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DOUBLE JEOPARDY - ALIVE AND WELL

By David Salvin July 2nd, 2001

Published in the "Orange County Lawyer" Magazine July 2001

One of the most important criminal law concepts most attorneys take from law school is the concept of double jeopardy. Essentially, that a person may not be prosecuted (or punished) more than once by the same governmental agency for the same offense.

California Penal Code Section 654 holds "An act or omission which is made punishable in different ways by different provisions may be punished under either provision, but in no case can it be punished under more than one; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other." This code was enacted in 1872 and is nearly as old at the State itself. The law states that even though one criminal act may be a violation of several different code sections or laws, a defendant may only be convicted (and punished) once - under one section or law. That is the core of the concept of double jeopardy.

However the concept of double jeopardy has not yet wrought itself into the course sensibilities of the venerable DMV. Even now, in the "enlightened" 21st century, double jeopardy is alive and well at the DMV.

This situation occurs with drivers who are accused of driving under the influence and happen to be under 18 years of age at the time. Regardless of one’s views on under aged drinking, the legal analysis and logic of the DMV is difficult to understand at best.

California Vehicle Code Section 13353.2 calls for the immediate suspension of a driver’s license to drive for any of the following reasons: (1) The person was driving a motor vehicle when the person had 0.08 percent or more, by weight, of alcohol in his or her blood; (2) The person was under 21 years of age and had a blood concentration of 0.01 percent or greater as measured by a preliminary alcohol screening test or other chemical test.

This section essentially calls for strict liability for the drinking driver under 21 years of age. At .01% BAC (blood alcohol concentration) California Law deems the sample to be considered negative for alcohol in living subjects. (California Code of Regulations Title 17 section 1220.4(c)). However, for the DMV, .01% BAC is just fine, and will result in the loss of that driver’s right to drive for a year. Compounding the difficulty in avoiding that suspension is the fact that unlike at the court level, where the defendant must be found "guilty beyond a reasonable doubt," the DMV’s administrative action requires only that there be "reasonable evidence" of the defendant’s having committed those acts prohibited by statute. It is also important to note that the normal rules of evidence, including hearsay, do not apply at the DMV level, nor does the defendant have the right to face his/her accuser as they would at the court level. In practice, the DMV relies upon the report of the officer whether it is sworn or not.

While the idea of the loss of a person’s right to drive for a year is daunting, it is made doubly so in the case of the defendant who is charged with DUI who is under 18. Not only is the minor driver subject to the loss of his/her driving privilege under the administrative prerogative of the DMV, he/she may have their license taken by the court.

However, even if the court determines not to take the license of the defendant as part of the sentence for the DUI, the very fact that the minor defendant pleads guilty or is otherwise convicted of DUI is grounds for the DMV to take that person’s license away for another year.

California Vehicle Code section 13352.3 (a) provides that the DMV shall "immediately revoke the privilege of any person to operate a motor vehicle upon the receipt of a duly certified abstract of the record of any court showing that the person was convicted of a violation of Section 23152 or 23153 (DUI) while under 18 years of age, or upon receipt of a report of a judge or juvenile court showing that the person has been found to have committed a violation of Section 23152 or 23513." The length of revocation shall be for a year or until the minor reaches 18 - whichever is longer.

So there it is. The minor driver who has already lost his or her license at the DMV administrative hearing for a year then goes to court some months later and is either is convicted or pleads guilty to a DUI, now faces the loss of his or her license for an additional year. Even if the court explicitly orders the defendant’s driving privilege not to be suspended, the DMV, acting on its own authority, will still revoke their license for another year. In this author’s experience, it is clear that most judges are at least tangentially aware of the double jeopardy and complete autonomy of the DMV in this regard. Judges understand that they are more or less powerless to avoid the double jeopardy imposed on the minor driver by the DMV.

What makes the DMV action classic double jeopardy is the fact that the DMV and the DMV alone suspends the minor driver’s license twice for the same offense. Once pursuant to the administrative hearing and again for no more reason than the conviction by the court.

Triple Jeopardy?

Looked at in a broader perspective, it can be argued that the situation for minor drivers is closer to triple jeopardy. In effect, the same driver (under 18), doing the same act one time (driving with any measurable amount of alcohol in their system while under 18) may be punished not just twice, but three times by the State of California. One time by the DMV in its administrative hearing resulting in the loss of the defendant’s right to drive for a year, a second time by the court in being declared a ward of the court, paying fines, doing probation etc. and then a third time by the DMV again with the suspension of the defendant’s license for yet another year for no more reason than the driver’s having been convicted in the court. However, courts have consistently held that since the DMV is not the same governmental agency as the courts, there is no double jeopardy in a driver being punished by the DMV and the courts for the same offense.

Although the vehicle code sections which provide for the double punishment do not provide for concurrent or consecutive suspension, the typical arrangement is for the two suspensions to run concurrently. In practice, the court disposition of the case is within a month or so of the DMV’s administrative suspension resulting in the loss of the license for just over a year. However, it has happened where the juvenile court proceedings take several months resulting in a four to five month gap between the start of the DMV administrative suspension and the second DMV suspension following a court conviction. This results in the loss of the defendant’s license for far more than a year as called for in the statutes individually.

What’s an attorney to do?

Again from personal experience, nothing short of a writ of mandamus from the Superior or Appellate Courts will change the DMV’s mind or actions. The action taken by the DMV is handled out of its "Mandatory Action Unit" in Sacramento. There, overworked (and likely underpaid) phone operators take the calls from the public on all suspension issues. The answer you get largely depends on with whom you speak. And like the soup de jour, the answers change daily. Supervisors will not take direct calls and attorneys are given no deference.

The best path is to avoid the DUI charge altogether by explaining the situation to the court and district attorney during the original negotiations. Ask to have the charge amended or modified. Ask to have a differed entry of judgment which can be changed after completion of the probation related programs.

If the DA is unwilling to alter the charges (as is the result in the vast majority of cases) success may be had if, after your client’s completing the first year of suspension (the one year DMV administrative suspension), you make application to the juvenile court which handled the original disposition for a modification or change of plea. Explain the double jeopardy situation, the fact that the minor has completed all or most of the probation and that in order to resolve the driving situation, your client needs to amend their plea. In some cases, the court may be willing to modify the plea from VC 23152 which triggers the DMV suspension to VC 23103 (reckless driving with alcohol involved) or better yet VC 23140 (under 21 with BAC of .05%). Either of these offenses will avoid triggering the second suspension.

Presently, there is little if any case law on this particular point of law. The de facto double jeopardy which exists is generally ignored by the courts, and usually unchallenged by the defendant because most minor defendants lack the financial means to bring a writ before the court. In general, the extra loss of driving privilege for a few months doesn’t warrant paying for a writ to the court. The realities of finance and social position often mean that minor defendants who cannot afford to challenge the might of the DMV simply don’t. This, however, doesn’t change the legal reality that double jeopardy is alive and well and living in that bastian of customer service known as the California Department of Motor Vehicles.

In order to review this article listed in the index of the Orange County Lawyer's Magazine please click here.


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