It it still a DUI at 0.07 BAC

[Ohiogal]

I suppose that's just one more reason why we are supposed to ask about medical conditions or treatment as part of the FST battery.

- Carl

The problem is gastric bypass should NOT be used as an excuse or a reason why someone should NOT be charged with DUI. WLS patients SHOULD know about how alcohol affects them. And should take responsibility. I have seen some patients believe that their surgery should excuse them and be a reason why a court should have leniency on them. I believe the opposite -- if you know your system is affected and you get drunk quicker then you have to be MORE stringent and more careful than the average person. One drop you shouldn't drive.

 

[Ohiogal]

One of my co-workers actually had a gastrectomy due to stomach cancer - yes that's right her entire stomach was removed - and she's the same way. Any alcohol she drinks absorbs REALLY FAST and also wears off really fast. So it's almost like injecting that one beer's worth of alcohol directly into the blood. But the BAC doesn't stay high for very long.

It is most definitely an interesting feeling. Really quick drunk to very quick sober HOWEVER no accounting for where the BAC is even if the person is no longer feeling the alcohol. But this is off subject. I just wanted to post because it IS possible to have a high BAC after only one drink.

 

[garrula lingua]

QUOTE=CdwJava;1631624]The CVC still uses language indicating that the court "may" or "shall" suspend a license in certain situations even when the authority is not granted to the DMV for the same offense.

I'm not sure that the DMV has taken this over. Could it have been a policy or rule issue rather than a matter of law?

- Carl[/QUOTE]


No, Carl.
We are specifically speaking about DUI suspensions.
The law changed in 10/2005 & took effect immediately.

Note the 'new' (2005) language in 23536 (c) - it says the DEPARTMENT (not court) may suspend.
Ironically, if the court disagrees with DMV's issuance of a restricted license, then the court can disallow the issuance of the restricted license (see (d)), however most courts are never informed as to DMV's decision regarding restricted DLs, unless the defendant commits another offense, ergo, (d) has no teeth/impact.

The VC uses the term 'Department' to mean DMV (not Judge/court/other).
Compare that to older versions, where the court suspended.

23536. (a) If a person is convicted of a first violation of Section
23152, that person shall be punished by imprisonment in the county
jail for not less than 96 hours, at least 48 hours of which shall be
continuous, nor more than six months, and by a fine of not less than
three hundred ninety dollars ($390), nor more than one thousand
dollars ($1,000).
(b) The court shall order that a person punished under subdivision
(a), who is to be punished by imprisonment in the county jail, be
imprisoned on days other than days of regular employment of the
person, as determined by the court. If the court determines that 48
hours of continuous imprisonment would interfere with the person's
work schedule, the court shall allow the person to serve the
imprisonment whenever the person is normally scheduled for time off
from work. The court may make this determination based upon a
representation from the defendant's attorney or upon an affidavit or
testimony from the defendant.
(c) The person's privilege to operate a motor vehicle shall be
suspended by the department under paragraph (1) of subdivision (a) of
Section 13352 or Section 13352.1. The court shall require the person
to surrender the driver's license to the court in accordance with
Section 13550.
(d) 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 (1) of subdivision (a) of Section 13352 or Section
13352.1, the court may disallow the issuance of a restricted driver's
license required under Section 13352.4.


The Courts can still suspend for a myriad of reasons; however, any court personnel or attorney who prosecutes or defends DUIs knows the law has changed regarding the Judges's ability to suspend based on a DUI.

California Judges now don't get to decide if they're going to suspend for three, four, or more months or grant restricted drivers licenses.

It is important for people to realize this & do everything DMV requires to have their DLs reinstated.[/B

Note, under VC 13352, et seq, the requirements by DMV re the amount of suspension time and what has to be proved to DMV in order for the DL to be reinstated.

If CA Judges are suspending DLs due to DUIs, they are making invalid orders.
The Prosecutor, and the Court Clerk should be stopping that Judge.
We should be making it clear on this board that suspensions are by the DMV and DMV requirements must be complied with in order to get DL reinstated.

The authority of the Judge (and DMV) should not be mis-stated.
This is important for a DUI offender to understand.

 

[CdwJava]

Here's an example from the 2007 CVC:

13202.5. (a) For each conviction of a person for any offense
specified in subdivision (d), committed while the person was under
the age of 21 years, but 13 years of age or older, the court shall
suspend the person's driving privilege for one year.

And 13202.5(d)(4)

(4) Section 23103 when subject to Section 23103.5, Section 23140,
and Article 2 (commencing with Section 23152) of Chapter 12 of
Division 11 of this code.

I may be missing something in some other code, but that seems to indicate that the court orders the suspension.

Further, pursuant to subsection (c) it appears that it is the court that can decide about whether a restriction should be granted.

It would seem that there are two avenues for a suspension - one being by the court, and the other by the DMV. Unless one of these sections is invalidated elsewhere.

- Carl

 

[garrula lingua]

Here's an example from the 2007 CVC:

13202.5. (a) For each conviction of a person for any offense
specified in subdivision (d), committed while the person was under
the age of 21 years, but 13 years of age or older, the court shall
suspend the person's driving privilege for one year.

And 13202.5(d)(4)

(4) Section 23103 when subject to Section 23103.5, Section 23140,
and Article 2 (commencing with Section 23152) of Chapter 12 of
Division 11 of this code.

I may be missing something in some other code, but that seems to indicate that the court orders the suspension.

Further, pursuant to subsection (c) it appears that it is the court that can decide about whether a restriction should be granted.

It would seem that there are two avenues for a suspension - one being by the court, and the other by the DMV. Unless one of these sections is invalidated elsewhere.

- Carl

Carl, you're pulling up 23140 - juvie under the influ (an infraction, doesn't even qualify as prior DUI) and a 23103 per 23103.5 - a wet and reckless ----- neither is a DUI.

We were talking about 23152(a and (b) - adult DUIs in California --- The Court does not suspend the DL, ever since 10/05 (the Judge can order it, but it has no legal effect -it is an invalid order.) DMV is now in charge of the suspension.
Judges were suspending for zero or three, six, nine or twelve months with no consistency between courts.
Note the new (2005) required suspensions in the Vehicle Code 13352, et seq.

No reason a cop would know that, unless they were an attorney or court clerk on the side.
The cop's job is arresting, investigating and testifying. Why would they know the sentencing nuances and how they've changed ?

It is important that DUI offenders understand that they can kiss up to the Judge; they may have attys who tell them the Judge didn't suspend their DL & they may figure that because the Judge didn't suspend their DL, they can keep driving, etc. (A lot of defense attorneys don't explain this, as they should).

WRONG - they must comply with DMV requirements as stated in VC 13352. A lot of defense attorneys don't explain this, as they should.


When you get a DUI in California 23152a or b, DMV is in charge of suspensions, not the court. Offenders should follow DMV requirements for a restricted or reinstated
license. It is the offender's responsibility to comply with these DMV requirements, regardless of what happened in court.
A CA Judge has no authority, on a 23152 to prevent or diminish a DMV suspension.

The Judge can only disallow a restricted DL issued by DMV.

 

[CdwJava]

Oh .. duh ... I missed the age portion of it - I was scanning just for the 23152. I didn't read further as I should have.

Oh well ... as you said, my function isn't to deal with sentencing - fortunately.

I have often found that there are little bits and pieces in other codes that don't exist in the codes one might think they would be in. I wonder how often codes actually come into serious and direct conflict with one another? I would think that it happens with some regularity ... legislators' political aides being appointees and all.

- Carl

 

[garrula lingua]

Oh .. duh ... I missed the age portion of it - I was scanning just for the 23152. I didn't read further as I should have.

Oh well ... as you said, my function isn't to deal with sentencing - fortunately.

I have often found that there are little bits and pieces in other codes that don't exist in the codes one might think they would be in. I wonder how often codes actually come into serious and direct conflict with one another? I would think that it happens with some regularity ... legislators' political aides being appointees and all.

- Carl

OK, I was snarky. Sorry.
The vehicle code is laid out very poorly - the consequences for a 23152 DUI are in 23536 (who's going to read all the irrelevant codes in between without getting distracted).

I saw many people screwed up by their misunderstanding - that because the Judge didn't suspend their DL, they believed it was still valid.
Or worse, some Judges who didn't understand when the law changed 10/05 & were still ordering three month suspensions when DMV was doing six months or one year (surprise, surprise, to the defendants - DMV trumps the Judge's invalid order. These people faced a mandatory 10 days jail for driving on a suspended license).

Oh well, DMV suspends the license, not the Judge, on a 23152 DUI in CA.

Stay safe, Carl.

 

[CdwJava]

OK, I was snarky. Sorry.

Nah ... I was just cranky for not looking at the section in its entirety. There have been a couple or three times where I have been caught flat-footed on stuff I should have caught, and I want to whip myself with wet noodles ... but the dry cleaning on my uniform would be killer!

- Carl