California Vehicle Code VC 13353.1 – Refusal to Take Preliminary Alcohol Screening Test

13353.1. (a) If a person refuses an officer’s request to submit to, or fails to complete, a preliminary alcohol screening test pursuant to Section 13388, upon the receipt of the officer’s sworn statement, submitted pursuant to Section 13380, that the officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23136, and that the person had refused to submit to, or did not complete, the test after being requested by the officer, the department shall do one of the following:

1. Suspend the person’s privilege to operate a motor vehicle for a period of one year.
2. Revoke the person’s privilege to operate a motor vehicle for a period of two years if the refusal occurred within 10 years of either of the following:
   1. A separate violation of subdivision (a) of Section 23136, that resulted in a finding of a violation, or a separate violation, that resulted in a conviction, of Section 23103, as specified in Section 23103.5, of Section 23140, 23152, or 23153, of Section 191.5 of the Penal Code, or of paragraph (3) of subdivision (c) of Section 192 of that code.
   2. A suspension or revocation of the person’s privilege to operate a motor vehicle if that action was taken pursuant to this section or Section 13353 or 13353.2 for an offense that occurred on a separate occasion.
3. Revoke the person’s privilege to operate a motor vehicle for a period of three years if the refusal occurred within 10 years of any of the following:
   1. Two or more separate violations of subdivision (a) of Section 23136, that resulted in findings of violations, or two or more separate violations, that resulted in convictions, of Section 23103, as specified in Section 23103.5, of Section 23140, 23152, or 23153, of Section 191.5 of the Penal Code, or of paragraph (3) of subdivision (c) of Section 192 of that code, or any combination thereof.
   2. Two or more suspensions or revocations of the person’s privilege to operate a motor vehicle if those actions were taken pursuant to this section, or Section 13353 or 13353.2, for offenses that occurred on separate occasions.
   3. Any combination of two or more of the convictions or administrative suspensions or revocations described in subparagraph (A) or (B).

(b) For the purposes of this section, a conviction of any offense in any 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 23103, as specified in Section 23103.5, or Section 23140, 23152, or 23153, or Section 191.5 or paragraph (3) of subdivision (c) of Section 192 of the Penal Code, is a conviction of that particular section of the Vehicle or Penal Code.

(c) The notice of the order of suspension or revocation under this section shall be served on the person by the peace officer pursuant to Section 13388 and shall not become effective until 30 days after the person is served with that notice. The notice of the order of suspension or revocation shall be on a form provided by the department. If the notice of the order of suspension or revocation has not been served by the peace officer pursuant to Section 13388, the department immediately shall notify the person in writing of the action taken. The peace officer who serves the notice, or the department, if applicable, also shall provide, if the officer or department, as the case may be, determines that it is necessary to do so, the person with the appropriate non-English notice developed pursuant to subdivision (d) of Section 14100.

(d) Upon the receipt of the officer’s sworn statement, the department shall review the record. For the purposes of this section, the scope of the administrative review shall cover all of the following issues:

1. Whether the peace officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section23136.
2. Whether the person was lawfully detained.
3. Whether the person refused to submit to, or did not complete, the test after being requested to do so by a peace officer.

(e) The person may request an administrative hearing pursuant to Section 13558. Except as provided in subdivision (e) of Section 13558, the request for an administrative hearing does not stay the order of suspension or revocation.

Amended Sec. 3.10, Ch. 118, Stats. 1998. Effective January 1, 1999. Operative July 1, 1999.
Amended Sec. 19, Ch. 473, Stats. 2001. Effective January 1, 2002.
Amended Sec. 7, Ch. 550, Stats. 2004. Effective January 1, 2005.

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Note: Laws change frequently and thus the information provided should not be relied upon as legal advice. To be certain, contact a criminal defense attorney for a legal assistance.
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California Vehicle Code VC 13363 – Conviction in Another State

13363. (a) The department may, in its discretion, except as provided in Chapter 6 (commencing with Section 15000) of Division 6, of this code, suspend or revoke the privilege of any resident or nonresident to drive a motor vehicle in this State upon receiving notice of the conviction of the person in a state, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or the Dominion of Canada of an offense therein which, if committed in this State, would be grounds for the suspension or revocation of the privilege to operate a motor vehicle.

(b) Whenever any state, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or the Dominion of Canada reports the conviction of a violation in such place by a person licensed in this State, the department shall not give effect to such report pursuant to subdivision (a) of this section or Section 15023 unless the department is satisfied that the law of such other place pertaining to the conviction is substantially the same as the law of this State pertaining to such conviction and that the description of the violation from which the conviction arose, is sufficient and that the interpretation and enforcement of such law are substantially the same in such other place as they are in this State.

Amended Ch. 237, Stats. 1963. Effective September 20, 1963.

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California Vehicle Code VC 13376 – Denial, Revocation, Add or Suspension of Driver Certificates

13376. (a) ( )1 This section applies to the following certificates:

1. Schoolbus.
2. School pupil activity bus.
3. Youth bus.
4. General public paratransit vehicle.
5. Vehicle used for the transportation of developmentally disabled persons.

(b) (1) The department shall revoke a certificate listed in subdivision (a), ( )2 for three years if the certificate holder refuses to submit to a test for, fails to comply with the testing requirements for, or receives a positive test for a controlled substance, as specified in Part 382 (commencing with Section 382.101) of Title 49 of the Code of Federal Regulations and Section 34520. However, the department shall not revoke a certificate under this paragraph if the certificate holder is in compliance with any rehabilitation or return to duty program that is imposed by the employer that meets the controlled substances and alcohol use and testing requirements set forth in Part 382 (commencing with Section 382.101) of Title 49 of the Code of Federal Regulations. The driver shall be allowed to participate in a rehabilitation or return to duty program only once within a three-year period. The employer or program shall report any subsequent positive test result or drop from the program to the department on a form approved by the department.

(2) If an applicant refuses to submit to a test for, fails to comply with the testing requirements for, or receives a positive test ( )3 for a controlled substance, the department shall ( )4 refuse the application for a certificate listed in subdivision (a) for three years from the date of the confirmed positive test result.

(3) The carrier that requested the test shall report the refusal, failure to comply, or positive test result to the department not later than five days after receiving notification of the test result on a form approved by the department.

(4) The department shall maintain a record of any action taken for a refusal, failure to comply, or positive test result ( )5 in the driving record of the applicant or certificate holder for three years from the date of the ( )6 refusal, failure to comply, or positive test result.

(c) (1) The department may temporarily suspend a schoolbus, school pupil activity bus, youth bus, or general public paratransit driver certificate, or temporarily withhold issuance of a certificate to an applicant, if the holder or applicant is arrested for or charged with any sex offense, as defined in Section 44010 of the Education Code.

(2) Upon receipt of a notice of temporary suspension, or of the department’s intent to withhold issuance, of a certificate, the certificate holder or applicant may request a hearing within 10 days of the effective date of the department’s action.

(3) The department shall, upon request of the holder of, or applicant for, a certificate, within 10 working days of the receipt of the request, conduct a hearing on whether the public interest requires suspension or withholding of the certificate pursuant to paragraph (1).

(4) If the charge is dismissed or results in a finding of not guilty, the department shall immediately terminate the suspension or resume the application process, and shall expunge the suspension action taken pursuant to this subdivision from the record of the applicant or certificate holder.

(d) An applicant or holder of a certificate may reapply for a certificate whenever a felony or misdemeanor conviction is reversed or dismissed. A termination of probation and dismissal of charges pursuant to Section 1203.4 of the Penal Code or a dismissal of charges pursuant to Section 1203.4a of the Penal Code is not a dismissal for purposes of this section.

(e) The determination of the facts pursuant to this section is a civil matter which is independent of the determination of the person’s guilt or innocence, has no collateral estoppel effect on a subsequent criminal prosecution, and does not preclude the litigation of the same or similar facts in a criminal proceeding.

Amended Sec. 2, Ch. 738, Stats. 1997. Effective January 1, 1998.
Amended Sec. 7, Ch. 66, Stats. 2005. Effective January 1, 2006.
The 2005 amendment added the italicized material, and at the point(s) indicated, deleted the following:

1. "The department shall revoke a schoolbus, school pupil activity bus, youth bus, or general public paratransit driver certificate, and shall deny an application for that certificate, for any of the following causes:
   1. The applicant or certificate holder has been convicted of any sex offense as defined in Section 44010 of the Education Code.
   2. The applicant has, within the three years preceding the application date, either been convicted of a violation of Section 20001, 23103, 23104, 23152, or 23153, or has his or her driving privilege suspended, revoked, or placed on probation by the department for a cause involving the safe operation of a motor vehicle.
   3. The applicant has, within the two years preceding the application date, been convicted of any offense specified in Section 11361.5 of the Health and Safety Code.
   4. The applicant has failed to meet the prescribed testing requirements for issuance of the certificate."
2. "following an opportunity to challenge the validity of the testing described in this paragraph, for three years if the certificate holder has received a positive test result"
3. "result and has been provided an opportunity to challenge the validity of the test"
4. "deny"
5. "reported under paragraph (3)"
6. "department receives the report"

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Note: Laws change frequently and thus the information provided should not be relied upon as legal advice. To be certain, contact a criminal defense attorney for a legal assistance.
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California Vehicle Code VC 23596 – Vehicle Declared Nuisance: Sale of Vehicle

23596. (a) (1) Upon its own motion or upon motion of the prosecutor in a criminal action for a violation of any of the following offenses, the court with jurisdiction over the offense, notwithstanding Section 86 of the Code of Civil Procedure and any other provision of law otherwise prescribing the jurisdiction of the court based upon the value of the property involved, may declare the motor vehicle driven by the defendant to be a nuisance if the defendant is the registered owner of the vehicle:

1. A violation of Section 191.5 of, or paragraph (3) of subdivision (c) of Section 192 of, the Penal Code.
2. A violation of Section 23152 which occurred within seven years of two or more separate offenses of Section 191.5 of, or paragraph (3) of subdivision (c) of Section 192 of, the Penal Code, or Section 23152 or 23153, or any combination thereof, which resulted in convictions.
3. A violation of Section 23153 which occurred within seven years of one or more separate offenses of Section 191.5 of, or paragraph (3) of subdivision (c) of Section 192 of, the Penal Code, or Section 23152 or 23153, which resulted in convictions.

(2) The court or the prosecutor shall give notice of the motion to the defendant, and the court shall hold a hearing before a motor vehicle may be declared a nuisance under this section.

(b) Except as provided in subdivision (g), upon the conviction of the defendant and at the time of pronouncement of sentence, the court with jurisdiction over the offense shall order any vehicle declared to be a nuisance pursuant to subdivision (a) to be sold. Any vehicle ordered to be sold pursuant to this subdivision shall be surrendered to the sheriff of the county or the chief of police of the city in which the violation occurred. The officer to whom the vehicle is surrendered shall promptly ascertain from the department the names and addresses of all legal and registered owners of the vehicle and, within five days of receiving that information, shall send by certified mail a notice to all legal and registered owners of the vehicle other than the defendant, at the addresses obtained from the department, informing them that the vehicle has been declared a nuisance and will be sold or otherwise disposed of pursuant to this section and of the approximate date and location of the sale or other disposition. The notice shall also inform any legal owner of its right to conduct the sale pursuant to subdivision (c).

(c) Any legal owner who is a motor vehicle dealer, bank, credit union, acceptance corporation, or other licensed finance institution legally operating in this state, or the agent of that legal owner, may take possession and conduct the sale of the vehicle declared to be a nuisance if it notifies the officer to whom the vehicle is surrendered of its intent to conduct the sale within 15 days of the mailing of the notice pursuant to subdivision (b). Sale of the vehicle pursuant to this subdivision may be conducted at the time, in the manner, and on the notice usually given for the sale of repossessed or surrendered vehicles. The proceeds of any sale conducted by the legal owner shall be disposed of as provided in subdivision (e). A notice pursuant to this subdivision may be presented in person, by certified mail, by facsimile transmission, or by electronic mail. The agent of a legal owner acting pursuant to this subdivision shall be licensed, or exempt from licensure, pursuant to Chapter 11 (commencing with Section 7500) of Division 3 of the Business and Professions Code.

(d) If the legal owner or the agent of the legal owner does not notify the officer to whom the vehicle is surrendered of its intent to conduct the sale as provided in subdivision (c), the officer shall offer the vehicle for sale at public auction within 60 days of receiving the vehicle. At least 10 days but not more than 20 days prior to the sale, not counting the day of the sale, the officer shall give notice of the sale by advertising once in a newspaper of general circulation published in the city or county, as the case may be, in which the vehicle is located, which notice shall contain a description of the make, year, model, identification number, and license number of the vehicle and the date, time, and location of the sale. For motorcycles, the engine number shall also be included. If there is no newspaper of general circulation published in the county, notice shall be given by posting a notice of sale containing the information required by this subdivision in three of the most public places in the city or county in which the vehicle is located, and at the place where the vehicle is to be sold, for 10 consecutive days prior to and including the day of the sale.

(e) The proceeds of a sale conducted pursuant to this section shall be disposed of in the following priority:

1. To satisfy the costs of the sale, including costs incurred with respect to the taking and keeping of the vehicle pending sale.
2. To the legal owner in an amount to satisfy the indebtedness owed to the legal owner remaining as of the date of the sale, including accrued interest or finance charges and delinquency charges.
3. To the holder of any subordinate lien or encumbrance on the vehicle to satisfy any indebtedness so secured if written notification of demand is received before distribution of the proceeds is completed. The holder of a subordinate lien or encumbrance, if requested, shall reasonably furnish reasonable proof of its interest and, unless it does so on request, is not entitled to distribution pursuant to this paragraph.
4. To any other person who can establish an interest in the vehicle, including a community property interest, to the extent of his or her provable interest.
5. If the vehicle was forfeited as a result of a felony violation of Section 191.5 of the Penal Code, or of Section 23153 that resulted in serious bodily injury to any person other than the defendant, the balance, if any, to the city or county in which the violation occurred, to be deposited in its general fund.
6. Except as provided in paragraph (5), the balance, if any, to the city or county in which the violation occurred, to be expended for community-based adolescent substance abuse treatment services.

The person conducting the sale shall disburse the proceeds of the sale as provided in this subdivision, and provide a written accounting regarding the disposition to all persons entitled to or claiming a share of the proceeds, within 15 days after the sale is conducted.

(f) If the vehicle to be sold under this section is not of the type that can readily be sold to the public generally, the vehicle shall be destroyed or donated to an eleemosynary institution.

(g) No vehicle shall be sold pursuant to this section in either of the following circumstances:

1. The vehicle is stolen, unless the identity of the legal and registered owners of the vehicle cannot be reasonably ascertained.
2. The vehicle is owned by another, or there is a community property interest in the vehicle owned by a person other than the defendant and the vehicle is the only vehicle available to the defendant’s immediate family that may be operated on the highway with a class 3 or class 4 driver’s license.

(h) The Legislature finds and declares it to be the public policy of this state that no policy of insurance shall afford benefits that would alleviate the financial detriment suffered by any person as a direct or indirect result of a confiscation of a vehicle pursuant to this section.

Added Sec. 84, Ch. 118, Stats. 1998. Effective January 1, 1999. Operative July 1, 1999.
Amended Sec. 7, Ch. 582, Stats. 1998. Effective January 1, 1999.
Repealed Sec. 40.2 and added Sec. 40.4, Ch. 22, Stats. 1999, without change in text. Effective May 26, 1999. Operative July 1, 1999.

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Note: Laws change frequently and thus the information provided should not be relied upon as legal advice. To be certain, contact a criminal defense attorney for a legal assistance, www.NoCuffs.com is not liable for any misinformation that users obtain from using this site.

California Vehicle Code VC 23626 – Effect of Conviction in Another Jurisdiction

23626. A conviction of an offense in any state, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or the Dominion of Canada which, if committed in this state, would be a violation of Section 23152 or 23153 of this code, or Section 191.5 of, or paragraph (3) of subdivision (c) of Section 192 of, the Penal Code, is a conviction of Section 23152 or 23153 of this code, or Section 191.5 of, or paragraph (3) of subdivision (c) of Section 192 of, the Penal Code for the purposes of this code.

Added Sec. 84, Ch. 118, Stats. 1998. Effective January 1, 1999. Operative July 1, 1999.

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California Vehicle Code VC 23540 – Penalty: Second Offense Within Ten Years

23540. (a) If a person is convicted of a violation of Section 23152 and the offense occurred within 10 years of a separate violation of Section 23103, as specified in Section 23103.5, 23152, or 23153, that resulted in a conviction, that person shall be punished by imprisonment in the county jail for not less than 90 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 suspended by the department pursuant to paragraph (3) 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) Whenever, when considering the circumstances taken as a whole, the court determines that the person punished under this section would present a traffic safety or public safety risk if authorized to operate a motor vehicle during the period of suspension imposed under paragraph (3) of subdivision (a) of Section 13352, the court may disallow the issuance of a restricted driver’s license required under Section 13352.5.

(c) This section shall become operative on September 20, 2005.

Added Sec. 17.5, Ch. 551, Stats. 2004. Effective January 1, 2005. Operative September 20, 2005.

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California Vehicle Code VC 23217 – Legislative Declarations: Mandatory Minimum Penalties for Multiple Offenses

23217. The Legislature finds and declares that some repeat offenders of the prohibition against driving under the influence of alcohol or drugs, when they are addicted or when they have too much alcohol in their systems, may be escaping the intent of the Legislature to punish the offender with progressively greater severity if the offense is repeated one or more times within a 10-year period. This situation may occur when a conviction for a subsequent offense occurs before a conviction is obtained on an earlier offense.

The Legislature further finds and declares that the timing of court proceedings should not permit a person to avoid aggravated mandatory minimum penalties for multiple separate offenses occurring within a 10-year period. It is the intent of the Legislature to provide that a person be subject to enhanced mandatory minimum penalties for multiple offenses within a period of 10 years, regardless of whether the convictions are obtained in the same sequence as the offenses had been committed.

Nothing in this section requires consideration of judgment of conviction in a separate proceeding that is entered after the judgment in the present proceeding, except as it relates to violation of probation.

Nothing in this section or the amendments to Section 23540, 23546, 23550, 23560, 23566, 23622, or 23640 made by Chapter 1205 of the Statutes of 1984 affects the penalty for a violation of Section 23152 or 23153 occurring prior to January 1, 1985.

Amended Sec. 72.5, Ch. 118, Stats. 1998. Effective January 1, 1999. Operative July 1, 1999.
Amended Sec. 11, Ch. 550, Stats. 2004. Effective January 1, 2005.

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California Vehicle Code VC 23116 – Carrying Persons in the Back of a Motor Truck

23116. (a) No person driving a pickup truck or a flatbed motortruck on a highway shall transport any person in or on the back of the truck.

(b) No person shall ride in or on the back of a truck or flatbed motortruck being driven on a highway.

(c) Subdivisions (a) and (b) do not apply if the person in the back of the truck is secured with a restraint system. The restraint system shall meet or exceed the federal motor vehicle safety standards published in Sections 571.207, 571.209, and 571.210 of Title 49 of the Code of Federal Regulations.

(d) Subdivisions (a), (b), and (c) do not apply to any person transporting one or more persons in the back of a truck or flatbed motortruck owned by a farmer or rancher, if that vehicle is used exclusively within the boundaries of lands owned or managed by that farmer or rancher, including the incidental use of that vehicle on not more than one mile of highway between one part of the farm or ranch to another part of that farm or ranch.

(e) Subdivisions (a), (b), and (c) do not apply if the person in the back of the truck or the flatbed is being transported in an emergency response situation by a public agency or pursuant to the direction or authority of a public agency.

As used in this subdivision, "emergency response situation" means instances in which necessary measures are needed in order to prevent injury or death to persons or to prevent, confine, or mitigate damage or destruction to property.

(f) Subdivisions (a) and (b) do not apply if the person in the back of the truck or flatbed motortruck is being transported in a parade that is supervised by a law enforcement agency and the speed of the truck while in the parade does not exceed eight miles per hour.

Amended Ch. 895, Stats. 1993. Effective January 1, 1994.
Amended Sec. 35, Ch. 766, Stats. 1995. Effective January 1, 1996.
Amended Sec. 2, Ch. 308, Stats. 2000. Effective January 1, 2001.

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Note: Laws change frequently and thus the information provided should not be relied upon as legal advice. To be certain, contact a criminal defense attorney for a legal assistance.
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California Vehicle Code VC 21209 – Motor Vehicles and Motorized Bicycles in Bicycle Lanes

21209. (a) No person shall drive a motor vehicle in a bicycle lane established on a roadway pursuant to Section 21207 except as follows:

1. To park where parking is permitted.
2. To enter or leave the roadway.
3. To prepare for a turn within a distance of 200 feet from the intersection.

(b) This section does not prohibit the use of a motorized bicycle in a bicycle lane, pursuant to Section 21207.5, at a speed no greater than is reasonable or prudent, having due regard for visibility, traffic conditions, and the condition of the roadway surface of the bicycle lane, and in a manner which does not endanger the safety of bicyclists.

Amended Ch. 262, Stats. 1988. Effective January 1, 1989.

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Note: Laws change frequently and thus the information provided should not be relied upon as legal advice. To be certain, contact a criminal defense attorney for a legal assistance.
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California DUI Field Sobriety Tests

These are not really tests at all; rather, they are physical agility exercises that are subjective in nature, and designed for the accused to fail.

Most people don’t realize that these tests are optional… and the officers who give them sure won’t tell you, but they are. You are perfectly free to politely refuse to take the Field Sobriety Tests in their entirety.

These “tests” may include the following:

Nystagmus: The officer will position an object (such as a pen) 12 inches away from the driver’s face, and move the object from side to side while watching the subject’s eyes. The officer is looking for involuntary jerking or trembling of the eyeball. This jerking or trembling may be a sign that the subject has consumed an intoxicant.

Walk and Turn: The subject takes nine heel-to-toe steps along a line, turns, and takes nine heel-to-toe steps back. The officer is looking to see if the accused can keep their balance, follow instructions, begin early, stop during the test, leave space between heel and toe, step off the line, or lose balance while turning.

Standing on One Leg: The accused is instructed to stand with heels together, arms at the side, then raise one leg six inches off the ground while counting out loud until the officer allows the accused to stop. The officer is looking for raising of the arms, swaying, hopping, putting the foot down, inability to stand still, body tremors, muscle tension, and any statements made by the accused during the test.

Finger to Nose: This test requires the suspect to place his or her feet together while standing straight with eyes closed, and bring the index finger to the nose as ordered by the officer. The officer is looking for body sway, body tremors, eyelid tremors, muscle tension, or any statements made by the accused to support a finding of intoxication.

The Rhomberg Balance Test: The accused assumes a position of attention, closes their eyes, tilts their head back, and estimates 30 seconds. The officer is looking for the inability to stand still or steady, body or eyelid tremors, opening eyes to maintain balance, swaying (either front to back or side to side), muscle tension, or statements made by the accused. The officer is also testing the suspect’s internal clock, which will usually be slow in the case of alcohol or depressants, or fast in the case of stimulants.

Other Field Sobriety Tests include finger tapping, hand clapping, counting backwards, or reciting the alphabet.

These are supposedly tests that are designed to check “divided attention”, a critical skill in operating a motor vehicle. However, there are many people who, for many innocent reasons, cannot perform these tests to the officer’s satisfaction, and pay the price with a DUI arrest.

Preliminary Alcohol Screening Test (PAS Test): One of the most dangerous Field Sobriety Tests is the Preliminary Alcohol Screening test, also called the PAS test. This is a portable breath test to determine the presence of alcohol. The officer is supposed to advise the suspect that the test is voluntary. These PAS tests do not comply with Title 17 of the California Code of Regulations and the results should therefore not be allowed into court.

The most important thing to know about the Field Sobriety Tests is that a skilled California DUI defense lawyer will know how to handle them in court.