DUI Proficiency Quiz

[SOME RANDOM SAMPLES OF THE INTERACTION BETWEEN A CRIMINAL CASE DISPOSITION AND A DMV ADMINISTRATIVE SUSPENSION]

1. Your client was arrested, charged, and convicted of a first offense DUI violation with no unusual circumstances. He has a clean DMV driving record. The court agrees to impose the minimum sentence required by law and will leave it up to your client as to whether or not he wants probation. After explaining the standard terms of probation for a first offense conviction, your client states, "I don't want to be on probation and I don't want to go to DUI school, so I'll just take the six-month license suspension and get it over with." What do you tell him?

2. You successfully negotiate with the District Attorney a reduction of a the charged DUI offense to a "wet" reckless driving charge, and the court indicates it will impose its minimum sentence. At the time of pronouncement of judgement, the courts states, "I must sentence you to complete the 12-hour educational component of a Level I DUI school; however, in March, 2000, all of the judges have received a Wet Reckless Special Bulletin from DMV which seems to state that if I don't impose a 30-hour Level I DUI school as a condition of probation you will lose your driver's license. Do you want me to order the 12-hour or the 30-hour program?" What do you advise your client?

3. Defendant is arrested and charged with a first offense DUI violation. In your initial interview, he indicates that he has never been convicted of a DUI or related offense. However, he also states that approximately four years earlier, "I was arrested for a DUI, but the charges were dropped and I didn't have to go to court." The DMV printout shows no prior convictions for any offense, but reveals a four month Admin Per Se suspension in 1996, and a currently valid license. He asks: "If I plead guilty will I still be able to drive?" What do you tell him?

4. Defendant was arrested for a DUI and the results of his breath test revealed a .08 grams percent determination. You interview him in custody and determine that he was arrested in his legally parked car after being aroused from a sound alcohol induced sleep. On the scheduled date for arraignment, the District Attorney advises that he does not intend to file charges and the Defendant is discharged. Besides grinning broadly, what else should/must you do on your client's behalf?

5. You are in a jurisdiction where, for reasons best known only to the prosecution, the District Attorney "requires" that, to receive the benefits of a "standard" first offense offer, your client must plead guilty to the (b) count. Your assessment of the case is that success at trial is highly unlikely, largely as a result of a .15 blood test. Advised of the offer, your client asks, "What difference does it make whether I plead to the (a) or (b) count if the sentence is the same?" What do you advise him? What can you do in response to the District Attorney's "policy"?

6. Defendant is charged with a third offense VC ¤23152(a) and an alleged "refusal" enhancement under VC ¤23578. He explains to you that "I'm going to lose my license anyway and I just want to get it over with". Defendant does not want to go to trial. Upon reviewing the police report it appears that the Defendant performed miserably on all the field sobriety tests, including his handwritten recitation of the alphabet which is illegible, omits several letters, and has several additional letters out of sequence. He was stopped when his vehicle was observed weaving across lanes going the wrong way on a one way street. He admitted his intoxication and refused to take a chemical test stating, "You don't need no test to prove me drunk." The District Attorney agrees to drop the enhancement and offers either count with a minimum sentence. If accepted, what effect will this have on your client's right to drive in the future? Would your decision be any different if a blood alcohol test had been performed, revealed a .09 BAC, and alternate VC ¤23152(a) and (b) counts were charged?

7. Defendant is charged with a first offense violation of VC ¤23152(a)/(b). Unknown to the court and District Attorney, Defendant has suffered a prior conviction within seven years of his arrest for the new offense. To take advantage of the situation, Defendant quickly pleads guilty to VC ¤23152(a), the (b) count is dismissed, and a "standard" minimum sentence is imposed. Two weeks later, Defendant receives notice from DMV that his license has been suspended for a period of two years. Is the suspension proper? What can you do about it?

8. Defendant is charged with a second offense violation of VC ¤23152(a)/(b). By astute plea bargaining, you convince the District Attorney and court to strike the prior pursuant to VC ¤23635 to permit a guilty plea as a first offense to VC ¤23152(a). The (b) count is dismissed, and the Defendant is given a "standard" first offense sentence. Two weeks later, Defendant receives notice from DMV that his license has been suspended for a period of two years. Is the suspension proper? What could you have done differently in negotiations with the District Attorney? What can you do now?

9. In the course of your day, a number of your DUI cases are resolved by you through negotiation. Among them are several pleas of no contest to second offense DUI charges. Various respective sentences are imposed, but none involve a requirement that your second offender clients install an ignition interlock device. After a late meal of beef stew, fried bread, and Bavarian chocolate cake, you dose off only to awake in a cold sweat with the thought that somehow you overlooked a necessary license saving requirement in negotiating the sentencing of your second offender clients. What, if anything, is it that you may have overlooked with respect to the current IID requirements?

10. A tough sentencing judge recommends (or orders) the suspension resulting from a second conviction to run consecutive to the Admin Per Se determination of a .08+ BAC arising out of the same arrest. What do you tell your client?

11. Your client engaged in a heated argument with an old adversary and when the smoke clears he is charged with PC ¤245 (the deadly weapon being his automobile, allegedly used to run down the victim), felony reckless driving [VC ¤23104] and felony hit/run [VC ¤20001]. Your client has a clean driving record. The District Attorney offers "felony with six months county jail top - you pick the count". Your client indicates that as the sentence is going to be the same his primary concern is whether he will lose his license. What do you tell your client?

12. Defendant, who has been driving for more than 20 years with a clean driving record, ran into a streak of bad luck recently. In January, he got a speeding ticket and, in February, he was involved in an accident which resulted in his arrest for drunk driving. A blood test revealed a .11 blood alcohol level. To save your client's license, you successfully negotiate a "dry reckless" as a stipulated lesser offense of the charged first offense DUI. Two weeks later, Defendant is notified by DMV that his license has been suspended for a period of six months. Is the suspension proper? What can you do about it? What should you have done about it before entering the plea? Would your answer be any different if the speeding ticket is still pending?

13. Defendant, a 26-year-old male, is charged with a first offense DUI. Upon reviewing the DMV printout of his driving record, it's revealed that Defendant had been convicted of a S.L.I.O. "dry" reckless two years earlier (suffered following an accident and DUI arrest) and had no other violations except an open container charge [VC ¤23222(a)] to which he pled guilty to last year. A blood alcohol test result of .09 is reported, and the District Attorney offers a "wet reckless". Defendant explains that the only thing that matters to him is that he keep his driver's license. Should he take the offer? What should you tell him?

14. At the time of your client's arrest for a first offense DUI, he is given notice of the administrative suspension of his driving privilege for a period of four months. He is in custody and arraigned the following day on a no time waiver basis. You take the matter to jury trial within 30 days and your client is found guilty of VC ¤23152(a) and not guilty of VC ¤23152(b). Following his acquittal of the (b) section, you read him the provisions of VC ¤13353.2(e), but a month later he angrily confronts you with information that he was just arrested for driving on a suspended license. What went wrong? How do you correct it?

15. Your client has several outstanding delinquent traffic tickets, has failed to pay a fine on an outstanding traffic ticket conviction, and failed to provide proof of financial responsibility in the accident situation which led to the DUI arrest. You represent him only on the DUI case and, notwithstanding his conviction, you are successful in avoiding his CDL suspension by obtaining a court imposed restriction of your client's driving privilege arising out of the DUI case. DMV notifies your client that they will not honor the restriction. Is this proper? What can you do about it?

16. You client is willing to plead guilty or no contest to his charged DUI offense, but strangely he actually reads the waiver of rights form provided by the court and points out that the form states that he may have his conviction set aside at the end of his probation pursuant to PC ¤1203.4. What do you tell him? Would your answer be any different if charges were not filed and a Certificate of Detention letter was obtained on his behalf pursuant to PC ¤851.6?

17. Your client, a 20-year-old single parent is arrested for DUI. She claims that her boyfriend was driving, and in an unsuccessful 1538.5 motion, evidence surfaces to support her claim. The District Attorney offers a PC ¤647(f) alcohol charge with probation and community service. She accepts the offer and is sentenced according to the plea bargain. Six weeks later, DMV notifies her that her license has been suspended for one year. What could you have done to prevent it? What can you do now?

Bonus Question

Your client is arrested for DUI when he is found outside his car at the scene of a single car traffic accident in an isolated part of the county. In a signed statement, properly Mirandized, he admits to being the driver, admits to consuming a "fifth of Bourbon", fails all of his field sobriety tests miserably, has a blood test reading of .33 grams percent and PAS reading of .36 BAC. In your initial interview he asks, "Should I ask for a hearing before DMV or is it a waste of time?" What do you tell him and why?

SCORING

DUI PROFICIENCY QUIZ ANSWERS

1. This hypothetical points out the distinction between the respective actions taken by the Department of Motor Vehicles (DMV) and the court. Parenthetically, your client has not mentioned any Admin Per Se action initiated by DMV which undoubtedly resulted in a four-month suspension of his driving privilege under VC ¤13353.3(b)(1), but any such administrative action will run concurrently with the six-month license suspension resulting from your client's determination to reject probation and with it, the illusory DUI school option. [VC ¤13353.3(c)]

ANSWER: Although the minimum sentencing requirements imposed on the court pursuant to VC ¤23536 et. seq. ostensibly permit avoidance of the requirement for the first offender DUI school [cf. H & S ¤11836] (an option also reflected in the sentencing alternative admonitions in those plea waiver forms utilized by most courts), VC ¤13352(a)(1) extends indefinitely the six-month license suspension resulting from the first offense conviction until after reinstatement fees have been paid to DMV, and both proof of insurance [SR-22] and "proof satisfactory to the department of successful completion of a [30-hour DUI] program" has been filed with the DMV. Consequently, your client should be advised that if his purpose for rejecting probation is to avoid the DUI school, such a decision is short sighted in that he will lose his driver's license permanently unless he completes the school. NOTE: Although a six month suspension from the conviction will run concurrently with the APS suspension arising out of the same incident (or concurrently with the optional modified first "offense" APS 30 day suspension/5 month restriction permitted drivers over the age of 21 years [SEE VC ¤13353.7]), the 90 day restriction arising out of the first offense conviction with probation and DUI school will run consecutive to the four month APS suspension or alternative APS 30 day suspension/5 month restriction [VC ¤23538(a)(3)(A)].

2. The DMV is fond of sending obtuse and frequently misleading "memos" to the courts (as well as to its Regional administrators and Driver Safety hearing officers). The referenced memo of March, 2000, could not have been drafted more inarticulately. Most courts are wholly unaware of the Admin Per Se options which arise following a DUI arrest, and as a consequence, confusion is often generated between the potential for the respective administrative and judicial sanctions imposed -- a situation admirably evidenced by the referenced Wet Reckless Special Bulletin. NOTE: Some additional random thoughts: (i) There are additional considerations on sentencing beside CDL suspensions. For example, if probation is rejected or denied, a five day county jail sentence is mandated [VC ¤23103(c)]; (ii) The court may be persuaded to find, on the record, "compelling circumstances" not to order the 12 hour educational component [VC ¤23103.5(e)], and if such a finding is made, no DMV suspension is authorized; (iii) What if your client violates the order to attend to 12 hour school? The Court may suspend the client's CDL for 30 days (first offense), 60 days (second offense), or six months for a third or subsequent reckless ("wet" or "dry") driving violation [VC ¤13200]; DMV does not, however, get involved unless the court suspends. No SR-22 filling is triggered by the conviction or 12 hour DUI school order. Caution: In a particularly outrageous factual scenario where the driving truly was "reckless" or where the police affirmatively notify DMV of facts which warrant an investigation, DMV is empowered to conduct a "paper" investigation and may suspend under VC ¤13800(d) independently from the court orders or the underlying criminal case.

ANSWER: Initially, it should be pointed out that the court need not place a Defendant convicted of reckless driving (whether "dry" or "wet") on probation. Some courts impose probation out of habit, others out of concern for recidivist conduct, and others out of ignorance. If probation is not imposed, there is no requirement for the imposition of either the Level I DUI school or the 12-hour educational component of it VC ¤23103.5(e). If probation is imposed, the only requirement is for the 12-hour educational component [SEE H & S ¤11836 et seq.]. If your client has suffered the Administrative Per Se suspension for a second or subsequent offense, or has suffered an Admin Per Se suspension for a refusal to take or complete a chemical test, or has accepted the full four-month Admin Per Se suspension for a first offense DUI, there is absolutely no reason why he should not opt for the minimum 12-hour short DUI school. If, however, this is your client's first DUI offense and his case involves a completed chemical test, and he wishes to take advantage of the optional 30-day suspension plus five-month restricted license alternative to the four-month outright Admin Per Se suspension, then he should request the court to impose the full 30-hour Level I DUI school. Effectively, what DMV intends by the memo is that it will not accept a 12-hour school to satisfy the condition precedent for the Admin Per Se first offense option under VC ¤13353.7(a). SEE H & S ¤11837.3.

3. This question focuses on the importance of reviewing the DMV printout for your client whenever he is charged with a DUI offense. The question also emphasizes the distinction in the concept of "priorability" between DUI convictions and Admin Per Se suspension orders. Whether or not your client's driving privilege will be suspended as a result of his most recent criminal conviction depends entirely upon the number of convictions arising out of DUI arrests occurring within a consecutive seven-year period. The effect of a DUI conviction on driving privilege is found principally in VC ¤13352 and is governed by the minimum sentencing requirements in e.g. VC ¤¤23536/23538, VC ¤¤23540/23542, ¤23546, etc.. For the purposes of an Admin Per Se suspension, whether it is a "first offense" or "subsequent offense" is governed not only by the number of prior criminal convictions, but also by the number of prior administrative suspensions ordered within the previous seven year period. VC ¤13353.2(a)-(b)/VC ¤13353.3(b)(1)-(2) [chemical test cases] and ¤13353(a)(2)(B)/(a)(3)(B)-(C) [refusal cases].

ANSWER: Unless your client successfully contests through the hearing process provided under VC ¤13557/¤13558 the current Admin Per Se suspension, his guilty or no contest plea to the first offense DUI charge will eliminate the possibility of an acquittal of the (b) count and his license will be suspended outright [no restriction permitted] for a period of one year effective 30 days from the date of his arrest. If he attends the first offender DUI School as a part of his sentencing, the one year period of suspension initiated by DMV will not be effected in any way; however, if he fails to complete the first offender DUI School during the one-year period of suspension, that administrative suspension will be extended until proof of completion is filed with the Department. NOTE: If your client fails to comply with the court ordered DUI School in satisfaction of the mandated condition of probation pursuant to VC ¤23538(b) or your client is not placed on probation and consequently no DUI school is ordered by the court, DMV will impose a minimum period of six months license suspension [VC ¤¤23538(c)(1)/13352(a)(1)]. This six month minimum suspension will be further extended by any failure to file the mandated SR-22 [proof of insurance]. As the example posed involves a first offense conviction, all suspensions imposed by the court and/or DMV will run concurrently to the extent the effective dates for the initiation of the suspension overlap. SEE VC ¤13353.3(c). NOTE: The one year suspension imposed administratively by the DMV under VC ¤13353.3(b)(2)/¤13353.2(a) or any administrative suspension after the first six months of the court ordered suspension, will result in a ¤14601.5 [not a ¤14601.2] situation if he continues to drive. This is particularly significant because a conviction of VC ¤14601.2(h) triggers the requirement for a court ordered ignition interlock device. [VC ¤23575].

4. Effective January 1, 1994, VC ¤13353.2(e) was amended to permit a "second bite at the apple" following an Admin Per Se suspension where a chemical test was obtained and the District Attorney elected not to file charges. The declination to prosecute will not be automatically reported to DMV, but even if it were to be reported the Department will ignore the dismissal (on the basis of Gikas v. Zolin (1993) 6 C.4th 841, 25 Cal.Rptr.2d 500).

ANSWER: You should explain to your client the provisions of VC ¤13353.2(e)/(f) and the availability of the review procedure which must be affirmatively initiated by, or on behalf of your client within one year from the date of his arrest. You should also bring to his attention that he can get a form DS 702 from the DMV which he must then take to the District Attorney to complete. This advice is especially beneficial if your client failed to ask for an Admin Per Se hearing within the first 10 days following his arrest. Private attorneys, this author believes, as a part of their representation in the criminal case, should assist their clients in having the District Attorney fill out the form "correctly" i.e. in a way in which it will be most persuasive to the Department. As a favorite method used by DMV hearing officers to avoid a set aside based upon the criminal prosecutor's declination to prosecute is to "find" that such decision by the DA was based exclusively or primarily upon the different burdens of proof in the criminal vs. DMV proceedings, care must be taken to insure that the DA executing the DS 702 both adds a specific factual basis for his declination and makes clear that such decision would be the same if his burden was simply by a preponderance of the evidence. When it is completed, mail the form with a cover letter demanding review to DMV ATTN: Driver Safety Appeals Unit, MS-J256, P.O. Box 942890, Sacramento, CA 95818, or it may be hand delivered to Driver Safety Appeals at 2570 - 24th Street, Sacramento, California. CAUTION: The obligation on the District Attorney to complete the DS 702 upon timely request (within one year of the date of arrest [VC ¤13353.2(e)]), is mandatory. The situation is less clear where charges are filed, but "are subsequently dismissed by the court because of an insufficiency of evidence" [id.]. Many DAs will voluntarily fill out the form anyway, but this author does not believe the DA has an obligation to do so once the charges are filed by it even if the DA subsequently dismisses the case (e.g. upon the court's granting a 1538.5 motion, a key witness disappears, etc.). As a practical matter, DMV practice as well statutory authority makes the issue moot because the second hearing authorized under VC ¤13353.2(e)/(f) is permitted in only two narrowly limited situations: First, if the DA does not file a complaint at all, in which case the DA completed form DS 702 must be obtained and filed with the Department; or second, the complaint is filed, but it is subsequently dismissed by the court, not simply "in the interests of justice", but "for insufficiency of evidence" [COMPARE e.g. PC ¤¤1385, 1381, 1382, 1383], in which case a transcript of the court's order and the reasons given by the court must be obtained and filed with DMV . Therefore, in the case of a dismissal by the court, care must be given to insure that the court details its reasons in both factual and legal (constitutional) terms on the record. SEE ALSO answer to Question 5, infra.

5. First, you should determine whether or not your client has suffered an Admin Per Se suspension. In all but a limited number of situations where "good cause" may be shown, (e.g. ineffective service by DMV under VC ¤13353.2(b), defective personal service [id.; VC ¤13382 or VC ¤23612(f); VC ¤13388 (PAS test for minor)], inadequate notice form [DS 360 or DS 367-2; VC ¤13353.2(c)]), after 30 days have elapsed from the date of service of the Admin Per Se order of suspension, the administrative suspension will become final. VC ¤13353.3(a) & VC ¤13353.1(b) [Admin Per Se suspension commences 30 days following service of notice]; Mackey v. Montrym (1979) 443 U.S. 1, 99 S.Ct. 2612 [timely pre-deprivation hearing must be permitted where vested constitutional right is involved]; Berlinghieri v. DMV (1983) 33 C.3d 392, 188 Cal.Rptr. 891 [driving is a "right" not a privilege]; Hernandez v. DMV (1981) 30 C.3d 70, 177 Cal.Rptr. 566 [a license once issued, is "vested"]; cf. VC ¤14100(a); VC ¤13558(b)/(d) [licensee must act within 10 days of notice to ensure hearing before suspension]. Unless a hearing has been requested within 10 days (whether or not a "stay" pursuant to VC ¤13558(e) is in effect), the finality of the administrative suspension order is unaffected by the disposition reached in the underlying criminal case out of which the suspension arose. If, however, the suspension order is still subject to the right of hearing (e.g. it has been scheduled, but not yet heard) the factors set forth below must be considered in negotiating a plea.

The administrative determination to suspend or not to suspend has no legal ("collateral estoppel") or binding effect upon the criminal prosecution out of which the suspension arose. VC ¤13353.2 (e) [for issues involved in Admin Per Se hearing, SEE VC ¤13558/¤13557; Note, whether or not your client was "drunk", "impaired", or "under the influence" are not issues in an Admin Per Se proceeding].

A criminal conviction in the underlying case (whether secured by plea or verdict) will have no direct effect on the outcome of any subsequent Admin Per Se proceeding and therefor a conviction for either VC ¤23152(a) or (b) is immaterial. However, although the Department has neither the resources nor acumen to obtain transcripts of testimony or, more significantly, the Waiver of Rights form required upon a conviction by plea, and has seldom sought such information, statements or admissions made by your client are admissible in an Admin Per Se hearing. Consequently, your client's admissions inherent in a "guilty" plea to the (b) count effectively establish preponderant evidence to support the Admin Per Se suspension order. A "guilty" plea to the (a) count will likewise establish preponderant evidence to support "driving", but unless this is a basis for challenging the Admin Per Se suspension order, such an admission would do no damage. A judgment or finding of guilt to either the (a) or (b) counts predicated on a "no contest" plea and "stipulated factual basis" for such plea, may not be used to support the Admin Per Se suspension order. County of Los Angeles v. Civil Service Commission (1995) 39 Cal.App.4th 620, 46 Cal.Rptr.2d 256; Kirby v. Alcoholic Beverage Control Appeal Board (1969) 3 Cal.App.3d 209, 83 Cal.Rptr. 89; Grannis v. Board of Medical Examiners (1971) 19 Cal.App.3d 551, 96 Cal.Rptr. 863; cf. PC ¤1016(3). A no contest plea to a felony, is the same as "a plea of guilty for all purposes" [id.; EC ¤1300], but it is the underlying admission(s) which is the prime consideration.

Finally, because "an acquittal" of the (b) count, once you or your client has reported it to DMV, will automatically result in a "set aside" order and terminate the Admin Per Se license suspension [VC ¤13353.2(e); and such acquittal may be predicated on stipulations by the parties, a judgment obtained upon court review of the police reports submitted, or by any method designed to secure a "judicial determination in [your client's] favor of one or more of the factual elements" under VC ¤13557 [Gikas v. Zolin (1993) 6 C.4th 841, 25 Cal.Rptr.2d 500], alternatives to an outright plea or traditional trial should be attempted in any non-refusal case. For example, (i) in a blood or urine case, seek to obtain the District Attorney's consent to waive jury and submit the matter on the police report without the lab results of the chemical test (in a breath test case, strike those portions of the report which make reference to the test result); (ii) by prearrangement with the District Attorney waive jury and when the officer is called object on foundational grounds to the introduction of the test results per People v. Adams (1976) 59 Cal.App.3d 559, 131 Cal.Rptr. 190; (iii) prepare in advance a written "stipulation of fact", have it executed by the District Attorney and submit the case on that stipulated set of facts; or (iv) obtain agreement with the District Attorney to waive jury and have the case submitted on the basis of testimony produced at a PC ¤1538.5 hearing.

ANSWER: It is this author's belief that a plea of guilty to the (b) count is never wise and should always be resisted (one notable exception may arise if your client is an out of state resident and the state in which he is licensed has an equivalent DUI law, but is one of those remaining jurisdictions which have not yet adopted a .08 per se offense). A "no contest" plea to either count should not pose any problem for your client in a subsequent Admin Per Se hearing, but care should be taken to ensure that your client makes no admissions with respect to entering that plea -- i.e. carefully check the Waiver of Rights form used in your jurisdiction and phrase your stipulation carefully.

Several steps may be taken to bring to the attention of the prosecution the "folly" of their arbitrary policy, among the most effective I have found is to plan a six or seven day trial, making use of the subpoena power to subpoena all laboratory records and a number of the prosecution's technical witnesses; line-up your own set of experts; withdraw the time waiver; and proceed to trial. After the first witness is called, plead your client guilty to the (a) count and leave it up to the District Attorney and court to determine whether or not it is in the public interest to conduct a trial, anticipated to last six days, simply to enforce a "policy" of the District Attorney. Irrespective of the BAC reported, and regardless of which type of test was performed, there is always a viable defense to the (b) count.

6. A DUI offense "refusal" will trigger an Admin Per Se suspension under VC ¤13353, for a period of one, two, or three years depending upon prior convictions for DUIs, "wet" reckless violations, felony or misdemeanor vehicular manslaughter, or prior Admin Per Se suspensions. The Admin Per Se suspension unless otherwise stayed by DMV pursuant to VC ¤13558(e) becomes effective 30 days after service of the suspension order [VC ¤13353.3(a)], normally at the time of the Defendant's arrest [VC ¤23612(f)]. The conviction in the pending case will also trigger a separate license suspension pursuant to VC ¤13353.2, unless (i) it was a first offense, probation is granted and DUI School ordered, or (ii) it was a second offense, probation is granted and DDP School/30-month alcohol treatment program is ordered. Any suspension triggered by the conviction, irrespective of whether it was predicated upon facts indicating a refusal or chemical test result, will commence on the date of conviction (i.e. the pronouncement of judgment) or effective date of the Admin Per Se suspension which ever first occurred [VC ¤13366], but SEE VC ¤13354(a)-(c); COMPARE VC ¤13353.3(c). The respective suspensions triggered by a conviction are set forth in VC ¤13352.

In weighing the District Attorney's offer in our example, the decision to strike the enhancement will not have any effect, good or bad, on the administrative suspension. [BUT QUERY: Must there be an admission or a finding on a charged enhancement under VC ¤23577 for a court's concurrent suspension order in a "refusal case" to be legally binding? In answering this question, is there an inherent statutory distinction to be drawn between VC ¤13354(a) and VC ¤13354(b) when the refusal exception in VC ¤13353.3(c) is applied to each, respectively. SEE language in VC ¤13353 re APS determinations]. In terms of license suspension, consider the effect of VC ¤13354 and ¤13353.3(c): in the case of a "refusal", both suspensions will automatically be consecutive if so ordered by the court. In a refusal case, therefore, it is a matter of some importance to plea bargain the concurrent suspension by court "omission" from the order. In our example, on a third offense conviction involving a "refusal" the period of the Admin Per Se suspension is three years; the third offense suspension for any DUI conviction is also three years, however, both suspensions will automatically be imposed concurrently unless the court orders consecutive suspensions [VC ¤13353.3(c); cf. VC ¤13354(b)]. If so ordered, by accepting to plead guilty or no contest to the third DUI offense (whether the (a) or (b) count, and with or without the VC ¤23578 enhancement admission), your client will suffer a minimum six-year mandatory license revocation (which will be longer if he fails to complete the 18-month DDP school). The only exception will be if your client applies to DMV pursuant to VC ¤13552(a)(5) for a restricted license on the terms set forth therein, in which case, his minium aggregate license suspension will be for 54 months instead of six years. If the court were to order the periods of suspension to run concurrently, that order, as such, would be ignored by DMV.

If no "refusal" was involved in the current criminal case, separate Admin Per Se and conviction triggered suspensions will also be imposed [cf. VC ¤13353.3(c)]. However, unlike the "refusal" described above, the separate suspension periods will run concurrently (at least to the extent they overlap) whether or not the court orders the Admin Per Se and conviction triggered suspensions to run consecutively.

CALL TO ACTION: Prior to the law's amendment on July 1, 1999, the rules on consecutive and concurrent suspensions based upon court orders in second and subsequent DUI conviction cases, and the availability of restricted licenses in successive cases, were different and this may provide a constitutional basis for obtaining a modification of current suspension or revocation orders arising out of old cases. Note also that the old rule which frequently prohibited a second offender with a stale third prior from getting a restricted CDL if he had been enrolled in the DDP school within the prior four years is now gone from the law, a change which makes several DUI probationers now eligible for restricted license relief under VC ¤13352(a)(3). Many judges, and defense attorneys, still treat the imposition of the 18-month DDP School on a third offense as "optional", because the school was not historically a required sentence option and many courts required the defendant to affirmatively request it [cf. VC ¤13352(a)(5)(E)]; however, at the end of the currently imposed license suspension period, the Defendant will not be able to retain a restoration of his driving privilege unless proof has been provided of his completion of the program or its 30-month equivalent [VC ¤13352(a)(5)]. A failure to complete a third offense DDP School will extend any period of suspension imposed until after such school has been completed.

ANSWER: You should take steps to let your client know the specific consequences of his plea in terms of the length of his license suspension, and the fact that no "right to drive to work" will be permitted. Impress upon him the importance of completing the 18-month DDP School and the reason for its importance. If this were not a refusal case and involved a low level breath or urine test, you may wish to consider seriously taking the matter to trial. SEE answer to Question 5.

7. The DMV acts independently from the court. Whether or not a Defendant is charged in the underlying criminal case with a prior conviction or if the prior conviction is charged and stricken by the court, the Department will, nevertheless, treat the offense as his second conviction. A second conviction within seven years of the date of the prior DUI arrest requires the Department to suspend your client's driving privilege for a period of two years [VC ¤13352(a)(3)], but if the court places your client on a minimum of 3 years probation and orders him to enroll in and complete the 18-month DDP school (as well as the other minimum conditions required in sentencing under VC ¤23542), in lieu of the two-year suspension, the Department will restrict your client's driving privilege for a period of two years or until the DDP program is completed, whichever shall first occur [VC ¤13352.5(a)] CAVEAT: The restriction granted by DMV is automatic, but does not commence until after all the following have been accomplished: Any Admin Per Se suspension is satisfied, a restricted license fee is paid to DMV, proof of insurance [SR-22] is filed with the DMV and the Department has proof of enrollment in the DDP school. Consequently, a difficult situation is presented where you are aware of the prior offense which is not been charged. Although you are not obligated, and perhaps are prohibited from advising the court or District Attorney of that prior, your client should be made aware of the fact that the short term benefits obtained from the erroneously charged first offense pleading will haunt him in the future when he is advised of the DMV suspension. There is no exception to the mandatory two-year suspension imposed in this situation and that period of suspension will be automatically extended for an additional six years, unless within that total eight year period, your client enrolls in and completes the DDP School [VC ¤13556(b)].

ANSWER: The suspension is not only proper but is required. In this example, the Defendant has contacted you early on and you should place the matter on calendar to modify his sentence to include a referral to the DDP School. Although the statutory language requires that additionally the court impose the minimum jail time, fine, and license restriction, as a practical matter DMV will not ordinarily maintain the suspension if proof of enrollment in the DDP School is filed with it together with the SR-22 and the restricted license fee is paid. CAUTION: If your client waits until after the abstract has been processed by DMV, or if thirty days have elapsed from the date of sentencing without proof of enrollment in the DDP school being filed with DMV, his only remaining [limited] option is that set forth in VC ¤13352(a)(3).

8 SEE answer to Question 7, supra..

ANSWER: As noted above, the two-year suspension is proper. Armed with the knowledge of the license suspension consequence, at the time of plea bargaining with the District Attorney you could have considered other alternatives all of which involve the minimum second offense terms, but which are made more palatable to your client. For example, negotiate a CTS for the 48 hours, convert the fine to community service and have the judge impose a 90-day suspension together with DDP School on the first offense sentence. Although it is possible that DMV will not differentiate the distinction between 90 days and 18 months if the term is not indicated in the abstract and the "S", "T", and "V" codes are indicated, making this assumption is an unwise gamble. Rather, if the District Attorney was willing to strike the prior, he would undoubtedly not oppose a more stringent sentence than that called for in a "standard" first. Also, if the facts fit, consider combinations such as PC ¤647(f) and "dry" reckless. In any event, all that can now be done is to modify the original sentence to include the DDP School. VC ¤13352.5(b) provides that the restriction of lieu of suspension will not become applicable until after all of the prerequisite are satisfied and proven to the Department in writing. By internal policy of the Department, on the seventh day following receipt of the abstract of conviction, the two-year suspension will go into effect unless evidence is provided to the Department: proof of insurance, enrollment in the DDP school and payment of the applicable restriction fee [VC ¤13352.5(a)]. CAVEAT: Assuming that the APS suspension was successfully set aside, a delay beyond 30 days of proof of enrollment in the DDP school may trigger the alternative restrictive license application procedures in VC ¤13352(a)(3)(A)-(G) [including the one-year wait plus the IID Verification of Installation and monitoring. SEE answer to Question 9, infra.].

9. Even before the statutory changes which revised the DUI laws in 1982, enterprising scientists were developing systems and products in the hope of selling their respective DUI monitoring ideas to the courts and the legislature. Principal among the ignitition interlock devices developed to forestall the operation of a vehicle by an alcohol impaired driver were those requiring an instantaneous breath test or the manual input into the vehicle of a sequential set of numbers. That which began as nonstatutory "trials" of these products by zealous judges in individual cases soon received the stamp of legislative approval with the discretionary use of IIDs in second and subsequent offense DUI cases. The combination of entrepreneurial greed, judicial indifference, and legislative politics soon resulted in the mandate that IIDs be required in all second or subsequent DUI cases unless good cause could be shown for their avoidance. The IID experiment (like the vehicle impound options before it) proved in practice to be ill conceived, unworkable, and costly to both the Defendants and the courts. Ultimately, and with the gratitude of most judges, the courts were divested of the responsibility for imposing and monitoring the IID program for DUI cases, except as a discretionary sentencing option [VC ¤14601.2 has, however, added the IID sanction]. Under current law, and in a far more limited factual situation, it is the DMV which has become the policing agency for the continuance of this failed policy idea [IIDs are under study for their "effectiveness"; the report is due by January 1, 2002, but as long as legislators want headlines and the IID suppliers are making money, don't count on any change in the requirements for their continued use].

VC ¤13352(a)(3) provides, in pertinent, part as follows:

"(3) Except as provided in Section 13352.5, upon a conviction or finding of a violation of Section 23152 punishable under Section 23540, the privilege shall be suspended for two years. The privilege shall not be reinstated until the person gives proof of ability to respond in damages and gives proof satisfactory to the department of successful completion of a program described in Section 23542. For the purposes of this paragraph, enrollment, participation, and completion of an approved program shall be subsequent to the date of the current violation. No credit shall 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 period, 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 current underlying conviction, either of the following:

(i) Proof of enrollment in a licensed 18-month program pursuant to Section 11836 of the Health and Safety Code.

(ii) Proof of enrollment in a licensed 30-month program, if available in the county of the person's residence or employment, pursuant to Section 11836 of the Health and Safety Code.

(B) The person agrees, as a condition of the restriction, to continue satisfactory participation in the program described in subparagraph (A).

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

(D) The person agrees to maintain the ignition interlock device as required under subdivision (g) of Section 23575.

(E) The person provides proof of financial responsibility, as defined in Section 16430.

(F) The person pays all administrative fees 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." [emphasis added]

VC ¤13352.5 provides, in pertinent part, as follows:

"(a) The department shall issue a restricted driver's license to a person granted probation under the conditions described in subdivision (b) of Section 23542 instead of suspending that person's license, if the person meets all of the following requirements:

(1) Submits proof of enrollment in, or completion of, a drug and alcohol treatment program described in paragraph (4) of subdivision (b) of Section 23542.

(2) Submits proof of financial responsibility, as described in Section 16430.

(3) Pays all applicable reinstatement or reissue fees and any restriction fee required by the department.

(b) The restriction of the driving privilege shall become effective when the department receives all of the documents and fees required under subdivision (a) and shall remain in effect for the duration of the treatment program described in paragraph (4) of subdivision (b) of Section 23542.

(c) The restriction of the driving privilege shall be limited to the hours necessary for driving to and from the place of employment, driving during the course of employment, and driving to and from activities required in the treatment program.

(d) Whenever the driving privilege is restricted under this section, proof of financial responsibility, as defined in Section 16430, shall be maintained for three years. If the person does not maintain that proof of financial responsibility at any time during the restriction, the driving privilege shall be suspended until proof pursuant to Section 16484 is received by the department." [emphasis added]

Subsection (g) of VC ¤13352.5 is misplaced. VC ¤13352.5(g) provides as follows:

"(g) Twelve months after the date of conviction, the offender may apply to the department for a restricted driver's license, subject to the conditions specified in paragraph (3) of subdivision (a) of Section 13352. Whenever proof of financial responsibility has already been provided in compliance with restriction described in this section, and the offender subsequently receives an ignition interlock device restriction described in paragraph (3) of subdivision (a) of Section 13352, the proof of financial responsibility period shall not be extended beyond the previously established term."

IID providers are now regulated by DMV which not only lists approved devices, but dictates the forms and terms to achieve compliance for the installation and monitoring of IIDs whenever applicable [VC ¤13386]. Currently, the court in sentencing a person for a second offense DUI under VC ¤¤23540/23542 has three basic sentencing alternatives insofar as sentencing may affect the Defendant's driving privilege: (i) The court may deny probation in which case the license is suspended for two years, concurrent with any other suspension order arising out of the same case, and a restricted license may be obtained from DMV by affirmative application not involving the court only after one year from the time of sentencing has passed [VC ¤13352.5(g)]. To avail himself of this alternative, the Defendant must comply with all of the requirements set forth in VC ¤13352(a)(3)(A)-(F), including the requirement that he agrees to maintain the IID mandates under VC ¤23575(f)-(g) and files a "Verification of Installation" pursuant to VC ¤13386(e)(2) [VC ¤13352(a)(3)(C)-(D)]; or (ii) grant probation on those terms which encompass the requirements in VC ¤13352(a)(3), in which case the Defendant will automatically have a minimum one-year license suspension and may not obtain a restricted license until after he follows the same procedures applicable to him had probation been denied [SEE (i) above]; or (iii) grant probation on the terms set forth in VC ¤13352.5(a)-(c), in which case, the Defendant need not have an IID installed and will automatically receive a restricted license from DMV in lieu of the two-year license suspension mandated under VC ¤13352(a)(3) provided he acts promptly (and within DMV's internal and unpublished guidelines) to comply with the requirements set forth in VC ¤13352.5(a)(1)-(3) [files with DMV proof of enrollment in a DDP 18-month school or 30-month program within 30 days of sentencing, pays a restricted fee in the amount of $100.00, and submits through his insurance carrier an SR-22 proof of financial responsibility valid for three years].

In a first or second offense conviction (particularly if the offense involves a .20 grams percent determination, a refusal, or follows a conviction for two or more traffic violations [VC ¤23575(a)(1)]), the court also has the authority to require an IID by exercising its discretion to affirmatively order it, but in such case the court itself must monitor the IID installation and its maintenance for the period during which the installation has been imposed, up to three years.

In a second or subsequent VC ¤23153(a)/(b) offense or a third or subsequent violation of VC ¤23152(a)/(b), an IID is required although its benefit with respect to a license restriction is nominal [SEE VC ¤13352]. Neither an IID, nor a restricted license is permitted for a first offense conviction of VC ¤23153(a)/(b), whether a felony or misdemeanor [VC ¤13352(a)(2)]. Finally, tampering with the device or otherwise trying to fool mother nature is now a criminal offense under VC ¤23247.

IIDs may also be ordered by the court as a condition of probation or as a limitation on the driving privilege of a Defendant under the age of 21 years who has been convicted of a variety of offenses set forth in VC ¤13202.5(d). VC ¤13202.8.

ANSWER: If your client was sentenced pursuant to those terms set forth in VC ¤13352.5(a)-(c), go back to sleep. If, however, for no particular reason, your client was sentenced pursuant to those terms set forth under VC ¤13352(a)(3), tomorrow you must immediately notify the court (before the abstract is sent to DMV [clerk must send abstract within 10 days, but normally it is sent within three business days] and before DMV inputs the suspension order into its computer [on the seventh day following receipt of the abstract by DMV]) and have the original abstract corrected with the consent of the court.

10. The period of the Admin Per Se .08 determination suspension on a second or subsequent offense is one year [VC ¤13353.3(a)(2)]. The suspension becomes effective 30 days following the date of arrest [VC ¤13353.3(a)], unless a stay order is issued pursuant to VC ¤13558 (e). A second offense conviction for DUI requires a two-year suspension [VC ¤13352(a)(3)] unless the court imposes conditions of probation which permit the 18-month restricted license alternative under VC ¤13352.5(a)-(f) or, failing this, the Defendant initiates the limited restricted license application process under VC ¤13352(a)(3)(A)-(G).

FNOTE 1: Although VC ¤13366 provides that any suspension by DMV resulting from a conviction must commence "upon a plea, finding, or verdict of guilty", VC ¤13354 provides as follows:

"(a) Notwithstanding VC ¤13366, if (1) an abstract of conviction is received by the Department for an offense which requires the Department to restrict, suspend, or revoke the privilege to operate a motor vehicle of a person after conviction or finding of a violation pursuant to VC ¤13352 or VC ¤13352.5 [i.e. proofs required for a restricted license -- SR-22/DUI/DDP school, etc.], (2) there is a suspension of that person's privilege to operate a motor vehicle already in effect for refusal to consent to, or for failure to complete, a chemical test pursuant to VC ¤13353 or a suspension already in effect for driving with an excessive alcohol content in the person's blood pursuant to VC ¤13353.2, (3) that suspension is administratively final and resulted from the same arrest, and (4) the sentencing court orders these restrictions, suspensions, revocations, or a combination thereof to run consecutively, then the restriction, suspension, or revocation resulting from the conviction or finding pursuant to VC ¤13352 or VC ¤13352.5 shall commence after the suspension already in effect pursuant to VC ¤13353 or VC ¤13353.2 has terminated, except as provided in VC ¤13353.3(c).

(b) Notwithstanding VC ¤13366, if (1) the Department is required to suspend a person's privilege to operate a motor vehicle for refusal to consent to, or for failure to complete, a chemical test pursuant to VC ¤13353 or to suspend a person's privilege to operate a motor vehicle for driving with an excessive alcohol content in the person's blood pursuant to VC ¤13353.2, (2) there is a restriction, suspension, or revocation of the person's privilege to operate a motor vehicle already in effect for a conviction or finding of a violation pursuant to VC ¤13352 or VC ¤13352.5 which resulted from the same arrest, and (3) the sentencing court orders these restrictions, suspensions, revocations, or a combination thereof to run consecutively, then the suspension for refusal to consent to, or for failure to complete, the chemical test pursuant to VC ¤13353 or the suspension of that person's privilege to operate a motor vehicle already in effect for driving with an excessive alcohol content in the person's blood pursuant to VC ¤13353.2 shall commence after the restriction, suspension, or revocation already in effect pursuant to VC ¤13352 or VC ¤133352.5 has terminated, except as provided in VC ¤13353.3(c).

(c) The purpose of this section is to require that any suspension under VC ¤13353 or VC ¤13353.2 and any restriction, suspension, or revocation under VC ¤13352 or VC ¤13352.5 resulting from the same arrest are cumulative and shall be imposed consecutively, if so ordered by the court."

FNOTE 2: But VC ¤13353.3(c) provides as follows:

"If a person's privilege to operate a motor vehicle is suspended pursuant to VC ¤13353.2 and the person is convicted of a violation of VC ¤23140 [minor with .05 BAC], VC ¤23152, or VC ¤23153, including a violation described in VC ¤23620 [H & S ¤655 and vehicular manslaughter], arising out of the same occurrence, both the suspension under VC ¤13353.2 and the suspension or revocation under VC ¤13352 shall be imposed, except that, notwithstanding VC ¤13354, the periods of suspension or revocation shall run concurrently, and the total period of suspension or revocation shall not exceed the longer of the two suspensions or revocation periods. This subdivision shall not affect a suspension or revocation pursuant to VC ¤13353 for refusal to submit to chemical testing or the imposition of consecutive periods of suspension or revocation pursuant to VC ¤13354 for that refusal."

This provision is inapplicable to refusal cases. id. The commencement date for any suspension imposed following a conviction, or any restriction recommended or ordered by the court pursuant to statutory authority, is the date of conviction, i.e. sentencing. The DMV will ignore any order of the court which is contrary to the express conditions of the Vehicle Code.

ANSWER: In typically confusing and overlapping style, the statutory mandates -- applied literally by DMV -- have the effect of permitting the Department to override the court's order. Notwithstanding the recommendation (or order) by the judge, the suspension ordered by the judge will run concurrently with the Admin Per Se suspension. This is true of a subsequent offense as well, but does not apply to the CDL restriction on a first offense DUI conviction. In a first offense situation, the required 90-day restriction by the court will automatically be consecutive to the four-month (or one-year, if a refusal is involved) Admin Per Se suspension [VC ¤23538(a)(3)]. Query: Is your client entitled to ignore the court's order as violative of law (as e.g. a void condition, violative of double jeopardy, cruel or unusual punishment, etc.) or, notwithstanding your client's legal right to drive (and his possession of a driver's license reflecting that fact) is he bound by the judicially imposed condition of probation?

11. Both VC ¤20001 and ¤23104 are two-point moving violations, but as your client has a clean driving record it is a safe gamble that the point count will be of no consequence. Of more significance, is the length of the mandatory revocation which is triggered by the conviction. VC ¤13350 requires a one year revocation upon conviction of VC ¤20001, reckless driving causing bodily injury [whether VC ¤23104(a) or ¤23104(b)], or any felony in the commission of which a motor vehicle is used [subject to some exceptions]. However, VC ¤13351.5 requires a mandatory permanent revocation of the CDL of any person convicted of PC ¤245 where the deadly weapon used to commit the offense was a motor vehicle.

ANSWER: Avoid the PC ¤245 conviction and explain the mandatory nature of the one year revocation for either of the remaining counts.

12. The purpose of the question is to emphasize the importance of the "point count" consequences of any Vehicle Code violation.

ANSWER: The suspension imposed, although discretionary by the Department, is entirely proper [VC ¤12810 et seq.; VC ¤13950]. It is, however, subject to a post-deprivation hearing if requested within ten days of the date of notification by the Department of the suspension order [VC ¤14000(a)]. At the hearing new consideration must be given to the use or mileage travelled [VC ¤12810.5(a)] as well as any special circumstances arising out of one or more of the incidents which led to the "negligent operator" suspension. The Department may reinstate the license, place the driver on administrative probation, or order an appropriate restriction [VC ¤12813(a)].

The January speeding ticket counts one-point. The February accident adds an additional point. Once a plea is entered to the "dry reckless", two additional traffic points will be added. A non-professional driver is entitled to no more than three traffic points within a 12 month period, five traffic points in 24 months or seven traffic points within 36 months. VC ¤12810.5(a). A Class A or B licensed driver (other than those holding special certificates or endorsements) are entitled to a greater number of points, but the points are calculated differently. cf. VC ¤12810.5(b); VC ¤12810 [point count]. Points arising out of a traffic collision are added as of the date of the collision; all other traffic points are added as of the date of conviction, irrespective of when the offense occurred. Consequently, if the court is amenable, sentencing should be differed on the reckless driving charge until after February of the following year (to permit the speeding ticket point to drop from consideration in the point count calculation by DMV). Parenthetically, all one-point violations are maintained on the driving record of the individual for three years and all two-point violations are retained for ten years. However, the Department maintains its own "internal use" records which are far more detailed and may go back indefinitely.

13. Here, to the point count problem which your client will confront by accepting the District Attorney's offer [SEE answer to Question 12, supra.], consideration should be given to the provisions of VC ¤13351(a)(2). A conviction of three or more violations of hit/run driving or reckless driving within a twelve month period requires a revocation of the CDL for a minimum of three years. Although the question does not involve facts sufficient to require the imposition of this revocation, because of your client's age and the nature of his Vehicle Code violations, a word of caution seems appropriate.

ANSWER: The accident and "dry reckless" two years earlier resulted in three traffic points. The open container charge added an additional point. By accepting the "wet reckless" offer within two years of the date of his accident, he should expect a driver's license suspension notice from DMV. Factually, unlike the individual involved in Question 12, supra., your client in this case is facing an uphill battle in avoiding the discretionary suspension imposed as a negligent operator. He may well wish to take this case to trial, but irrespective of his decision, he should be aware of the indirect consequences of his acceptance of the District Attorney's offer. Note also that the Admin Per Se suspension which arose out of his current case may well be his second offense requiring a one year outright suspension (concurrent with the "negligent operator" suspension) unless it is promptly contested.

14. Although VC ¤13353.2(e) makes an acquittal of VC ¤23152(b) binding upon the Department, requiring it to set aside the Admin Per Se suspension arising out of that incident, there is no requirement that an acquittal be reported to DMV. It is this authors belief that it is the responsibility of defense counsel upon obtaining such an acquittal to insure that it is appropriately and affirmatively reported to DMV.

ANSWER: The acquittal was not reported and should now be reported by sending a certified copy of the Complaint, Clerk's Minutes of the trial, Judgment, and a cover letter demanding a set aside of the Admin Per Se suspension. The letter and enclosures should be addressed to Driver Safety Appeals Unit, DMV, 2570-24th Street, MS-J256, Sacramento, CA 95818 [Fax (916) 657-7775].

15. There are dozens of ways by which a CDL may be suspended or revoked. Frequently, different DMV divisions handle suspension problems. Seldom will the local DMV be able to explain adequately what steps are necessary to obtain a license reinstatement once a suspension has been imposed. Further, even DMV personnel at a regional level lack the experience necessary to fully explain the requirements for reinstatement where multiple actions have been taken. In the question presented, your client's failure to clear the delinquent traffic tickets and pay the outstanding fine due on the citation for which he was convicted resulted in a suspension and hold on his driving privilege. This is handled by the Licensing and Operations Unit of the Division of Driver Safety at one of the Regional offices scattered throughout California or the equivalent unit of the Headquarters Region of the Division of Driver Safety, Sacramento. The failure to provide proof of financial responsibility results in one or more separate suspensions [failure to file SR-1A within 10 days of accident; failure to maintain insurance, failure to satisfy accident claims] handled by the Financial Responsibility Section, DMV, P.O. Box 942884, MS-J237, Sacramento, CA 94284-0001. Parenthetically, Ms. Sylvia Ouchida, Motor Vehicle Technician, is among the more knowledgeable personnel under the current manager. All outstanding grounds for suspension must be cleared before the license privilege will be reinstated.

ANSWER: Your client should personally obtain a current copy of his DMV printout before your initial interview with him and bring it with him for your review. Each basis for his suspension and the statutory ground supporting it, will be set forth under the heading "License Status" on the printout. To obtain a return of his driving privilege he will have to clear each of the tickets and pay each of the fines either by depositing the appropriate sum with the DMV (if that option is available by the reporting court) or by contacting each of the courts where the tickets are outstanding. He must then ascertain the specific basis for the financial responsibility problem arising out of the accident. For example, he may be able to clear an outstanding claim by obtaining a release from the injured party, coupled with a contractual agreement to make payments. Proof of current insurance will also be required. This is not, in this author's opinion, the obligation of defense counsel, but good public relations require "self-help" advise. Of course, whenever an outstanding citation is pending in the jurisdiction where the DUI case is pending, the client should be given the option of consolidating the traffic citation with the criminal case to arrive at a joint disposition. CAUTION: Once again, traffic points attach on the date of conviction irrespective of how long the citation has been outstanding.

16. Several of the generic forms used by the courts to accept a guilty or no-contest plea to a DUI offense indicate the right of the Defendant to be released from penalties and disabilities pursuant to PC ¤1203.4. However, VC ¤13555 specifically excludes action under that section (or PC ¤1203.4(a)) from consideration in the revocation or suspension of a CDL or in removing any conviction of a Vehicle Code violation that would result in a revocation, suspension or limitation on a driving privilege. SEE Ellis v. DMV (1942) 51 Cal. App.2d 753, 125 P.2d 521.

A certificate of detention letter is not binding and has no effect on a DMV imposed suspension. Behan v. Alexis (1981) 116 Cal.App.3d 403, 172 Cal.Rptr. 132; Armondo v. DMV (1993) 15 Cal.App.4th 1174 19 Cal. Rptr.2d 399.

ANSWER: You should resist the temptation to explain that "the court doesn't know what it is talking about" and "who are you going to listen to the judge or your lawyer?", and bring the error in the form to the attention to the court in the presence of your client. You might want to read the tortured reasoning in Armondo v. DMV, supra., 15 Cal.App.4th 1174 19 Cal. Rptr.2d 399, and explain the court's reasoning to your client.

17. In addition to the traditional driving offenses involving alcohol or drugs [VC ¤23152, VC ¤23153, VC ¤23139], serious injury or death [e.g. VC ¤20001, VC ¤23104, PC ¤192(c); VC ¤13350 - mandatory one year suspension not reviewable]; or a pattern of recidivistic driving conduct [VC ¤13351 (serious injury/death combos); cf. PC ¤193.7]; SEE ALSO VC ¤13201 - six-month court discretionary suspension for VC ¤20002, VC ¤23104, VC ¤22452 (failure to stop at RR crossing), VC ¤2800.1 or VC ¤2800.2 (evading a police officer) - six months with work restriction possibility as determined by the court; VC ¤13352; speed contest under VC ¤23109(a) only, VC ¤13352(a)] the sanction of a CDL restriction, suspension, or revocation has more recently been statutorily applied to a variety of non-driving offenses. Suspensions are now mandated for boating under the influence [H&N ¤655 et seq.; VC ¤23620], but also for prostitution in a car within 1,000 feet of residence [PC ¤647(b); VC ¤13201.5(a) - 30 days with alternative six-month "work" restriction possibility as determined by the court] or committing a "lewd act" in a car within the same 1,000 feet limit [PC ¤647(a); VC ¤13201.5(b) - 30 days with alternative six-month work restriction possibility as determined by the court]. Knowingly causing a vehicular collision to collect on a bogus insurance claim also may result in a six-month license suspension subject to work restriction possibility as determined by the court [VC ¤13201(e)]. Defendants under the age of 21 years are particularly vulnerable to this mandatory or discretionary sanction for e.g. (i) vandalism [PC ¤¤ 594, 594.3, or 594.4; VC ¤13202.6 - one year with "family hardship" exception determined by court]; (ii) "wet" reckless driving [VC ¤23103 under VC ¤23103.5 conditions - minimum of one year with "critical need to drive" exception determined by the court]; (iii) a variety of drug charges [SEE VC ¤13202.5(d) - minimum of one year with "critical need to drive" exception determined by the court]. For juveniles under the age of 18 years, SEE ALSO VC ¤13202.4; VC ¤13202.7; VC ¤13352.3.

The Department, without any statutory authority or published supporting court decision to aid it, has also applied routinely California's Admin Per Se suspension sanction to DUI equivalent federal crimes, e.g. in 36 CFR ¤1004.23(a)(1).

ANSWER: Your client has run afoul of the sanction imposed by VC ¤13202.5(a) which requires a one-year license suspension by the court upon a conviction, inter alia, of a violation of PC ¤647(f) [drunk in public] by a Defendant under the age of 21 years. However, all is not lost because the court has discretion to determine whether or not your client has a "critical need to drive". This phrase is a term of art expressly defined in VC ¤12513 as requiring evidence of inadequate school transportation facilities for education, or a need for medical transportation for "illness of a family member", or as applicable to your single parent, driving is necessary for transportation to and from employment. CAVEAT: Although not expressly set forth in the statute, VC ¤13202.5(b) requires that the court transmit to DMV "within 10 days following a conviction", an abstract indicating the license suspension, and notwithstanding the requirement in that section [VC ¤13202.5(c)(3)] that "the court shall notify the department of any modification within 10 days of the order of modification [granting the restriction upon a finding of a critical need]", a failure to have the court make that determination before the original abstract is sent to DMV will significantly delay the starting date of the restriction.