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By David Salvin September 6th, 1999

Published in "Orange County Lawyer Magazine" September 1999

In the face of new, tougher penalties and requirements for drivers being convicted of driving under the influence (DUI), the Department of Motor Vehicles recently made an unprecedented and unusual announcement. It had made a mistake. After recovering from the shock, defense attorneys began to inquire about what caused this earthshaking announcement and what does it mean for their clients.

In short, the DMV has announced that drivers convicted of driving under the influence from January of 1997 until June 25, 1998 may apply to the DMV to have their driving records expunged if their convictions were solely based on the findings of the DataMaster BAC breathalyser equipment. This means that the conviction had to be supported only by a breath test result from a DataMaster machine. No urine or blood tests could have been done to corroborate the DataMaster results. The DataMaster BAC is a device used to test the concentration of alcohol in a person’s bloodstream by reading a sample of exhaled breath. While there are several different makes and models of the breathalyser, nearly every law enforcement agency in Orange County except Huntington Beach uses the DataMaster BAC.

What this means is that potentially 4,700 people who were arrested and convicted of driving under the influence based upon the breath samples from the DataMaster may be able to expunge their driving records through the DMV.

Why Would the DMV Allow Such Expungement?

The reasons go back to a very detailed set of code sections contained in Title 17 of the California Code of Regulations. These regulations set out the exact means and methods by which alcohol samples may be taken from suspected drunk drivers. Title 17 requires that the laboratory which calibrates the machines used for alcohol testing be licensed by the state. The problem here is that from January of 1997 until June of 1998, the lab in charge of calibrating the DataMasters was in fact unlicensed.

The Orange County Sheriff’s department has since responded by objecting to the DMV’s policy announcement and stating that the machines themselves were not inaccurate just because the lab calibrating them happened to be unlicensed for a time. Currently it is unknown whether the DMV will change its policy decision in response to the Sheriff Department’s objections. However, the Sheriff Department’s objections have the implied assertion that the drivers were no less drunk when tested by the unlicensed machines as opposed to fully licensed machines.

While that may be true, defense attorneys argue that all motorists are expected to be licensed to operate their vehicles on California’s highways. The day a driver’s license expires, he or she is committing a crime, although they may be no less capable of driving than when they had their license. In short, the technicalities used by the DMV and police for so long to ensnare drivers have now been turned against them. As the DMV is fond of saying, "rules are rules".

What Does This Mean For Drivers?

If the driver qualifies to have his or her driving record expunged, the DMV will take it off of their driving record. This does not affect the criminal record, nor will it affect the first offense being used as a prior. Basically, the only advantage to having the record expunged will be that the driver would then be eligible to apply for insurance through any of the major carriers rather than an assigned risk carrier which most drivers with DUI’s on their records must use for car insurance.

What’s Next?

Beginning in January and July of, 1999, many new laws will come into effect for drivers charged with DUI.

For a first time conviction, the Court will have the option to increase the driver’s license suspension from four (4) months to six (6) months. Drivers will still have to pay fines ranging from $390 to $1,000 (which are typically tripled due to a penalty assessment). The DMV will increase the license suspension time from four (4) months to six (6) months. Courts still have the option of imposing a minimum of 48 hours in jail, and to order that an ignition interlock device be installed on the vehicles of drivers convicted of driving under the influence. In 1999, however, the vehicle code has been changed to call for "heightened consideration" by the Courts of ordering installation of an ignition interlock device in the vehicle of any driver convicted of DUI whose blood alcohol level was .20% or greater. (The limit to legally drive will remain .08%)

For a second conviction of DUI within seven (7) years of a prior conviction, the fines will remain the same ($390 to $1,000). If probation is granted by the Court, sentences will include 10 days to a year in jail with a minimum of ninety-six (96) hours in jail. Previously, the minimum had been forty-eight (48) hours jail. If no probation is granted, sentences will include ninety (90) days to a year in jail. In addition, the DMV will now suspend the license of a driver convicted of a second DUI for 2 years rather than 18 months as before. New for 1999 is the requirement that a driver convicted of a second time DUI install an interlock ignition device in their vehicle before a restricted license will be issued.

Drivers convicted of driving on a suspended license when the license was suspended because of an earlier DUI will now face at least 48 hours in jail and the mandatory installation of an ignition interlock device in their cars. This is a significant change from before as the ignition interlock device is an expensive item to have installed, and will have to be paid by the drivers, and will have to remain on their vehicles for up to the term of their probations which is typically three years from the date of conviction.

While the penalties explained above are not meant to be the definitive explanation of all of the sentencing subtleties in DUI and driving on a suspended license, but does illustrate the much more stringent approach being taken to DUI sentencing.

Perhaps the biggest and most easily noticed change in DUI law is the removal of the urine test for drivers suspected of driving under the influence. In the past, drivers have been given the choice of "blood breath or urine". As of January 1, 1999, drivers will only be afforded a urine test if officers suspect the driver of being under the influence of drugs other than alcohol.

The changes in the vehicle codes dealing with DUI will result in a wholesale reorganization in the layout and organization of the vehicle code. All of the sections which deal with DUI which were previously spread all over the vehicle code will now be grouped together. Other significant changes will affect how the DMV deals administratively with DUI’s. In 1999, getting restricted licenses after having your license revoked will take longer, and may require the installation of an ignition interlock device.

With the new changes for 1999, driving under the influence will take its place as one of the more expensive and heavily penalized crimes committed in Orange County. Penalties for a second or third offense will carry with them jail terms as long or longer than those for spousal abuse, narcotics possession, or minor weapons charges. With the legislative mood and intent clearly illustrated in the constantly increasing penalties, look for driving under the influence defense and prosecution to continue to play a large role in Orange County criminal justice into the next millennium.

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