DUI Probation Violation Lawyer in San Jose, CA The 0.01 Percent Rule Under 23154

The 0.01 percent rule and the consent that comes with it

Section 23154 provides that it is unlawful for a person on probation for a violation of section 23152 or 23153 to operate a vehicle at any time with a blood alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test device or other chemical test (Vehicle Code 23154). The section adds that a person on that probation who drives is deemed to have given consent to a screening test or other chemical test for the purpose of determining alcohol content, and that the person must be told that failure to submit to or complete the test will result in a suspension or revocation of the driving privilege for a period of one year to three years under section 13353.1. The DMV states the limit in the same terms in its driver handbook: 0.01 percent or higher at any age if the driver is on DUI probation (California DMV).

What the probation terms actually say

Section 23600 sets the mandatory conditions that attach to probation on a section 23152 or 23153 conviction. The court may not stay any sentence or the imposition of sentence. The period of probation is not less than three nor more than five years. The conditions include that the person shall not commit any criminal offense, shall not drive a vehicle with any measurable amount of alcohol in the blood, and shall not refuse to submit to a chemical test of blood, breath or urine when requested by a peace officer (Vehicle Code 23600). The statute then states the consequence: if the person is convicted of a violation of section 23154 involving 0.04 percent or more by weight of alcohol in the blood, the court shall revoke the probation and may impose a new term of probation not to exceed five years, which must include at least 48 hours in jail for each violation.

The administrative suspension that runs alongside

The DMV takes its own action. Section 13353.2 directs immediate suspension where the person was driving while on court-ordered probation for a DUI conviction and had 0.01 percent or more blood alcohol (Vehicle Code 13353.2). The department publishes the periods that follow: a one-year suspension where the person submitted to a screening or other chemical test showing 0.01 percent or greater, a two-year suspension on a refusal or failure to submit, and a three-year revocation on a refusal where two or more prior DUI convictions are on the record (California DMV). The department also states that where an officer determines a person is in violation of more than one administrative per se action, a suspension or revocation order may be issued for each action. Section 13353.3(b)(3) sets a minimum period of one year for a refusal determination under section 13353.1 (Vehicle Code 13353.3).

A new DUI while on probation is two problems

Where the new allegation is a fresh section 23152 count rather than a section 23154 violation, the existing probation supplies the prior. Section 23540 applies where the new offense occurred within ten years of a separate qualifying violation that resulted in a conviction, which the probation case by definition is (Vehicle Code 23540). Section 23542 then governs the probation sentence for that second offense, requiring either at least 10 days in county jail or at least 96 hours served in two continuous 48-hour increments, plus an 18-month or 30-month licensed program (Vehicle Code 23542). Section 23575.3 attaches a mandatory 12-month interlock restriction at one prior (Vehicle Code 23575.3).

One route that does not exist here

Judicial misdemeanor diversion under Penal Code section 1001.95 lets a judge, at arraignment and over the prosecution's objection, offer diversion to a defendant charged with a misdemeanor (Penal Code 1001.95). Vehicle Code section 23640 removes DUI from that landscape: in a proceeding for a violation of section 23152 or 23153, or a section 23103 conviction as specified in 23103.5, the court may not suspend or stay the proceedings for the purpose of allowing the accused to attend or participate in an education, training or treatment program (Vehicle Code 23640). Treatment appears instead as a condition, and section 23649 permits an additional assessment of up to $100 where the judicial district operates a county alcohol and drug problem assessment program (Vehicle Code 23649).

Where a violation is heard in Santa Clara County

A probation violation on a San Jose case returns to the Hall of Justice at 190 West Hedding Street, the courthouse assigned criminal matters from San Jose, Milpitas, Los Gatos, Saratoga, Monte Sereno and Santa Clara (Santa Clara County Superior Court). The court also operates collaborative court calendars, including an adult criminal Drug Treatment Court that it describes as providing frequent court reviews with the judge, referral to drug assessors and treatment, and connection to county and community providers (Santa Clara County Superior Court). This page is general information about California law and is not legal advice. Anyone accused of violating DUI probation should speak with a licensed California attorney, and the attorney who advertises on this site can be reached at the number posted here.