported as negative.
(e) A urine alcohol concentration shall be converted to an equivalent blood alcohol concentration
by a calculation based on the relationship: the amount of alcohol in 1.3 milliliters of blood is
equivalent to the amount of alcohol in 1 milliliter of urine.
(f) A breath alcohol concentration shall be converted to an equivalent blood alcohol
concentration by a calculation based on the relationship: the amount of alcohol in 2,100
milliliters of alveolar breath is equivalent to the amount of alcohol in 1 milliliter of blood.
(g) Tissue analysis results shall be expressed in terms of a weight amount of alcohol in a unit
weight of the specimen.
s 1221. General.
Breath alcohol analysis shall be performed in accordance with standards set forth in this Article.
s 1221.1. Authorized Procedures.
(a) Breath alcohol analysis shall be performed only with instruments and related accessories
which meet the standards of performance set forth in these regulations.
(b) Such instruments may be used for the analysis of breath samples in places other than licensed
forensic alcohol laboratories and by persons other than forensic alcohol supervisors, forensic
alcohol analysts and forensic alcohol analyst trainees only if such places and persons are under
the direct jurisdiction of a governmental agency or licensed forensic alcohol laboratory.
(1) Breath alcohol analysis by persons other than forensic alcohol supervisors, forensic alcohol
analysts and forensic alcohol analyst trainees shall be restricted to the immediate analysis of
breath samples collected by direct expiration by the subject into the instrument in which the
measurement of alcohol concentration is performed.
(2) Except for the requirements of Section 1220.4, such immediate analysis shall not be subject
to the requirements of Article 6.
s 1221.2. Standard of Performance.
(a) Instruments for breath alcohol analysis shall meet the following standard:
(1) The instrument and any related accessories shall be capable of conforming to the "Model
Specifications for Evidential Breath Testing Devices" of the National Highway Traffic Safety
Administration of the U.S. Department of Transportation, which were published in the Federal
Register, Vol. 49, No. 242, Pages 48854-48872, December 14, 1984, and are hereby adopted and
incorporated.
(b) The ability of instruments and any related accessories to conform to the standard of
performance set forth in this section shall be tested by the U.S. Department of Transportation.
s 1221.3. Approved Instruments.
(a) Only such types and models of instruments and related accessories as are named in the
"Conforming Products List" published in the Federal Register by the National Highway Traffic
and Safety Administration of the U.S. Department of Transportation shall be used for breath
alcohol analysis in this State.
s 1221.4. Standards of Procedure.
(a) Procedures for breath alcohol analysis shall meet the following standards:
(1) For each person tested, breath alcohol analysis shall include analysis of 2 separate breath
samples which result in determinations of blood alcohol concentrations which do not differ from
each other by more than 0.02 grams per 100 milliliters.
(2) The accuracy of instruments shall be determined.
(A) Such determination of accuracy shall consist, at a minimum, of periodic analysis of a
reference sample of known alcohol concentration within accuracy and precision limits of plus or
minus 0.01 grams % of the true value; these limits shall be applied to alcohol concentrations
from 0.10 to 0.30 grams %. The reference sample shall be provided by a forensic alcohol
laboratory.
1. Such analysis shall be performed by an operator as defined in Section 1221.4 (a)(5), and the
results shall be used by a forensic alcohol laboratory to determine if the instrument continues to
meet the accuracy set forth in Section 1221.4 (a)(2)(A).
(B) For the purposes of such determinations of accuracy, "periodic" means either a period of
time not exceeding 10 days or following the testing of every 150 subjects, whichever comes
sooner.
(3) Breath alcohol analysis shall be performed only with instruments for which the operators
have received training, such training to include at minimum the following schedule of subjects:
(A) Theory of operation;
(B) Detailed procedure of operation;
(C) Practical experience;
(D) Precautionary checklist;
(E) Written and/or practical examination.
(4) Training in the procedures of breath alcohol analysis shall be under the supervision of
persons who qualify as forensic alcohol supervisors, forensic alcohol analysts or forensic alcohol
analyst trainees in a licensed forensic alcohol laboratory.
(A) After approval as set forth in Section 1218, the forensic alcohol laboratory is responsible for
the training and qualifying of its instructors.
(5) An operator shall be a forensic alcohol supervisor, forensic alcohol analyst, forensic alcohol
analyst trainee or a person who has completed successfully the training described under Section
1221.4 (a) (3) and who may be called upon to operate a breath testing instrument in the
performance of his duties.
(6) Records shall be kept for each instrument to show the frequency of determination of accuracy
and the identity of the person performing the determination of accuracy.
(A) Records shall be kept for each instrument at a licensed forensic alcohol laboratory showing
compliance with this Section.
s 1221.5. Expression of Analytical Results.
Results of breath alcohol analysis shall be expressed as set forth in Section 1220.4.
s 1222. General.
Forensic alcohol laboratories and law enforcement agencies shall maintain records which clearly
represent their activities which are covered by these regulations. Such records shall be available
for inspection by the Department on request.
s 1222.1. Forensic Alcohol Laboratory Records.
(a) Each laboratory which is licensed to perform forensic alcohol analysis shall keep the
following records for a period of at least three years:
(1) An up-to-date record of persons in its employ who are qualified as forensic alcohol
supervisors and forensic alcohol analysts; the record shall include the qualifications of each such
person, including education, experience, training and performance in proficiency tests and
examinations;
(2) A list of persons in its employ who are forensic alcohol analyst trainees, the date on which
each such person began his training period and the number and results of analyses performed
during the training period;
(3) Records of samples analyzed by that laboratory under these regulations, their results and the
identity of persons performing the analyses;
(4) Records of the quality control program;
(5) Records of laboratory performance evaluation in alcohol analysis as shown by results of
proficiency tests;
(6) Records of such determinations of accuracy of breath testing instruments as a laboratory may
perform for law enforcement agencies;
(7) Records of such training as a laboratory may provide to persons who operate breath testing
instruments for law enforcement agencies.
s 1222.2. Breath Alcohol Analysis Records.
(a) Each agency shall keep the following records for breath testing instruments which are under
its jurisdiction:
(1) Records of instrument determinations of accuracy;
(2) Records of analyses performed, results and identities of the persons performing analyses;
(3) At the location of each instrument, the precautionary checklist to be used by operators of the
instrument.

How to make donation for San Diego DUI Victim

Press Release
August 28, 2010 4:45 pm

A week after an alleged San Diego DUI accident killed Marc Durham, the San Diego resident's family forgave Anthony Guarino, the Rancho Bernardo resident charged with Durham's alleged drunk driving death. "How can we ask for forgiveness if we are not willing to forgive ourselves? That's always how my family has lived."

Donations can be made for the treatment of Breast Cancer to the following:
Marc Durham Memorial Fund
Wells Fargo acct # 2375599715

Elaine Durham, the drunk driving victim's wife, hopes her family's loss will serve as a lesson to never to drive DUI in San Diego. "When you drink and drive, you might as well get a gun and shoot somebody, because it's just as dangerous. I guess if this (San Diego DUI tragedy) saves one person's life, then I would be very happy about that."

Marc Durham retired a week prior to his death. 8 days ago, driving alone to the movies, he felt 57-year-old Anthony Guarino slamm into the back of his car at a light on Camino del Norte at Carmel Mountain Road, killing him instantly, triggering a series of car crashes. 8 folks in 4 vehicles were hurt.

On September 1st, Guarino will make his first DUI court appearance in downtown San Diego Superior Court. He faces up to 10 years in prison if convicted of Felony DUI / gross vehicular manslaughter.

San Diego DUI Saturation Patrols will be deployed in the cities of San Diego, Poway, San Marcos, Santee and Chula Vista. Goal: Arrest DUI drivers

San Diego DUI Saturation Patrols will be deployed in the cities of San Diego, Poway, San Marcos, Santee and Chula Vista. Arresting DUI drivers is the goal of all Police, Sheriff and the CHP.

This Labor Day San Diego County DUI Campaign is part of a National Anti-DUI crackdown including DUI arrests by the special Avoid the 14 DUI deployments in San Diego County.

From August 20 to August 22, 2010 drunk driving officers from fourteen area agencies have arrested 228 folks for San Diego DUI.

Check out this twit or website at www.californiaavoid.org for San Diego DUI updates on this summer campaign’s DUI Enforcement, DUI arrests and DUI fatalities. San Diego DUI checkpoint locations should be monitored.

FREE SAN DIEGO DUI CONSULTATION IS THE WAY TO GO!

San Diego DMV - DUI legal representation -
TOLL FREE AT 1-800-THE-LAW-DUI 1-800-843-5293
4660 La Jolla Village Drive, # 500
San Diego, CA 92122
FREE SAN DIEGO DUI CONSULTATION IS THE WAY TO GO!

at this online drunk driving & dmv defense evaluation survey

Superb-rated

San Diego Drunk Driving Criminal Defense Lawyer Rick Mueller specializes in California DUI and DMV law. As a clear Contributor to the California Drunk Driving Law book, he is now the San Diego DUI Editorial Consultant for the most comprehensive reference book for California DUI law. Known as California's bible for DUI defense, the book features some of San Diego DUI attorney Rick Mueller's hard work.


San Diego DUI attorney Rick Mueller is a Specialist Member of the California DUI Attorneys Association. Rick's also a member of the National College for DUI Defense and the National Association of Criminal Defense Lawyers.


San Diego DUI Attorney Rick Mueller speaks at Strategies in Handling DUI Cases seminars, at the DUI & Drug Defense seminar at the San Diego Bar Building, at the North San Diego County Bar Association's Drunk Driving - DMV seminars, and at the Public Defender's Office DMV - DUI Training seminars. Beginning in 1983, DUI Lawyer Rick Mueller has actively defended these cases. San Diego DUI Attorney Rick Mueller is in Good Standing with the State Bar (#114305).

Different San Diego DUI Criminal Defense Lawyers with various sites, videos & blogs:

San Diego DUI Lawyer

Video of San Diego DUI / DMV Attorney

San Diego Drunk Driving Criminal Defense Attorney Blog

Jackson guarantees he will never get another (San Diego) DUI after his 2 San Diego DUI convictions

August 27 2010

San Diego Chargers Star Wide Receiver Vincent Jackson is prepared to sit out the entire 2010 season.

He "above all else" wants to be a San Diego Charger for life, but will do whatever is necessary to get his desired long-term contract. Jackson informed NFL.com he never asked for a trade out of San Diego. Jackson guarantees he will never get another (San Diego) DUI after his 2 San Diego DUI convictions, according to an interview with NFL.com on Friday which will be on Total Access tonight.

San Diego DUI Criminal Defense Lawyer / CDDL Attorney Specialist Rick Mueller has been ranked "10" out of "10" by nationwide drunk driving attorneys

If you need help with a San Diego DUI case or a San Diego DMV action, you can get a very quick response if you simply please fill out the important Free San Diego County Drunk Driving & DMV Defense Survey

at this online DUI evaluation

so Mr. Mueller can determine if he can help you with your case.

For current and updated DUI case law from around the country, visit

San Diego DUI Attorney Blog

San Diego DUI Criminal Defense Lawyer / CDDL Attorney Specialist Rick Mueller has been ranked "10" out of "10" by nationwide drunk driving criminal defense lawyers and clients in San Diego. For instant attorney & public reviews, visit

"Superb"-rated

San Diego County Drunk Driving, DUI & DMV Defense attorney for 27 years.

California dui criminal defense lawyers & California criminal defense attorneys who pay to hear Mr. Mueller's seminars told the President of the California DUI Lawyers Association that San Diego California DUI criminal defense lawyer Mueller's lectures and materials were very good.

If a San Diego DUI suspect refuses to take a San Diego DUI chemical test unless they have a San Diego DUI attorney present, law says it's a refusal!

San Diego police stops a person for whatever reason. Upon greeting the San Diego driver, the San Diego DUI officer smells the odor of alcohol.

The San Diego DUI officer then often starts a full-blown San Diego DUI investigation, including an interview with San Diego DUI routine questions about how much the driver drank, when the driver last ate, when the driver had the last drink and whether or not the driver felt the effects of alcohol.

San Diego DUI acrobatics tests and often a hand-held San Diego DUI breath test, the San Diego driver is arrested and taken to the San Diego DUI jail for booking and more San Diego Drunk Driving chemical testing.

California's DUI "Implied Consent" law kicks in after a driving under the influence of alcohol arrest has been made and the CHP officer legally has to offer the DUI suspect a choice of a blood or breath test.

At this point many San Diego folks, including the San Diego DUI suspect in this hypothetical may feel that they have a legal right to have a San Diego DUI attorney present for the test or that there exists a right for them to consult with a San Diego DUI lawyer at this point of the San Diego Drunk Driving investigation. However, as San Diego DUI attorneys will tell you, this is is not the case.

If a San Diego DUI suspect refuses to take a San Diego DUI chemical test unless they have a San Diego DUI attorney present, the law looks upon this as a refusal. The Fifth Amendment to the United States Constitution provides a privilege against self-incrimination. Per a 1971 case of Goodman v. Orr, the California Appellate Court ruled that collecting a sample for chemical testing of a DUI suspect is legal in order to determine if that person is under the influence of alcohol or drugs, and does not violate this privilege against self-incrimination. Goodman v. Orr is now in the language of California Vehicle Code section 23612(a)(4): the officer shall inform the suspect that she does not have the right to a (San Diego DUI) attorney before she decides which test to submit to.

If arrested for a San Diego DUI even though it may seem like you have the right to a lawyer before you decide which chemical test to take, you actually do not have the right to a San Diego California drunk driving attorney at this stage, according to the Goodman v. Orr case and CVC section 23612(a)(4).

Our Fifth Amendment privilege against self-incrimination or an invoked "imagined right" to a California DUI attorney at this stage of the CHP's investigation affords no defense to a chemical test refusal action by the DMV and criminal charge the San Diego DUI prosecutor.

Why GERD is a legitimate defense by a San Diego DUI criminal attorney

When alcohol is drank in San Diego, the alcohol in that beverage is diluted by the liquid in the stomach contents immediately after it is swallowed.

For each pint of stomach contents, the weight of the liquid is at most a pound per pint (a pint of liquid drink weighs about a pound).

If a person drank one pint of beer, the alcohol in that beer would be diluted by a pound of water when that drink first entered the stomach.

For a 150 pound man, the amount of water in the body is 2/3, according to Widmark's equations and work, or for a woman, the percentage of water is 54%.

Assuming a male client, when the alcohol in the beer is fully absorbed by the body, that alcohol is distributed throughout the 100 pounds of water in the body.

Or assuming that there is no digestion of the ethanol, the ethanol in the stomach is 100 times more concentrated than the ethanol in the blood after the body completely absorbs the ethanol.

Critically, because if GERD is present, the ethanol in the stomach contents will be at a much higher concentration than he ethanol in the air coming from the lungs, and will cause the machine to register ethanol at a much higher level than it should.

Just a little regurgitation of gas or small burp will introduce ethanol that is 100 times as concentrated, for that small amount of air in the burp, and will result in a test result that is way too high.

As a body absorbs ethanol, absorption takes place mostly in the small intestines.

Which is why a person who drinks with a meal absorbs ethanol, and thus becomes intoxicated, at a slower rate, and the maximum level of ethanol is lower.

Alcohol consumption with a meal results in less impairment, if any. The ethanol simply remains in the stomach longer.

So when the stomach contents pass to the small intestines from the stomach, the stomach never completely empties. Some of the contents, with ethanol in them, stay in the stomach until the next meal, or the next liquid is consumed. If this were not so, then acid reflux would never occur x hours after a meal, and this is just not the case.

This is true for anyone who suffers from acid reflux. As long as ethanol remains in the stomach, a GERD event - or regurgitation of gas - will contaminate the breath sample. That can be for a number of hours.

Bottom Line: GERD is a big problem for San Diego DUI breath test machines that try to measure how much ethanol is in the human body, because stomach contents are highly concentrated compared to the air coming from the lungs, unless you drink 100 pints of beer and hold all of that in your stomach (which is a physical impossibility). San Diego DUI attorneys need records & expert(s) to try to establish this phenomenon.

Can a person arrested for a San Diego DUI cure an initial refusal to submit to a drunk driving chemical test, change his mind so it's not a refusal?

San Diego DUI Attorneys must approach refusal cases with an important consideration - if the San Diego DUI police officer gets what he wants (a chemical test) then he has achieved his goal and if the circumstances permit, San Diego DUI Lawyer Rick Mueller advances the simple notion the initial refusal was cured within a reasonable time and that the driver submitted to testing as required by California implied consent law.

Here's what happens:

A San Diego driver is arrested for DUI and ultimately asked to submit to chemical testing.

He initially refuses.

Some time later, up to say about a half hour later, when a San Diego drunk driving officer fills out some chemical test admonition related papers, the San Diego DUI suspect says he now wants to submit to testing.

This Kansas drunk driving cop believed that he could not allow the defendant the opportunity to change his mind.

The DUI court rejected the refusal allegation, believing that the driver had appropriately "rescinded" his refusal and that he should have been allowed to take the requested breath test.

The Kansas Supreme Court backed the driver, holding that an arrested person should be given every reasonable opportunity to submit to testing, including the opportunity to rescind or change an initial test refusal where the rescission is reasonable under the circumstances.

To be effective as a rescission of a prior refusal, the rescission must be made:

(1) within a very short and reasonable time after the prior first refusal;

(2) when a test administered upon the subsequent consent would still be accurate; (3) when testing equipment is still readily available;
(4) when honoring the request will result in no substantial inconvenience or expense to the police; and
(5) when the individual requesting the test has been in the custody of the arresting officer and under observation for the whole time since arrest.

These rules are to be interpreted with a view to furthering the stated goal of providing an arrested person every reasonable opportunity to submit to testing.

This is another case in a long line of cases favoring the driver in such a situation.

Supreme Court of Kansas.
Charles McINTOSH, Appellee,
v.
KANSAS DEPARTMENT OF REVENUE, Appellant.

No. 101,878.
Aug. 20, 2010.


Syllabus by the Court

*1 1. The purpose of our implied consent laws is to encourage a person arrested for driving under the influence of alcohol to submit to chemical testing to determine the person's blood or breath alcohol content. To further that coercive purpose, an arrested person should be given every reasonable opportunity to submit to testing, including the opportunity to rescind or change an initial test refusal where the rescission is reasonable under the circumstances.

2. Previously, this court held that for a subsequent consent to blood or breath alcohol testing to be effective as a rescission of a prior refusal, it must be made: (1) within a very short and reasonable time after the prior first refusal; (2) when a test administered upon the subsequent consent would still be accurate; (3) when testing equipment is still readily available; (4) when honoring the request will result in no substantial inconvenience or expense to the police; and (5) when the individual requesting the test has been in the custody of the arresting officer and under observation for the whole time since arrest. These rules are to be interpreted with a view to furthering the stated goal of providing an arrested person every reasonable opportunity to submit to testing.

3. The requirement that a rescission of a previous refusal to consent to breath or blood alcohol testing under K.S.A. 8-1001 must be made within a very short and reasonable time after the test refusal is not subject to a bright line rule of a specific number of minutes. Rather, the focus should be on the particular circumstances of the case, including a look at what is transpiring during the period of delay.

4. When an arrested person seeks to rescind a refusal to consent to blood or breath alcohol testing, the requirement that the arrestee has been in the custody of the arresting officer and under observation for the whole time since arrest can be satisfied where custody and observation has been temporarily transferred to another law enforcement officer or where the arrestee has been momentarily out of the arresting officer's physical presence under circumstances that will not compromise the integrity of the test results.


Appeal from Barton District Court; Ron Svaty, judge.
John D. Shultz, of Kansas Department of Revenue, argued the cause, and James G. Keller, of Kansas Department of Revenue, was with him on the brief for appellant.

Michael S. Holland II, of Holland and Holland, of Russell, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by JOHNSON, J.:

The Kansas Department of Revenue (KDR) administratively suspended Charles McIntosh's driving privileges based upon a refusal to submit to a breath test following his arrest for driving under the influence (DUI), see K.S.A.2009 Supp. 8-1002. McIntosh petitioned the district court to review the suspension, claiming that he had effectively rescinded his refusal and consented to take the breath test. The district court found that McIntosh had appropriately rescinded his test refusal; that he should have been permitted to take the breath test; and that the administrative driver's license suspension should be dismissed. KDR appealed the district court's decision, and the case was transferred to this court on its own motion. See K.S.A. 20-3018(c). We affirm the district court.

Factual and Procedural Overview
*2 Officer Rod Weber of the Great Bend Police Department arrested McIntosh for DUI and transported him to the law enforcement center. Upon arrival in the receiving room, the jail staff did a pat-down search of McIntosh for weapons or contraband, after which Officer Weber proceeded to give McIntosh the implied consent advisories. When asked if he would submit to a breath test, McIntosh said no. Jail staff then escorted McIntosh to the booking area for processing, while Officer Weber remained in the receiving area for approximately 20 to 30 minutes to complete the Officer's Certification and Notice of Suspension, form DC-27, and to prepare citations. From his location in the receiving room, Officer Weber could not see McIntosh in the booking area of the jail.

When the paperwork was completed, Officer Weber went into the booking area and personally served McIntosh with the DC-27 form and the citations. At that time, McIntosh advised Officer Weber that he wanted to take the breath test, but Officer Weber would not administer it because he believed that McIntosh had been given ample opportunity to take the test earlier.

In the DC-27 form, Officer Weber certified a test refusal and, after an administrative hearing, KDR issued an order suspending McIntosh's driving privileges. McIntosh petitioned the district court for review of the administrative order, alleging that the officer's certification of a test refusal was erroneous because McIntosh had timely rescinded the refusal and consented to the test. At the district court hearing, both parties argued that the factors governing a rescission of a test refusal set forth in Standish v. Department of Revenue, 235 Kan. 900, 683 P.2d 1276 (1984), were controlling. The district court took the matter under advisement and directed the parties to submit memoranda. Ultimately, the district court issued a journal entry in which it found that “plaintiff appropriately ‘rescinded’ his refusal pursuant to Kansas law and that he should have been allowed to take the requested breath test.”

Did the district court err in determining that plaintiff effectively rescinded his refusal to submit to a breath alcohol test?
Standard of Review
“Following a trial de novo, this court reviews the trial court's license suspension to determine if it is supported by substantial competent evidence. [Citation omitted.]” Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 772, 148 P.3d 538 (2006). However, as KDR acknowledges, the parties in this case do not dispute the underlying facts. Rather, the question presented is the manner in which our prior opinion in Standish should be interpreted and applied to the undisputed facts. Accordingly, we are presented with a question of law, for which this court's review is unlimited. Cf. Bruch, 282 Kan. at 772 (statutory interpretation is a question of law subject to unlimited review).

Analysis
Given that KDR relies exclusively on Standish, we begin by reviewing that case. A law enforcement officer arrested Standish for DUI, advised him of his Miranda rights, and then asked him to take a breathalyzer test. Standish responded that he wanted to talk with his attorney first. The officer took Standish to the police department, where he unsuccessfully attempted to call his attorney. When Standish continued to refuse to take the breath test until he had consulted his attorney, the officer took Standish to the county jail. The officer left the jail and returned to duty. Within 15 to 30 minutes, Standish asked a jailer whether he was going to take the test. Without consulting the arresting officer, the jailer responded that it was too late. The arresting officer testified that if Standish had changed his mind while still in the officer's custody, the officer would have administered the test.

*3 The administrative law judge found that Standish had refused to submit to a chemical breath test and suspended his driving privileges. Standish appealed to the district court, where, following an evidentiary hearing, the court found that Standish had rescinded his test refusal within a reasonable time and, therefore, the suspension order was reversed. The KDR appealed, raising “but one issue on appeal: whether an initial refusal to submit to a lawfully requested chemical test of breath to determine the alcoholic content of the blood, K.S.A. 8-1001, may be ‘rescinded’ by subsequent consent.” 235 Kan. at 900-01.

The Standish opinion began by reciting that K.S.A. 8-1001 provides that all vehicle operators are deemed to have given their consent to submit to a chemical test of breath or blood to determine the alcoholic content in the operator's blood, and that a refusal to submit to such testing can result in the suspension of the operator's driver's license. The court then noted that “[t]here is nothing within the statute regarding the right of a person so arrested to change his mind and ‘rescind’ a refusal to take the test .” 235 Kan. at 902. However, after advising that it had carefully considered cases from other jurisdictions, which were chain cited without further discussion or analysis, the opinion declared:

“The chemical testing system provided under our implied consent law is important because it provides the best available and most reliable method of determining whether a driver is ‘under the influence’ of alcohol. It protects both the accused and the public. A refusal to submit to the test, on the other hand, invokes serious consequences for the person arrested. We believe that the administration of the test should be encouraged and the person arrested should be given every reasonable opportunity to submit to it. For this reason, we hold that an initial refusal may be changed or rescinded, and if rescinded in accordance with the following rules, cures the prior refusal. To be effective, the subsequent consent must be made:

(1) within a very short and reasonable time after the prior first refusal;

(2) when a test administered upon the subsequent consent would still be accurate;

(3) when testing equipment is still readily available;

(4) when honoring the request will result in no substantial inconvenience or expense to the police; and

(5) when the individual requesting the test has been in the custody of the arresting officer and under observation for the whole time since arrest.” 235 Kan. at 902-03.

After establishing the rules for curing an initial test refusal, the court briefly discussed how the rescission rules applied to Standish's scenario, albeit without referring to any individually enumerated rule. We take the liberty of quoting the analysis in its entirety:

“For example, if Standish had refused at the scene and then changed his mind and requested the test a few minutes later when he arrived at the police station, the test should have been given. Here, however, Standish did not change his mind until the arresting officer had taken him from the scene to the police station and then to the jail, and until some time after the officer had left the jail and returned to his other duties. This, under the rules laid down above, was too late. The arresting officer need not sit and wait for the person to change his or her mind, and thus neglect other duties.” 235 Kan. at 903.

*4 In the interest of completeness, we note that the Supreme Court ultimately affirmed the district court's reversal of Standish's license suspension, notwithstanding the absence of a curative rescission. Standish found that the giving of the Miranda warnings immediately prior to requesting a breath alcohol test could have misled Standish into believing that he had the constitutional right to consult with an attorney before consenting to the test, even though no such right exists. Therefore, Standish held that the test refusal was reasonable under those unique circumstances, which circumstances are not present in the case before us. 235 Kan. at 905. Here, we are only considering the validity of the curative rescission.

KDR relies exclusively on its interpretation of the Standish rules, specifically, the first and last enumerated rules. It does not challenge compliance with the middle three rules. When McIntosh asked to take the test: the results would still have been accurate; the testing equipment was still readily available; and honoring the request would not have resulted in substantial inconvenience or expense to the police. Rather, KDR contends that the test request was not made within a very short and reasonable time after the initial refusal and that McIntosh was not in the custody of the arresting officer, Officer Weber, and under his observation for the whole time between arrest and the rescinded refusal/test request.

KDR attempts to flesh out the Standish opinion to divine a specific and unique meaning in the language employed in the first and last rules. Although Lund v. Hjelle, 224 N.W.2d 552 (N.D.1974), was simply included in Standish's chain cite, without any discussion or analysis, KDR speculates that the Standish court lifted the Kansas rules for rescission from that North Dakota decision. Then, KDR argues that certain modifications to the Lund language manifest an intent by this court to make the rules more restrictive in this state.

Specifically, KDR points out that Lund said the postrefusal test request must be “made within a reasonable time after the prior first refusal.” 224 N.W.2d at 557. In contrast, the Standish rule requires the subsequent consent to be “within a very short and reasonable time after the prior first refusal.” (Emphasis added.) 235 Kan. at 903. Likewise, Lund required that the requesting individual “has been in police custody and under observation for the whole time since his arrest.” 224 N.W.2d at 557. In contrast, Standish replaced “in police custody” with “in the custody of the arresting officer.” 235 Kan. at 903.

The striking similarity between the language employed in Lund and that used in the Standish rules gives credence to KDR's theory that Lund was used as the examplar for our rules, notwithstanding the absence of any discussion of Lund. Likewise, the utilization of the modified language might be considered an obtuse signal that the Kansas court meant something different than the North Dakota court. Nevertheless, given that the Standish rescission rules were court-created to further the purposes of the implied consent law, it is only logical that the rules should be interpreted with a view to furthering their purposes.

Timeliness
*5 KDR argues that the time elapse of approximately 30 minutes between McIntosh's test refusal and subsequent request to take the test was outside the “very short” time requirement in Standish's first rule. To support that contention, KDR recites the Standish analysis, quoted above, and singles out the sentence that reads: “This, under the rules laid down above, was too late.” 235 Kan. at 903. Then, the KDR asserts that the time period in Standish was from “fifteen to thirty minutes.” 235 Kan. at 901. The apparent suggestion is that if 15 to 30 minutes was too late in Standish, then 30 minutes must be untimely in this case. We note both factual and analytical problems with KDR's argument.

In reciting the facts, the Standish opinion says that the arresting officer took Standish to the jail and then the officer “left the jail and returned to duty. Within fifteen to thirty minutes Standish talked to the jailer and asked him, ‘Am I going to take this test or what?’ “ 235 Kan. at 901. It is not clear whether the 15 to 30 minutes refers to the time that elapsed after the officer left the jail and returned to duty or, as KDR apparently contends, refers to the time that elapsed between the test refusal and subsequent request. Furthermore, in our case, Officer Weber's actual testimony was that it took him roughly 20 to 30 minutes to complete the paperwork after the refusal.

More importantly, the Standish analysis does not clarify whether the subsequent request was too late under the first rule, either because the elapsed time between refusal and rescission was not a very short time or was not a reasonable time, or whether the request came too late under the fourth rule because honoring the request would have resulted in substantial inconvenience for the police. The analysis emphasizes that the officer had left the jail and returned to his other duties and declares that the “arresting officer need not sit and wait for the person to change his or her mind, and thus neglect other duties.” 235 Kan. at 903. Given that emphasis, we do not believe that Standish intended to create a bright-line rule that 30 minutes is not a very short time, i.e., a rule that a 30-minute old refusal cannot be cured. Rather, the focus should be on the particular circumstances of a case, including a look at what is transpiring during the period of delay.

Here, unlike the officer in Standish, Officer Weber had not left the jail to return to his regular duties when McIntosh asked to take the test. In fact, Officer Weber was still performing or in the process of concluding his duties with respect to the DUI arrest. See K.S.A.2009 Supp. 8-1002(c) and (e) (officer shall personally serve notice of suspension upon person still in custody when determination of test refusal is made; if person refuses test, officer shall take any license in person's possession and issue temporary license). Moreover, as McIntosh points out, he rescinded his test refusal at the first opportunity he had to convey his wishes to Officer Weber. The elapsed time between refusal and rescission in this instance was totally under the control of the officer, who could take whatever time he wanted to complete the notice of suspension and temporary license that had to be personally served on McIntosh. There is no indication that McIntosh was intentionally manipulating the right of rescission.

*6 The time frame here is more akin to the scenario in State v. Gray, 270 Kan. 793, 797, 18 P.3d 962 (2001). In Gray, the arresting officer gave the implied consent advisory and asked Gray to take a breath test. Gray responded that he did not have his glasses with him, that he could not understand the form, and that he wanted to speak with an attorney. The officer advised Gray that he could not consult with an attorney, but reread a portion of the implied consent notice. Gray reiterated that he wanted to speak to an attorney and opined that because he could not read the form, he should not have to take the test. “All told, the meeting between [the officer] and Gray took about 35 minutes.” 270 Kan. at 795. The officer determined that Gray's actions constituted a test refusal and marked the DC-27 accordingly. When the form was served on Gray, he immediately said he would take the test, but the officer would not allow the test.

On appeal, this court found the facts of that case clearly met each of the Standish elements. With respect to the timeliness rule, Gray stated that “[t]he subsequent consent was given within a minute or less of when the officer checked the ‘refusal’ box on the consent form.” 270 Kan. at 797. Here, although we do not know exactly when Officer Weber may have checked the refusal box on the consent form, McIntosh's consent came immediately upon being served with that form, i.e., upon being notified that the refusal box had been checked. Accordingly, we find that McIntosh's rescission was timely under the Standish standards.

Custody and Observation
The fifth Standish rule requires that the person requesting the test, i.e., rescinding a prior refusal, “has been in the custody of the arresting officer and under observation for the whole time since arrest.” 235 Kan. at 903. KDR argued to the district court that this means that the person must be in the immediate presence of the arresting officer for the whole time from arrest until the rescission. The rationale proffered below was that an absence from the officer's presence could compromise the protocol for the test, because a defendant could claim that he or she “burped a little bit ago” or that he or she had put a hand in the mouth.

McIntosh countered that the protocol for conducting a breath test only requires an observation period of 20 minutes immediately preceding the test. A test result is not invalidated if a person “burps” or places something in his or her mouth at some point following arrest, so long as the proscribed conduct does not occur during the requisite 20-minute observation period. McIntosh suggests that the only conduct that would have invalidated the test results was a postarrest consumption of alcohol. That conduct was precluded in this case by the initial search of McIntosh for contraband and by McIntosh being in the custody of the jail personnel during the period he was not being personally observed by Officer Weber.

*7 As noted, Standish did not favor us with an explanation of why it chose the language employed in the fifth rule. For instance, we note that the prepositional phrase, “of the arresting officer,” is applied to “custody,” but not to “observation,” which might suggest that someone other than the arresting officer could be performing the observation requirement while the defendant is in the arresting officer's custody. Granted, the countering argument is that to be in the arresting officer's custody the defendant must be in the officer's physical presence and, thus, under the officer's observation. Of course, if that was the intent, one might ponder the necessity of including both a custody and an under-observation requirement. Nevertheless, we do not believe our decision should hinge on parsing the language used to create the court-made rule in Standish. Rather, we should be guided by the purpose behind the rule.

In developing the rescission rule, Standish opined “that the administration of the test should be encouraged and the person arrested should be given every reasonable opportunity to submit to it.” 235 Kan. at 902. As McIntosh argues, under KDR's interpretation of the rule, some arrested persons will be precluded from changing their minds about taking the test, even if the consent immediately follows refusal, based upon what the officer may have done after the arrest. For instance, an arresting officer might leave the arrestee in the patrol car or in the custody of another officer while searching the arrestee's vehicle for open containers. The officer might use the restroom or permit the arrestee to do so. The officer might not be certified on the testing equipment, so that custody of the arrestee is delivered to a test-qualified officer. In such instances, the arrestee would not have been under observation by the arresting officer for the whole time following arrest.

Such lapses in the arresting officer's custody and observation would not preclude the arrestee's opportunity to initially consent to a breath test. KDR argues that a consent which follows an initial test refusal is simply treated differently than an initial consent. It does not explain how that disparate treatment comports with the concept of providing arrestees with “every reasonable opportunity to submit to [blood alcohol testing].” Standish, 235 Kan. at 902. To the contrary, KDR would have us provide McIntosh with but one opportunity to submit to testing.

The better argument may be that the lapse of observation in this case occurred after the test refusal and that Officer Weber could not personally attest to McIntosh's abstinence from further alcohol consumption during that period. However, upon arrival at the jail, McIntosh was personally searched for contraband, which presumably would include any alcoholic beverages. Further, he was in the custody of jail personnel for the purpose of completing the booking process. It is not unreasonable to impute to the arresting officer the jailers' observational knowledge, i.e., that McIntosh was not drinking alcohol during the booking process. Cf. State v. Bieker, 35 Kan.App.2d 427, 435, 132 P.3d 478, rev. denied 282 Kan. 792 (2006) (an officer's reasonable suspicion to detain may be based upon the collective knowledge of all officers involved). Accordingly, we find that the circumstances in this case conformed to the custody and observation requirements for a valid rescission.

*8 In conclusion, we find that the district court did not err in finding that McIntosh's rescission of his refusal of a breath test met the Standish requirements; that McIntosh's subsequent consent to testing was valid; that the arresting officer should not have refused to allow the testing; and that KDR's suspension of McIntosh's driver's license was invalid and must be reversed.

Affirmed.

DAVIS, C.J., not participating.

Kan.,2010.
McIntosh v. Kansas Department of Revenue
--- P.3d ----, 2010 WL 3273500 (Kan.)

San Diego DMV defense lawyer's defenses at an APS hearing are specialized and technical, more so than in drunk driving criminal court

The important first step you need to take is protect yourself by having an attorney contact San Diego DMV for an admin. per se Hearing.

A focused and diligent San Diego defense attorney has just 10 CALENDAR DAYS after the DUI arrest to call the San Diego DMV Driver Safety Office to timely demand a hearing.

Due to lots of delays, San Diego DMV cannot schedule a hearing before your 30-day temporary license expires. Your San Diego DUI criminal defense lawyer will request a Notice of Stay of the 30-day temporary license until a San Diego DMV hearing is provided and a San Diego DMV decision is actually rendered.

Due to the absence of an independent San Diego DUI judge to offer some protection, you are strongly advised not to try to represent yourself. Because these are not San Diego DUI criminal proceedings, San Diego County public defenders are unavailable.



There are odd San Diego DMV rules, San Diego DMV laws and San Diego DMV procedures. The San Diego DUI / DMV hearing is presided over by a Driver Safety Officer (DMV hearing officer) rather than a real judge, an employee of the DMV not trained in law who acts as both prosecutor and judge. As unfair as it is, she or he can legally object to your evidence, rule on her or his own objection, dually engage your San Diego DUI / DMV lawyer, and admit or not admit either party's evidence.



Evidence is offered: documents and/or witnesses. The Driver Safety Officer offers the San Diego drunk driving / DUI police report, DMV records, San Diego DUI alcohol reports and the important San Diego DUI officer's sworn statement entitled a "DS 367." With no Fifth Amendment right at the hearing, your San Diego DUI / DMV attorney usually will not want you to be present at the hearing since the Driver Safety Officer can call you as a witness and force you to testify against yourself if you ill-advisedly appear.



A decision will usually be mailed a few days or even weeks after the hearing. A San Diego DMV / DMV suspension can be set aside or sustained. If the San Diego DMV suspension is sustained, the decision can be appealed to the DMV in Sacramento and/or to the San Diego Superior court by filing a San Diego DMV petition for writ of mandamus.




A San Diego DMV defense lawyer's defenses at an APS hearing are specialized and technical, more so than in criminal court. Frequent San Diego DUI / DMV proof problems - as well as legal, procedural and bureaucratic obstacles - are possible grounds for setting aside the suspension.





The San Diego Driver Safety Office is located at 9174 Sky Park Avenue, Suite 200, San Diego (858/627-3901 or fax 858/627-3925).

San Diego DUI criminal defense attorneys are asking if this new California drunk driving bill eliminates a multiple San Diego DUI restriction w/ IID?

San Diego DUI criminal defense attorneys are asking if this new California drunk driving bill eliminates a multiple San Diego DUI offender's license after 90 day with ignition interlock device?

BILL NUMBER: AB 1601

AMENDED BILL TEXT

AMENDED IN SENATE AUGUST 17, 2010
AMENDED IN SENATE JULY 15, 2010
AMENDED IN ASSEMBLY MAY 28, 2010
AMENDED IN ASSEMBLY FEBRUARY 4, 2010

INTRODUCED BY Assembly Member Hill
(Principal coauthor: Assembly Member Nava)
(Principal coauthors: Senators Harman, Leno, Liu, and Maldonado)
(Coauthors: Assembly Members Bill Berryhill, Blakeslee, Block,
Blumenfield, Evans, Fong, Gilmore, Huber, Huffman, Jeffries, Knight,
Ma, Monning, Nielsen, Portantino, Smyth, Audra Strickland, Torlakson,
and Tran)
(Coauthor: Senator Cox)

JANUARY 4, 2010

An act to amend Section 23665 Sections
13352, 23109, 23550, 23550.5, 23552, 23566, and 23568 of, and
to add Section 23597 to, the Vehicle Code, relating to vehicles.


LEGISLATIVE COUNSEL'S DIGEST


AB 1601, as amended, Hill. Vehicles: driving under the
influence driving-under-the-influence (DUI) :
repeat offenders.
(1) Existing law requires, if a person is convicted of a specified
driving under the influence
driving-under-the-influence (DUI) offense and the offense
occurred within 10 years of 2, or 3 or more, prior specified DUI
offenses that resulted in a conviction, that the person be punished
by enhanced penalties, and that the person's privilege to operate a
motor vehicle be revoked by the department for a period of 2, 3, 4,
or 5 years, as applicable.
Existing law authorizes the court to impose specified additional
orders on a person when the person is convicted of a
driving-under-the-influence (DUI) offense, depending on the
circumstances.
This bill would , beginning January 1, 2012, authorize
the court to order a 10-year revocation of the driver's license of a
person who has been convicted of 3 or more specified DUI offenses if
the court considers certain factors, including, but not limited to,
the period of time that has elapsed since his or her previous DUI
convictions. The bill would also authorize the
a person who had his or her driver's
license revoked for 10 years to apply to the Department of
Motor Vehicles, 5 years from the date of the last DUI conviction, to
have his or her privilege to operate a motor vehicle reinstated
subject to certain conditions, including, among other things, the
condition that the person was not convicted of any other drug- or
alcohol-related offenses, under state law, during the driver's
license revocation period.
(2) Existing law authorizes a court to postpone the revocation or
suspension of a person's driving privilege until the term of
imprisonment is served, if that person was convicted of certain DUI
provisions, among other things, and sentenced to serve one year in a
county jail or more than one year in a state prison.

This bill would instead require the court to postpone the
revocation or suspension of a person's driving privilege until the
term of imprisonment is served, and notify the department of the
postponement, if that person was convicted of certain DUI provisions
and sentenced to serve any time in a county jail or state prison.

(2) Existing law requires that a person, convicted of driving
under the influence, without bodily injury to another, within 10
years of being convicted of a separate violation of one or more
specified DUI offenses, be punished by his or her driving privilege
being suspended or revoked for a period of 2 or more years. Existing
law requires, among other things, the Department of Motor Vehicles to
advise a person, who was only under the influence of an alcoholic
beverage at the time of the violation, that he or she may apply for a
restricted driver's license after completion of 90 days, 6 months,
or 12 months, of the suspension or revocation period, or if the
person was under the influence of any drug or the combination of any
drug and alcohol, or if the person concurrently did any act forbidden
by law or neglected any duty imposed by law that proximately caused
bodily injury to another person other than the driver, then after
completion of 12 months of the revocation period, which may include
credit for a specified concurrent suspension, subject to specified
conditions.
This bill would revise and recast the above provisions to make
technical and nonsubstantive, as well as conforming, changes as a
result of the changes made by Chapter 193 of the Statutes of 2009 (SB
598).
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. Section 13352 of the Vehicle
Code is amended to read:
13352. (a) The department shall immediately suspend or revoke the
privilege of a person to operate a motor vehicle upon the receipt of
an abstract of the record of a court showing that the person has
been convicted of a violation of Section 23152 or 23153, subdivision
(a) of Section 23109, or Section 23109.1, or upon the receipt of a
report of a judge of the juvenile court, a juvenile traffic hearing
officer, or a referee of a juvenile court showing that the person has
been found to have committed a violation of Section 23152 or 23153
or subdivision (a) of Section 23109 or Section 23109.1. If an offense
specified in this section occurs in a vehicle defined in Section
15210, the suspension or revocation specified below shall apply to
the noncommercial driving privilege. The commercial driving privilege
shall be disqualified as specified in Sections 15300 to 15302,
inclusive. For the purposes of this section, suspension or revocation
shall be as follows:
(1) Except as required under Section 13352.1 or 13352.4, upon a
conviction or finding of a violation of Section 23152 punishable
under Section 23536, the privilege shall be suspended for a period of
six months.
The privilege may shall not be
reinstated until the person gives proof of financial responsibility
and gives proof satisfactory to the department of successful
completion of a driving-under-the-influence program licensed pursuant
to Section 11836 of the Health and Safety Code described in
subdivision (b) of Section 23538. If the court, as authorized under
paragraph (3) of subdivision (b) of Section 23646, elects to order a
person to enroll in, participate in, and complete either program
described in subdivision (b) of Section 23542, the department shall
require that program in lieu of the program described in subdivision
(b) of Section 23538. For the purposes of this paragraph, enrollment
in, participation in, and completion of an approved program shall be
subsequent to the date of the current violation. Credit may
shall not be given to any program activities
completed prior to the date of the current violation.
(2) Upon a conviction or finding of a violation of Section 23153
punishable under Section 23554, the privilege shall be suspended for
a period of one year. The privilege may shall
not be reinstated until the person gives proof of financial
responsibility and gives proof satisfactory to the department of
successful completion of a driving-under-the-influence program
licensed pursuant to Section 11836 of the Health and Safety Code as
described in subdivision (b) of Section 23556. If the court, as
authorized under paragraph (3) of subdivision (b) of Section 23646,
elects to order a person to enroll in, participate in, and complete
either program described in subdivision (b) of Section 23542, the
department shall require that program in lieu of the program
described in Section 23556. For the purposes of this paragraph,
enrollment, participation, and completion of an approved program
shall be subsequent to the date of the current violation. Credit
may shall not be given to any program
activities completed prior to the date of the current violation.
(3) Except as provided in Section 13352.5, upon a conviction or
finding of a violation of Section 23152 punishable under Section
23540, and if the person was found to be only under the
influence of an alcoholic beverage at the time of the violation of
Section 23152, the privilege shall be suspended for two
years. The privilege may shall not be
reinstated until the person gives proof of financial responsibility
and gives proof satisfactory to the department of successful
completion of a driving-under-the-influence program licensed pursuant
to Section 11836 of the Health and Safety Code as described in
subdivision (b) of Section 23542. For the purposes of this paragraph,
enrollment in, participation in, and completion of an approved
program shall be subsequent to the date of the current violation.
Credit shall not be given to any program activities completed prior
to the date of the current violation. The department shall advise
a the person convicted or
found to be in violation of subdivision (a) or (b) of Section 23152
that after completion of 90 days of the suspension period, which may
include credit for a suspension period served under subdivision (c)
of Section 13353.3, the person may apply to the department for a
restricted driver's license. Eligibility for the restricted driver's
license is subject to the following conditions: that
he or she may apply to the department for a restriction of the
driving privilege, which may include credit for a suspension period
served under subdivision (c) of Section 13353.3, subject to the
following conditions:
(A) Completion of 12 months of the suspension period, or
completion of 90 days of the suspension period if the underlying
conviction did not include the use of drugs as defined in Section 312
and the person was found to be only under the influence of an
alcoholic beverage at the time of the violation.
(A)
(B) The person has satisfactorily
provided provides , subsequent to the
violation date of the current underlying conviction, either of the
following:
(i) Proof of enrollment in an 18-month driving-under-the-influence
program licensed pursuant to Section 11836 of the Health and Safety
Code.
(ii) Proof of enrollment in a 30-month driving-under-the-influence
program licensed pursuant to Section 11836 of the Health and Safety
Code, if available in the county of the person's residence or
employment.
(B)
(C) The person agrees, as a condition of the
restriction, to continue satisfactory participation in the program
described in subparagraph (A) (B) .

(C)
(D) The person submits the "Verification of
Installation" form described in paragraph (2) of subdivision (g) of
Section 13386.
(D)
(E) The person agrees to maintain the ignition
interlock device as required under subdivision (g) of Section 23575.

(E)
(F) The person provides proof of financial
responsibility, as defined in Section 16430.
(F)
(G) The person pays all reissue fees and any
restriction fee required by the department.
(G)
(H) The person pays to the department a fee sufficient
to cover the costs of administration of this paragraph, as determined
by the department.
(H)
(I) The restriction shall remain in effect for the
period required in subdivision (f) of Section 23575.
(4) Except as provided in this paragraph, upon a conviction or
finding of a violation of Section 23153 punishable under Section
23560, the privilege shall be revoked for a period of three years.
The privilege may not be reinstated until the person gives proof of
financial responsibility, and the person gives proof satisfactory to
the department of successful completion of a
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, as described in paragraph (4) of
subdivision (b) of Section 23562. For the purposes of this
paragraph, enrollment in, participation in, and completion of an
approved program shall be subsequent to the date of the current
violation. Credit shall not be given to any program activities
completed prior to the date of the current violation. The department
shall advise the person that after the completion of 12 months of the
revocation period, which may include credit for a suspension period
served under subdivision (c) of Section 13353.3, the person may apply
to the department for a restricted driver's license, subject to the
following conditions:
(A) The person has satisfactorily completed, subsequent to the
violation date of the current underlying conviction, either of the
following:
(i) The initial 12 months of an 18-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code.
(ii) The initial 12 months of a 30-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, if available in the county of
the person's residence or employment, and the person agrees, as a
condition of the restriction, to continue satisfactory participation
in that 30-month program.
(B) The person submits the "Verification of Installation" form
described in paragraph (2) of subdivision (g) of Section 13386.
(C) The person agrees to maintain the ignition interlock device as
required under subdivision (g) of Section 23575.
(D) The person provides proof of financial responsibility, as
defined in Section 16430.
(E) The person pays all applicable reinstatement or reissue fees
and any restriction fee required by the department.
(F) The restriction shall remain in effect for the period required
in subdivision (f) of Section 23575.
(5) Except as provided in this paragraph, upon a conviction or
finding of a violation of Section 23152 punishable under Section
23546, and if the person was found to be only under the
influence of an alcoholic beverage at the time of the violation of
Section 23152, the privilege shall be revoked for a period
of three years. The privilege may shall
not be reinstated until the person files proof of financial
responsibility and gives proof satisfactory to the department of
successful completion of one of the following programs: an 18-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, as described in subdivision (b)
or (c) of Section 23548, or, if available in the county of the person'
s residence or employment, a 30-month driving-under-the-influence
program licensed pursuant to Section 11836 of the Health and Safety
Code, or a program specified in Section 8001 of the Penal Code. For
the purposes of this paragraph, enrollment in, participation in, and
completion of an approved program shall be subsequent to the date of
the current violation. Credit shall not be given to any program
activities completed prior to the date of the current violation. The
department shall advise a the person
convicted or found to be in violation of subdivision (a) or
(b) of Section 23152 that after completion of six months of the
revocation period, which may include credit for a suspension period
served under subdivision (c) of Section 13353.3, the person may apply
to the department for a restricted driver's license. Eligibility for
the restricted driver's license is subject to the following
conditions: that he or she may apply to the department
for a restriction of the driving privilege, which may include credit
for a suspension period served under subdivision (c) of Section
13353.3, subject to the following conditions:
(A) Completion of 12 months of the suspension period, or
completion of six months of the suspension period if the underlying
conviction did not include the use of drugs as defined in Section 312
and the person was found to be only under the influence of an
alcoholic beverage at the time of the violation.
(A)
(B) The person has satisfactorily
provided provides , subsequent to the
violation date of the current underlying conviction, one
either of the following:
(i) With regard to a conviction under subdivision (a) or
(b) of Section 23152, proof Proof of enrollment
in an 18-month driving-under-the-influence program licensed pursuant
to Section 11836 of the Health and Safety Code.
(ii) With regard to a conviction under subdivision (a) or
(b) of Section 23152, proof Proof of enrollment
in a 30-month driving-under-the-influence program licensed pursuant
to Section 11836 of the Health and Safety Code, if available in the
county of the person's residence or employment, and the person
agrees, as a condition of the restriction, to continue satisfactory
participation in the 30-month driving-under-the-influence program.

(B)
(C) The person submits the "Verification of
Installation" form described in paragraph (2) of subdivision (g) of
Section 13386.
(C)
(D) The person agrees to maintain the ignition
interlock device as required under subdivision (g) of Section 23575.

(D)
(E) The person provides proof of financial
responsibility, as defined in Section 16430.
(E)
(F) An individual convicted of a violation of Section
23152 punishable under Section 23546 may also, at any time after
sentencing, petition the court for referral to an 18-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, or, if available in the county
of the person's residence or employment, a 30-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code. Unless good cause is shown, the
court shall order the referral.
(F)
(G) The person pays all applicable reinstatement or
reissue fees and any restriction fee required by the department.

(G)
(H) The person pays to the department a fee sufficient
to cover the costs of administration of this paragraph, as determined
by the department.
(H)
(I) The restriction shall remain in effect for the
period required in subdivision (f) of Section 23575.
(6) Except as provided in this paragraph, upon a conviction or
finding of a violation of Section 23152 punishable under
Section 23540, and if the person was found to be under the influence
of any drug or the combined influence of any drug and an alcoholic
beverage, the privilege shall be suspended for two years
23153 punishable under Section 23550.5 or 23566, the privilege
shall be revoked for a period of five years . The privilege may
not be reinstated until the person gives proof of financial
responsibility and gives proof satisfactory to the department of
successful completion of a driving-under-the-influence program
licensed pursuant to Section 11836 of the Health and Safety Code as
described in subdivision (b) of Section 23542
23568, or if available in the county of the person's residence or
employment, a 30-month driving-under-the-influence program
licensed pursuant to Section 11836 of the Health and Safety Code, or
a program specified in Section 8001 of the Penal Code . For
the purposes of this paragraph, enrollment in, participation in, and
completion of an approved program shall be subsequent to the date of
the current violation. Credit shall not be given to any program
activities completed prior to the date of the current violation. The
department shall advise the person that after completion of 12 months
of the suspension revocation period,
which may include credit for a suspension period served under
subdivision (c) of Section 13353.3, the person may apply to the
department for a restricted driver's license, subject to the
following conditions:
(A) The person has satisfactorily provided, subsequent to the
violation date of the current underlying conviction, either of the
following:
(i) Proof of enrollment in an 18-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code Completion of the
initial 12 months of a 30-month driving-under-the-influence program
licensed pursuant to Section 11836 of the Health and Safety Code, if
available in the county of the person's residence or employment, and
the person agrees, as a condition of the restriction, to continue
satisfacto ry participation in the 30-month
driving-under-the-influence program .
(ii) Proof of enrollment in a 30-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, if available in the county of
the person's residence or employment Completion
of the initial 12 months of an 18-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, if a 30-month program is
unavailable in the person's county of residence or employment .

(B) The person agrees, as a condition of the restriction, to
continue satisfactory participation in the program described in
subparagraph (A).
(C)
(B) The person submits the "Verification of
Installation" form described in paragraph (2) of subdivision (g) of
Section 13386.
(D)
(C) The person agrees to maintain the ignition
interlock device as required under subdivision (g) of Section 23575.

(E)
(D) The person provides proof of financial
responsibility, as defined in Section 16430.
(E) An individual convicted of a violation of Section 23153
punishable under Section 23566 may also, at any time after
sentencing, petition the court for referral to an 18-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, or, if available in the county
of the person's residence or employment, a 30-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code. Unless good cause is shown, the
court shall order the referral.
(F) The person pays all administrative fees
applicable reinstatement or reissue fees and any
restriction fee required by the department.
(G) The restriction shall remain in effect for the period required
in subdivision (f) of Section 23575.
(7) Except as provided in this paragraph, upon a conviction or
finding of a violation of Section 23152 punishable under Section
23546, and if the person was found to be under the influence
of any drug or the combined influence of any drug and an alcoholic
beverage 23550 or 23550.5, or of a violation of
Section 23123 punishable under Section 23550.5 , the privilege
shall be revoked for a period of three four
years. The privilege may shall
not be reinstated until the person files proof of financial
responsibility and gives proof satisfactory to the department of
successful completion of an 18-month driving-under-the-influence
program licensed pursuant to Section 11836 of the Health and Safety
Code , as described in subdivision (b) or (c) of Section
23548 , or, if available in the county of the person's
residence or employment, a 30-month driving-under-the-influence
program licensed pursuant to Section 11836 of the Health and Safety
Code, or a program specified in Section 8001 of the Penal Code. For
the purposes of this paragraph, enrollment in, participation in, and
completion of an approved program shall be subsequent to the date of
the current violation. Credit shall not be given to any program
activities completed prior to the date of the current violation. The
department shall advise the person that after completion of 12 months
of the revocation period, which may include credit for a suspension
period served under subdivision (c) of Section 13353.3, the person
may apply to the department for a restricted driver's license,
subject to the following conditions:
(A) The person has satisfactorily completed, subsequent to the
violation date of the current underlying conviction, either of the
following:
(i) The initial 12 months of an 18-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code.
(ii) The initial 12 months of a 30-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, if available in the county of
the person's residence or employment, and the person agrees, as a
condition of the restriction, to continue satisfactory participation
in the 30-month driving-under-the-influence program.
(B) The person submits the "Verification of Installation" form
described in paragraph (2) of subdivision (g) of Section 13386.
(C) The person agrees to maintain the ignition interlock device as
required under subdivision (g) of Section 23575.
(D) The person provides proof of financial responsibility, as
defined in Section 16430.
(E) An individual convicted of a violation of Section 23152
punishable under Section 23546 23550
may also, at any time after sentencing, petition the court for
referral to an 18-month driving-under-the-influence program licensed
pursuant to Section 11836 of the Health and Safety Code, or, if
available in the county of the person's residence or employment, a
30-month driving-under-the-influence program licensed pursuant to
Section 11836 of the Health and Safety Code. Unless good cause is
shown, the court shall order the referral.
(F) The person pays all applicable reinstatement or reissue fees
and any restriction fee required by the department.
(G) The restriction shall remain in effect for the period required
in subdivision (f) of Section 23575.
(8) Except as provided in this paragraph, upon a conviction or
finding of a violation of Section 23153 punishable under Section
23550.5 or 23566, the privilege shall be revoked for a period of five
years. The privilege may not be reinstated until the person gives
proof of financial responsibility and proof satisfactory to the
department of successful completion of one of the following programs:
an 18-month driving-under-the-influence program licensed pursuant to
Section 11836 of the Health and Safety Code, as described in
subdivision (b) of Section 23568 or, if available in the county of
the person's residence or employment, a 30-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, or a program specified in
Section 8001 of the Penal Code. For the purposes of this paragraph,
enrollment in, participation in, and completion of an approved
program shall be subsequent to the date of the current violation.
Credit shall not be given to any program activities completed prior
to the date of the current violation. The department shall advise the
person that after the completion of 12 months of the revocation
period, which may include credit for a suspension period served under
subdivision (c) of Section 13353.3, the person may apply to the
department for a restricted driver's license, subject to the
following conditions:
(A) The person has satisfactorily completed, subsequent to the
violation date of the current underlying conviction, either of the
following:
(i) The initial 12 months of a 30-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, if available in the county of
the person's residence or employment, and the person agrees, as a
condition of the restriction, to continue satisfactory participation
in the 30-month driving-under-the-influence program.

(ii) The initial 12 months of an 18-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, if a 30-month program is
unavailable in the person's county of residence or employment.

(B) The person submits the "Verification of Installation" form
described in paragraph (2) of subdivision (g) of Section 13386.

(C) The person agrees to maintain the ignition interlock device as
required under subdivision (g) of Section 23575.
(D) The person provides proof of financial responsibility, as
defined in Section 16430.
(E) An individual convicted of a violation of Section 23153
punishable under Section 23566 may also, at any time after
sentencing, petition the court for referral to an 18-month
driving-under-the-influence program or, if available in the county of
the person's residence or employment, a 30-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code. Unless good cause is shown, the
court shall order the referral.
(F) The person pays all applicable reinstatement or reissue fees
and any restriction fee required by the department.

(G) The restriction shall remain in effect for the period required
in subdivision (f) of Section 23575.
(9) Except as provided in this paragraph, upon a conviction or
finding of a violation of Section 23152 punishable under Section
23550 or 23550.5, or Section 23153 punishable under Section 23550.5
the privilege shall be revoked for a period of four years. The
privilege may not be reinstated until the person gives proof of
financial responsibility and proof satisfactory to the department of
successful completion of one of the following programs: an 18-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, or, if available in the county
of the person's residence or employment, a 30-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, or a program specified in
Section 8001 of the Penal Code. For the purposes of this paragraph,
enrollment in, participation in, and completion of an approved
program shall be subsequent to the date of the current violation.
Credit shall not be given to any program activities completed prior
to the date of the current violation. The department shall advise the
person that after the completion of 12 months of the revocation
period, which may include credit for a suspension period served under
subdivision (c) of Section 13353.3, the person may apply to the
department for a restricted driver's license, subject to the
following conditions:
(A) The person has
satisfactorily completed, subsequent to the violation date of the
current underlying conviction, either of the following:

(i) The initial 12 months of an 18-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code.
(ii) The initial 12 months of a 30-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, if available in the county of
the person's residence or employment, and the person agrees, as a
condition of the restriction, to continue satisfactory participation
in the 30-month driving-under-the-influence program.

(B) The person submits the "Verification of Installation" form
described in paragraph (2) of subdivision (g) of Section 13386.

(C) The person agrees to maintain the ignition interlock device as
required under subdivision (g) of Section 23575.
(D) The person provides proof of financial responsibility, as
defined in Section 16430.
(E) An individual convicted of a violation of Section 23152
punishable under Section 23550 may also, at any time after
sentencing, petition the court for referral to an 18-month
driving-under-the-influence program or, if available in the county of
the person's residence or employment, a 30-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code. Unless good cause is shown, the
court shall order the referral.
(F) The person pays all applicable reinstatement or reissue fees
and any restriction fee required by the department.

(G) The restriction shall remain in effect for the period required
in subdivision (f) of Section 23575.
(10) Upon a conviction or finding of a violation of subdivision
(a) of Section 23109 that is punishable under subdivision (e) of that
section or Section 23109.1, the privilege shall be suspended for a
period of 90 days to six months, if ordered by the court. The
privilege may not be reinstated until the person gives proof of
financial responsibility, as defined in Section 16430.

(11) Upon a conviction or finding of a violation of subdivision
(a) of Section 23109 that is punishable under subdivision (f) of that
section, the privilege shall be suspended for a period of six
months, if ordered by the court. The privilege may not be reinstated
until the person gives proof of financial responsibility, as defined
in Section 16430.
(8) Upon a conviction or finding of a violation of subdivision (a)
of Section 23109 that is punishable under subdivision (e) of that
section or Section 23109.1, the privilege shall be suspended for a
period of 90 days to six months, if ordered by the court. The
privilege shall not be reinstated until the person gives proof of
financial responsibility, as defined in Section 16430.
(9) Upon a conviction or finding of a violation of subdivision (a)
of Section 23109 that is punishable under subdivision (f) of that
section, the privilege shall be suspended for a period of six months,
if ordered by the court. The privilege shall not be reinstated until
the person gives proof of financial responsibility, as defined in
Section 16430.
(b) For the purpose of paragraphs (2) to (11)
(9) , inclusive, of subdivision (a), the finding of the
juvenile court judge, the juvenile hearing officer, or the referee of
a juvenile court of a commission of a violation of Section 23152 or
23153 or subdivision (a) of Section 23109 or Section 23109.1, as
specified in subdivision (a) of this section, is a conviction.
(c) A judge of a juvenile court, juvenile hearing officer, or
referee of a juvenile court shall immediately report the findings
specified in subdivision (a) to the department.
(d) A conviction of an offense in a state, territory, or
possession of the United States, the District of Columbia, the
Commonwealth of Puerto Rico, or Canada that, if committed in this
state, would be a violation of Section 23152, is a conviction of
Section 23152 for the purposes of this section, and a conviction of
an offense that, if committed in this state, would be a violation of
Section 23153, is a conviction of Section 23153 for the purposes of
this section. The department shall suspend or revoke the privilege to
operate a motor vehicle pursuant to this section upon receiving
notice of that conviction.
(e) For the purposes of the restriction conditions specified in
paragraphs (3) to (9) (7) , inclusive,
of subdivision (a), the department shall terminate the restriction
imposed pursuant to this section and shall suspend or revoke the
person's driving privilege upon receipt of notification from the
driving-under-the-influence program that the person has failed to
comply with the program requirements. The person's driving privilege
shall remain suspended or revoked for the remaining period of the
original suspension or revocation imposed under this section and
until all reinstatement requirements described in this section are
met.
(f) For the purposes of this section, completion of a program is
the following:
(1) Satisfactory completion of all program requirements approved
pursuant to program licensure, as evidenced by a certificate of
completion issued, under penalty of perjury, by the licensed program.

(2) Certification, under penalty of perjury, by the director of a
program specified in Section 8001 of the Penal Code, that the person
has completed a program specified in Section 8001 of the Penal Code.
(g) The holder of a commercial driver's license who was operating
a commercial motor vehicle, as defined in Section 15210, at the time
of a violation that resulted in a suspension or revocation of the
person's noncommercial driving privilege under this section is not
eligible for the restricted driver's license authorized under
paragraphs (3) to (9) (7) , inclusive,
of subdivision (a).
SEC. 2. Section 23109 of the Vehicle
Code is amended to read:
23109. (a) A person shall not engage in a motor vehicle speed
contest on a highway. As used in this section, a motor vehicle speed
contest includes a motor vehicle race against another vehicle, a
clock, or other timing device. For purposes of this section, an event
in which the time to cover a prescribed route of more than 20 miles
is measured, but where the vehicle does not exceed the speed limits,
is not a speed contest.
(b) A person shall not aid or abet in any motor vehicle speed
contest on any highway.
(c) A person shall not engage in a motor vehicle exhibition of
speed on a highway, and a person shall not aid or abet in a motor
vehicle exhibition of speed on any highway.
(d) A person shall not, for the purpose of facilitating or aiding
or as an incident to any motor vehicle speed contest or exhibition
upon a highway, in any manner obstruct or place a barricade or
obstruction or assist or participate in placing a barricade or
obstruction upon any highway.
(e) (1) A person convicted of a violation of subdivision (a) shall
be punished by imprisonment in a county jail for not less than 24
hours nor more than 90 days or by a fine of not less than three
hundred fifty-five dollars ($355) nor more than one thousand dollars
($1,000), or by both that fine and imprisonment. That person shall
also be required to perform 40 hours of community service. The court
may order the privilege to operate a motor vehicle suspended for 90
days to six months, as provided in paragraph (10)
(8) of subdivision (a) of Section 13352. The person's
privilege to operate a motor vehicle may be restricted for 90 days to
six months to necessary travel to and from that person's place of
employment and, if driving a motor vehicle is necessary to perform
the duties of the person's employment, restricted to driving in that
person's scope of employment. This subdivision does not interfere
with the court's power to grant probation in a suitable case.
(2) If a person is convicted of a violation of subdivision (a) and
that violation proximately causes bodily injury to a person other
than the driver, the person convicted shall be punished by
imprisonment in a county jail for not less than 30 days nor more than
six months or by a fine of not less than five hundred dollars ($500)
nor more than one thousand dollars ($1,000), or by both that fine
and imprisonment.
(f) (1) If a person is convicted of a violation of subdivision (a)
for an offense that occurred within five years of the date of a
prior offense that resulted in a conviction of a violation of
subdivision (a), that person shall be punished by imprisonment in a
county jail for not less than four days nor more than six months, and
by a fine of not less than five hundred dollars ($500) nor more than
one thousand dollars ($1,000).
(2) If the perpetration of the most recent offense within the
five-year period described in paragraph (1) proximately causes bodily
injury to a person other than the driver, a person convicted of that
second violation shall be imprisoned in a county jail for not less
than 30 days nor more than six months and by a fine of not less than
five hundred dollars ($500) nor more than one thousand dollars
($1,000).
(3) If the perpetration of the most recent offense within the
five-year period described in paragraph (1) proximately causes
serious bodily injury, as defined in paragraph (4) of subdivision (f)
of Section 243 of the Penal Code, to a person other than the driver,
a person convicted of that second violation shall be imprisoned in
the state prison, or in a county jail for not less than 30 days nor
more than one year, and by a fine of not less than five hundred
dollars ($500) nor more than one thousand dollars ($1,000).
(4) The court shall order the privilege to operate a motor vehicle
of a person convicted under paragraph (1), (2), or (3) suspended for
a period of six months, as provided in paragraph (11)
(9) of subdivision (a) of Section 13352. In lieu
of the suspension, the person's privilege to operate a motor vehicle
may be restricted for six months to necessary travel to and from
that person's place of employment and, if driving a motor vehicle is
necessary to perform the duties of the person's employment,
restricted to driving in that person's scope of employment.
(5) This subdivision does not interfere with the court's power to
grant probation in a suitable case.
(g) If the court grants probation to a person subject to
punishment under subdivision (f), in addition to subdivision (f) and
any other terms and conditions imposed by the court, which may
include a fine, the court shall impose as a condition of probation
that the person be confined in a county jail for not less than 48
hours nor more than six months. The court shall order the person's
privilege to operate a motor vehicle to be suspended for a period of
six months, as provided in paragraph (11) (9)
of subdivision (a) of Section 13352 or restricted pursuant to
subdivision (f).
(h) If a person is convicted of a violation of subdivision (a) and
the vehicle used in the violation is registered to that person, the
vehicle may be impounded at the registered owner's expense for not
less than one day nor more than 30 days.
(i) A person who violates subdivision (b), (c), or (d) shall upon
conviction of that violation be punished by imprisonment in a county
jail for not more than 90 days, by a fine of not more than five
hundred dollars ($500), or by both that fine and imprisonment.
(j) If a person's privilege to operate a motor vehicle is
restricted by a court pursuant to this section, the court shall
clearly mark the restriction and the dates of the restriction on that
person's driver's license and promptly notify the Department of
Motor Vehicles of the terms of the restriction in a manner prescribed
by the department. The Department of Motor Vehicles shall place that
restriction in the person's records in the Department of Motor
Vehicles and enter the restriction on a license subsequently issued
by the Department of Motor Vehicles to that person during the period
of the restriction.
(k) The court may order that a person convicted under this
section, who is to be punished by imprisonment in a county jail, be
imprisoned on days other than days of regular employment of the
person, as determined by the court.
( l ) This section shall be known and may be cited as
the Louis Friend Memorial Act.
SEC. 3. Section 23550 of the Vehicle
Code is amended to read:
23550. (a) If a person is convicted of a violation of Section
23152 and the offense occurred within 10 years of three or more
separate violations of Section 23103, as specified in Section
23103.5, or Section 23152 or 23153, or any combination thereof, that
resulted in convictions, that person shall be punished by
imprisonment in the state prison, or in a county jail for not less
than 180 days nor more than one year, and by a fine of not less than
three hundred ninety dollars ($390) nor more than one thousand
dollars ($1,000). The person's privilege to operate a motor vehicle
shall be revoked by the Department of Motor Vehicles pursuant to
paragraph (9) (7) of subdivision (a) of
Section 13352. The court shall require the person to surrender the
driver's license to the court in accordance with Section 13550.
(b) A person convicted of a violation of Section 23152 punishable
under this section shall be designated as a habitual traffic offender
for a period of three years, subsequent to the conviction. The
person shall be advised of this designation pursuant to subdivision
(b) of Section 13350.
SEC. 4. Section 23550.5 of the Vehicle
Code , as amended by Section 5 of Chapter 193 of the
Statutes of 2009, is amended to read:
23550.5. (a) A person is guilty of a public offense, punishable
by imprisonment in the state prison or confinement in a county jail
for not more than one year and by a fine of not less than three
hundred ninety dollars ($390) nor more than one thousand dollars
($1,000) if that person is convicted of a violation of Section 23152
or 23153, and the offense occurred within 10 years of any of the
following:
(1) A prior violation of Section 23152 that was punished as a
felony under Section 23550 or this section, or both, or under former
Section 23175 or former Section 23175.5, or both.
(2) A prior violation of Section 23153 that was punished as a
felony.
(3) A prior violation of paragraph (1) of subdivision (c) of
Section 192 of the Penal Code that was punished as a felony.
(b) Each person who, having previously been convicted of a
violation of subdivision (a) of Section 191.5 of the Penal Code, a
felony violation of subdivision (b) of Section 191.5, or a violation
of subdivision (a) of Section 192.5 of the Penal Code, is
subsequently convicted of a violation of Section 23152 or 23153 is
guilty of a public offense punishable by imprisonment in the state
prison or confinement in a county jail for not more than one year and
by a fine of not less than three hundred ninety dollars ($390) nor
more than one thousand dollars ($1,000).
(c) The privilege to operate a motor vehicle of a person convicted
of a violation that is punishable under subdivision (a) or (b) shall
be revoked by the department under paragraph (9)
(7) of subdivision (a) of Section 13352, unless paragraph
(8) (6) of subdivision (a) of Section
13352 is also applicable, in which case the privilege shall be
revoked under that provision. The court shall require the person to
surrender the driver's license to the court in accordance with
Section 13550.
(d) A person convicted of a violation of Section 23152 or 23153
that is punishable under this section shall be designated as a
habitual traffic offender for a period of three years, subsequent to
the conviction. The person shall be advised of this designation under
subdivision (b) of Section 13350.
SEC. 5. Section 23552 of the Vehicle
Code is amended to read:
23552. (a) (1) If the court grants probation to a person punished
under Section 23550, in addition to the provisions of Section 23600
and any other terms and conditions imposed by the court, the court
shall impose as conditions of probation that the person be confined
in a county jail for at least 180 days but not more than one year and
pay a fine of at least three hundred ninety dollars ($390) but not
more than one thousand dollars ($1,000).
(2) The person's privilege to operate a motor vehicle shall be
revoked by the department under paragraph (9)
(7) of subdivision (a) of Section 13352. The court shall
require the person to surrender the driver's license to the court in
accordance with Section 13550.
(b) In addition to subdivision (a), if the court grants probation
to any person punished under Section 23550, the court may order as a
condition of probation that the person participate, for at least 30
months subsequent to the underlying conviction and in a manner
satisfactory to the court, in a driving-under-the-influence program
licensed pursuant to Section 11836 of the Health and Safety Code. In
lieu of the minimum term of imprisonment in subdivision (a), the
court shall impose as a condition of probation under this subdivision
that the person be confined in the county jail for at least 30 days
but not more than one year. The court shall not order the treatment
prescribed by this subdivision unless the person makes a specific
request and shows good cause for the order, whether or not the person
has previously completed a treatment program pursuant to subdivision
(b) of Section 23542 or paragraph (4) of subdivision (b) of Section
23562. In order to enable all required persons to participate, each
person shall pay the program costs commensurate with the person's
ability to pay as determined pursuant to Section 11837.4 of the
Health and Safety Code. No condition of probation required pursuant
to this subdivision is a basis for reducing any other probation
requirement in this section or Section 23600 or for avoiding the
mandatory license revocation provisions of paragraph (9)
(7) of subdivision (a) of Section 13352.
(c) In addition to Section 23600 and subdivision (a), if the court
grants probation to any person punished under Section 23550 who has
not previously completed a treatment program pursuant to subdivision
(b) of Section 23542 or paragraph (4) of subdivision (b) of Section
23562, and unless the person is ordered to participate in, and
complete, a program under subdivision (b), the court shall impose as
a condition of probation that the person, subsequent to the date of
the current violation, enroll in and participate, for at least 18
months and in a manner satisfactory to the court, in a
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, as designated by the court. The
person shall complete the entire program subsequent to, and shall not
be given any credit for program activities completed prior to, the
date of the current violation. A person who has previously completed
a 12-month or 18-month driving-under-the-influence program licensed
pursuant to Section 11836 of the Health and Safety Code shall not be
eligible for referral pursuant to this subdivision unless a 30-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code is not available for referral in
the county of the person's residence or employment. A condition of
probation required pursuant to this subdivision is not a basis for
reducing any other probation requirement in this section or Section
23600 or for avoiding the mandatory license revocation provisions of
paragraph (9) (7) of subdivision (a) of
Section 13352.
(d) The court shall advise the person at the time of sentencing
that the driving privilege may not be restored until the person
provides proof satisfactory to the department of successful
completion of a driving-under-the-influence program of the length
required under this code that is licensed pursuant to Section 11836
of the Health and Safety Code.
SEC. 6. Section 23566 of the Vehicle
Code is amended to read:
23566. (a) If a person is convicted of a violation of Section
23153 and the offense occurred within 10 years of two or more
separate violations of Section 23103, as specified in Section
23103.5, or Section 23152 or 23153, or any combination of these
violations, that resulted in convictions, that person shall be
punished by imprisonment in the state prison for a term of two,
three, or four years and by a fine of not less than one thousand
fifteen dollars ($1,015) nor more than five thousand dollars
($5,000). The person's privilege to operate a motor vehicle shall be
revoked by the Department of Motor Vehicles pursuant to paragraph
(8) (6) of subdivision (a) of Section
13352. The court shall require the person to surrender the driver's
license to the court in accordance with Section 13550.
(b) If a person is convicted of a violation of Section 23153, and
the act or neglect proximately causes great bodily injury, as defined
in Section 12022.7 of the Penal Code, to any person other than the
driver, and the offense occurred within 10 years of two or more
separate violations of Section 23103, as specified in Section
23103.5, or Section 23152 or 23153, or any combination of these
violations, that resulted in convictions, that person shall be
punished by imprisonment in the state prison for a term of two,
three, or four years and by a fine of not less than one thousand
fifteen dollars ($1,015) nor more than five thousand dollars
($5,000). The person's privilege to operate a motor vehicle shall be
revoked by the Department of Motor Vehicles pursuant to paragraph
(8) (6) of subdivision (a) of Section
13352. The court shall require the person to surrender the driver's
license to the court in accordance with Section 13550.
(c) If a person is convicted under subdivision (b), and the
offense for which the person is convicted occurred within 10 years of
four or more separate violations of Section 23103, as specified in
Section 23103.5, or Section 23152 or 23153, or any combination of
these violations, that resulted in convictions, that person shall, in
addition and consecutive to the sentences imposed under subdivision
(b), be punished by an additional term of imprisonment in the state
prison for three years.
The enhancement allegation provided in this subdivision shall be
pleaded and proved as provided by law.
(d) A person convicted of Section 23153 punishable under this
section shall be designated as a habitual traffic offender for a
period of three years, subsequent to the conviction. The person shall
be advised of this designation pursuant to subdivision (b) of
Section 13350.
(e) A person confined in state prison under this section shall be
ordered by the court to participate in an alcohol or drug program, or
both, that is available at the prison during the person's
confinement. Completion of an alcohol or drug program under this
section does not meet the program completion requirement of paragraph
(8) (6) of subdivision (a) of Section
13352, unless the drug or alcohol program is licensed under Section
11836 of the Health and Safety Code, or is a program specified in
Section 8001 of the Penal Code.
SEC. 7. Section 23568 of the Vehicle
Code is amended to read:
23568. (a) If the court grants probation to a person punished
under Section 23566, in addition to the provisions of Section 23600
and any other terms and conditions imposed by the court, the court
shall impose as conditions of probation that the person be confined
in the county jail for at least one year, that the person pay a fine
of at least three hundred ninety dollars ($390) but not more than
five thousand dollars ($5,000), and that the person make restitution
or reparation pursuant to Section 1203.1 of the Penal Code. The
person's privilege to operate a motor vehicle shall be revoked by the
department under paragraph (8) (6) of
subdivision (a) of Section 13352. The court shall require the person
to surrender the driver's license to the court in accordance with
Section 13550.
(b) In addition to Section 23600 and subdivision (a), if the court
grants probation to a person punished under Section 23566, the court
shall impose as a condition of probation that the person enroll in
and complete, subsequent to the date of the underlying violation and
in a manner satisfactory to the court, an 18-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code or, if available in the county of
the person's residence or employment, a 30-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, as designated by the court. The
person shall complete the entire program subsequent to, and shall not
be given any credit for program activities completed prior to, the
date of the current violation. In lieu of the minimum term of
imprisonment in subdivision (a), the court shall impose as a minimum
condition of probation under this subdivision that the person be
confined in the county jail for at least 30 days but not more than
one year. Except as provided in this subdivision, if the court grants
probation under this section, the court shall order the treatment
prescribed by this subdivision, whether or not the person has
previously completed a treatment program pursuant to subdivision (b)
of Section 23542 or paragraph (4) of subdivision (b) of Section
23562. In order to enable all required persons to participate, each
person shall pay the program costs commensurate with the person's
ability to pay as determined pursuant to Section 11837.4 of the
Health and Safety Code. No condition of probation required pursuant
to this subdivision is a basis for reducing any other probation
requirement in this section or Section 23600 or for avoiding the
mandatory license revocation provisions of paragraph (8)
(6) of subdivision (a) of Section 13352.
(c) The court shall advise the person at the time of sentencing
that the driving privilege may not be restored until the person
provides proof satisfactory to the department of
successful completion of a
driving-under-the-influence program of the length required under this
code that is licensed pursuant to Section 11836 of the Health and
Safety Code.
SECTION 1. SEC. 8. Section 23597 is
added to the Vehicle Code, to read:
23597. (a) Notwithstanding Sections 13202.5, 13203, and 13352, a
court may order a 10-year revocation of the driver's license of a
person who has been convicted of three or more separate violations of
Section 23152 or 23153, the last of which is punishable under
Section 23546, 23550, 23550.5, or 23566. When making this order, the
court shall consider all of the following:
(1) The person's level of remorse for the acts.
(2) The period of time that has elapsed since the person's
previous convictions.
(3) The person's blood-alcohol level at the time of the violation.

(4) The person's participation in an alcohol treatment program.
(5) The person's risk to traffic or public safety.
(6) The person's ability to install a certified ignition interlock
device in each motor vehicle that he or she owns or operates.
(b) Upon receipt of a duly certified abstract of the record of the
court showing the court has ordered a 10-year revocation of a driver'
s license pursuant to this section, the department shall revoke the
person's driver's license for 10 years, except as provided in
subdivision (c).
(c) (1) Five years from the date of the last conviction of a
violation of Section 23152 or 23153, a person whose license was
revoked pursuant to subdivision (a) may apply to the department to
have his or her privilege to operate a motor vehicle reinstated,
subject to the condition that the person submits the "Verification of
Installation" form described in paragraph (2) of subdivision (h) of
Section 13386 and agrees to maintain the ignition interlock device as
required under subdivision (g) of Section 23575. Notwithstanding
Chapter 5 (commencing with Section 23700) or subdivision (f) of
Section 23575, the ignition interlock device shall remain on the
person's motor vehicle for two years following the reinstatement of
the person's driving privilege pursuant to this section.
(2) The department shall reinstate the person's license pursuant
to paragraph (1), if the person satisfies all of the following
conditions:
(A) The person was not convicted of any drug- or alcohol-related
offenses, under state law, during the driver's license revocation
period.
(B) The person successfully completed a
driving-under-the-influence program, licensed pursuant to Section
11836 of the Health and Safety Code, following the date of the last
conviction of a violation of Section 23152 or 23153.
(C) The person was not convicted of violating Section 14601,
14601.1, 14601.2, 14601.4, or 14601.5 during the driver's license
revocation period.
(3) The department shall immediately terminate the restriction
issued pursuant to this section and shall immediately revoke the
privilege to operate a motor vehicle of a person who attempts to
remove, bypass, or tamper with the device, who has the device removed
prior to the termination date of the restriction, or who fails three
or more times to comply with any requirement for the maintenance or
calibration of the ignition interlock device. The privilege shall
remain revoked for the remaining period of the original revocation
and until all reinstatement requirements are met.
(d) This section shall become operative on January 1, 2012.

SEC. 2. Section 23665 of the Vehicle Code is
amended to read:
23665. (a) If a person is convicted of a violation of Section
20001 and is sentenced to one year in a county jail or more than one
year in the state prison under Section 23540, 23542, 23546, 23548,
23550, 23550.5, 23552, 23554, 23556, 23558, 23560, 23562, 23566, or
23568, the court may postpone the revocation or suspension of the
person's driving privilege until the term of imprisonment is served.
(b) If a person is convicted of a violation of Section 23152 or
23153 and is sentenced to serve time in a county jail or state prison
under Section 23540, 23542, 23546, 23548, 23550, 23550.5, 23552,
23554, 23556, 23558, 23560, 23562, 23566, or 23568, the court shall
postpone the revocation or suspension of the person's driving
privilege until the term of imprisonment is served and shall notify
the department of the postponement.