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effery B. was accused of a .27 BAC on a second time DUI resulting from a traffic accident and hit and run. He was also charged with a violation of probation for the 1st DUI. RESULT: The 2nd time DUI was dismissed based on the 6th Amendment and his probation on the 1st DUI was terminated. Eric V. was charged with a .33 BAC on a 3rd time DUI. RESULT: We won the DMV hearing on a Title 17 violation and saved his license from a minimum suspension of 6 months. Results like these are obtainable with a DUI lawyer from the best DUI law firm who can get through the DUI Facts and Drunk Driving myths about your DUI Defense. Joe B. was charged with a .29 BAC on a 1st time DUI. We filed and heard a motion to suppress under penal code 1538.5. RESULT: The judge ruled in our favor and dismissed the case Results like these are obtainable with a San Bernardino DUI Lawyer from the best DUI law firm who can get through the DUI Facts and Drunk Driving myths about your DUI Defense. Hass E. was charged with a 2nd time DUI while he was still on probation for his first. The DA alleged that he had a .28 blood BAC, an accident at over 100 mph, and charged him with a VOP. Before trial the DA wanted Mr. E to do 120 of county jail, 90 days of a SCRAM braclet, and a $2000 fine. TRIAL: We started trial and after we excluded some evidence through the Motion in Limine process the DA re-evaluated their case. RESULT: DUI dismiss, Mr. E pled to a wet/reckless, NO jail time, NO scram, NO VOP, and a $800 fine. Results like these are obtainable with a San Bernardino DUI Lawyer from the best DUI law firm who can get through the DUI Facts and Drunk Driving myths about your DUI Defense. . Daniel S. was charge with a .20% BAC after he had a solo car crash. Based on my highly regarded skills as a San Bernardino DUI Lawyer I was able to get his case DISMISSED IN COURT AND I WON THE DMV HEARING. This was the result of skill and hard work and of course I found a 4th Amendment violation. Results like these are obtainable with a San Bernardino DUI Lawyer from the best DUI law firm who can get through the DUI Facts and Drunk Driving myths about your DUI Defense. Christopher B. was charged with a 3rd time DUI. His 2 priors were in another state. We filed a "Motion to Strike the Priors" asserting that the out of state dui's did not meet the California equivalency test. RESULT: His out of state of priors were stricken from the record, so instead of facing a 3rd time DUI in California, he is now only facing a 1st time DUI. Results like these are obtainable with a San Bernardino DUI Lawyer from the best DUI law firm who can get through the DUI Facts and Drunk Driving myths about your DUI Defense. Angelina T. was charged with a DUI with an alleged BAC of .17 after she had crashed into a police station. RESULT: We won the DMV hearing and saved her license. The court issues was resolved for a no-jail time plea. Results like these are obtainable with a San Bernardino DUI Lawyer from the best DUI law firm who can get through the DUI Facts and Drunk Driving myths about your DUI Defense. Samuel T. was charged with a DUI with an alleged .14 BAC after he was stopped for swerving while exiting the freeway. RESULT: We subpoenaed the dash cam video which helped up win the DMV hearing and we were able to get the entire court case dismissed based on an illegal stop. Results like these are obtainable with a San Bernardino DUI Lawyer from the best DUI law firm who can get through the DUI Facts and Drunk Driving myths about your DUI Defense. Joe M. was charged with a .079 PAS and a .06 blood BAC after he had a solo accident on the freeway. This was a 2nd time DUI. RESULT: The DUI charges were dismissed after he pled guilty to 2 traffic violations. Results like these are obtainable with a San Bernardino DUI Lawyer from the best DUI law firm who can get through the DUI Facts and Drunk Driving myths about your DUI Defense. Wesley C. was accused of a .19 BAC, having a loaded gun in the car and was pulled over for allegedly weaving. RESULT: We filed a 1538.5 motion to suppress. On the day of the hearing we got the DA to dismiss the DUI and gun charge in exchange to a plea of reckless driving under cvc 23103.5. Results like these are obtainable with a San Bernardino DUI Lawyer from the best DUI law firm who can get through the DUI Facts and Drunk Driving myths about your DUI Defense. Melissa W. was charged with a .23 BAC on a 2nd time DUI. We filed a motion challenging the officer's reason for the stop after he alleged she "straddled" the lanes. RESULT: Case Dismissed. Results like these are obtainable with a San Bernardino DUI Lawyer from the best DUI law firm who can get through the DUI Facts and Drunk Driving myths about your DUI Defense. Joel D. was charged with a .18 blood BAC after he had a car accident on the freeway at 2:00 in the morning. Joel had poor field sobriety test and allegedly a strong odor of alcohol on his breath. RESULT: We won the DMV hearing and saved his license and his ability to get back and forth to work. We showed that the BAC result was ambiguous as to the date of testing and the date of reporting. Results like these are obtainable with a San Bernardino DUI Lawyer from the best DUI law firm who can get through the DUI Facts and Drunk Driving myths about your DUI Defense. ~~Dennis H: was charged with a .10 BAC after he allegedly failed the field sobriety tests and had a strong odor of alcohol on his breath. RESULT: ALL DUI charges dismissed. Dennis plead guilty to a moving traffic violation. We also overturned his loss at the DMV and got his license back. ~~Results like these are obtainable with a San Bernardino DUI Lawyer from the best DUI law firm who can get through the DUI Facts and Drunk Driving myths about your DUI Defense. Jacob Q: was charged with a DUI after he had a solo car crash. The police arrived and after investigation they arrested Jacob. RESULT: At the DMV hearing I was able to show that the police officer could NOT establish that Jacob drove a vehicle within 3 hours of the blood test. Thus, I saved his license, the increased cost of auto insurance, and the 10 year mark on his driving record. ~~Results like these are obtainable with a San Bernardino DUI Lawyer from the best DUI law firm who can get through the DUI Facts and Drunk Driving myths about your DUI Defense. Danielle M: was charged with a .18 blood BAC after she was stopped for weaving. After some considerable time and effort we were able to plead it down to a wet/reckless under 23103.5 ~~Results like these are obtainable with a San Bernardino DUI Lawyer from the best DUI law firm who can get through the DUI Facts and Drunk Driving myths about your DUI Defense. Diana L: was charged with a .10 blood BAC. During the discovery process we found out that the phlebotomist had done 2 blood draws at once and may have mixed up the vials during the labeling process. What was also odd was that our client blew a .06 at the station after the blood draw on a PAS breath unit. RESULT: case reduced to a dry reckless and the dui charges were dismissed. We were also able to overturn the previous loss at the DMV and reinstate her full license. ~~Results like these are obtainable with a San Bernardino DUI Lawyer from the best DUI law firm who can get through the DUI Facts and Drunk Driving myths about your DUI Defense. Michael T: was charged with a DUI MARIJUANA: RESULT: We filed a motion to suppress the blood result on a 4th Amendment violation of Michael's constitutional rights, we also did extensive discovery for the Gas Chromatograms on the blood test results. We finally got the DUI charges dismissed in exchange to a plea on a "dry reckless". ~~Results like these are obtainable with a San Bernardino DUI Lawyer from the best DUI law firm who can get through the DUI Facts and Drunk Driving myths about your DUI Defense. Marcus A. was charged with a .15 blood BAC after he had a 3 car accident on the freeway and after he was alleged by the other drivers to have been the cause of the collision. RESULT: We won the DMV because they could not prove the allegations under vehicle code 23152(b) as having the blood test performed within 3 hours of the time of driving. This saved his license and his job. ~~Results like these are obtainable with a San Bernardino DUI Lawyer from the best DUI law firm who can get through the DUI Facts and Drunk Driving myths about your DUI Defense. Elke C. was charged with a .25 BAC after she alleged drove her car off a small hill into a river bottom. RESULT: We won the DMV hearing and saved her license after we showed that the officer could not prove her blood test was completed within 3 hours of driving. ~~Results like these are obtainable with a San Bernardino DUI Lawyer from the best DUI law firm who can get through the DUI Facts and Drunk Driving myths about your DUI Defense. Jeffery B. was accused of a .27 BAC on a second time DUI resulting from a traffic accident and hit and run. He was also charged with a violation of probation for the 1st DUI. RESULT: The 2nd time DUI was dismissed based on the 6th Amendment and his probation on the 1st DUI was terminated. This was accomplished by his San Bernardino DUI Lawyer who knew the DUI facts and drunk driving myths. 1. Eric V. was charged with a .33 BAC on a 3rd time DUI. RESULT: We won the DMV hearing on a Title 17 violation and saved his license from a minimum suspension of 6 months. Joe B. was charged with a .29 BAC on a 1st time DUI. We filed and heard a motion to suppress under penal code 1538.5. RESULT: The judge ruled in our favor and dismissed the case. This only could have happen as a result of the hard work from his San Bernardino DUI Lawyer. Hass E. was charged with a 2nd time DUI while he was still on probation for his first. The DA alleged that he had a .28 blood BAC, an accident at over 100 mph, and charged him with a VOP. Before trial the DA wanted Mr. E to do 120 of county jail, 90 days of a SCRAM braclet, and a $2000 fine. TRIAL: We started trial and after we excluded some evidence through the Motion in Limine process the DA re-evaluated their case. RESULT: DUI dismiss, Mr. E pled to a wet/reckless, NO jail time, NO scram, NO VOP, and a $800 fine. ~~This only could have happen as a result of the hard work from his San Bernardino DUI Lawyer. Daniel S. was charge with a .20% BAC after he had a solo car crash. Based on my highly regarded skills as a San Bernardino DUI Lawyer I was able to get his case DISMISSED IN COURT AND I WON THE DMV HEARING. This was the result of skill and hard work and of course I found a 4th Amendment violation. Christopher B. was charged with a 3rd time DUI. His 2 priors were in another state. As his San Bernardino DUI Lawyer we filed a "Motion to Strike the Priors" asserting that the out of state dui's did not meet the California equivalency test. RESULT: His out of state of priors were stricken from the record, so instead of facing a 3rd time DUI in California, he is now only facing a 1st time DUI. This only could have happen as a result of the hard work from his San Bernardino DUI Lawyer Angelina T. was charged with a DUI with an alleged BAC of .17 after she had crashed into a police station. RESULT: We won the DMV hearing and saved her license. The court issues was resolved for a no-jail time plea. This only could have happen as a result of the hard work from his San Bernardino DUI Lawyer Samuel T. was charged with a DUI with an alleged .14 BAC after he was stopped for swerving while exiting the freeway. RESULT: We subpoenaed the dash cam video which helped up win the DMV hearing and we were able to get the entire court case dismissed based on an illegal stop. Again the results of his San Bernardino DUI Lawyer. Joe M. was charged with a .079 PAS and a .06 blood BAC after he had a solo accident on the freeway. This was a 2nd time DUI. RESULT: The DUI charges were dismissed after he pled guilty to 2 traffic violations. Another win for the San Bernardino DUI Lawyer. Wesley C. was accused of a .19 BAC, having a loaded gun in the car and was pulled over for allegedly weaving. RESULT: His San Bernardino DUI Lawyers filed a 1538.5 motion to suppress. On the day of the hearing we got the DA to dismiss the DUI and gun charge in exchange to a plea of reckless driving under cvc 23103.5. One more win from the San Bernardino DUI Lawyer. Melissa W. was charged with a .23 BAC on a 2nd time DUI. As her San Bernardino DUI Lawyers we filed a motion challenging the officer's reason for the stop after he alleged she "straddled" the lanes. RESULT: Case Dismissed. Another happy client from the hard work of the San Bernardino DUI Lawyer Joel D. was charged with a .18 blood BAC after he had a car accident on the freeway at 2:00 in the morning. Joel had poor field sobriety test and allegedly a strong odor of alcohol on his breath. RESULT: As his San Bernardino DUI Lawyer we won the DMV hearing and saved his license and his ability to get back and forth to work. We showed that the BAC result was ambiguous as to the date of testing and the date of reporting. San Bernardino DUI Lawyers saved his DMV drivers license. Dennis H: was charged with a .10 BAC after he allegedly failed the field sobriety tests and had a strong odor of alcohol on his breath. RESULT: ALL DUI charges dismissed. Dennis plead guilty to a moving traffic violation. We also overturned his loss at the DMV and got his license back. Only the experience from the best dui law firm and the best San Bernardino DUI Lawyers in could have achieved a dismissal like this and to overturn the DMV loss. Jacob Q: was charged with a DUI after he had a solo car crash. The police arrived and after investigation they arrested Jacob. RESULT: At the DMV hearing I was able to show that the police officer could NOT establish that Jacob drove a vehicle within 3 hours of the blood test. Thus, I saved his license, the increased cost of auto insurance, and the 10 year mark on his driving record. More work from San Bernardino DUI Lawyer. Danielle M: was charged with a .18 blood BAC after she was stopped for weaving. After some considerable time and effort San Bernardino DUI Lawyers were able to plead it down to a wet/reckless under 23103.5 Diana L: was charged with a .10 blood BAC. During the discovery process her San Bernardino DUI Lawyers found out that the phlebotomist had done 2 blood draws at once and may have mixed up the vials during the labeling process. What was also odd was that our client blew a .06 at the station after the blood draw on a PAS breath unit. RESULT: case reduced to a dry reckless and the dui charges were dismissed. San Bernardino DUI Lawyers were also able to overturn the previous loss at the DMV and reinstate her full license. Michael T: was charged with a DUI MARIJUANA: RESULT: We filed a motion to suppress the blood result on a 4th Amendment violation of Michael's constitutional rights, we also did extensive discovery for the Gas Chromatograms on the blood test results. We finally got the DUI charges dismissed in exchange to a plea on a "dry reckless". More fine work from San Bernardino DUI Lawyer. Marcus A. was charged with a .15 blood BAC after he had a 3 car accident on the freeway and after he was alleged by the other drivers to have been the cause of the collision. RESULT: We won the DMV because they could not prove the allegations under vehicle code 23152(b) as having the blood test performed within 3 hours of the time of driving. This saved his license and his job. Again , through the dedication of the San Bernardino DUI Lawyer we were successful on this dui case. Elke C. was charged with a .25 BAC after she alleged drove her car off a small hill into a river bottom. RESULT: We won the DMV hearing and saved her license after we showed that the officer could not prove her blood test was completed within 3 hours of driving. More fine work from San Bernardino DUI Lawyer. Moises K. was charged with a .10 BAC after he allegedly REFUSED to give a breath sample. The DMV instituted actions to suspend his license for 1 year. RESULT: At the hearing we proved that he did not refuse and we saved him his license and his job. At the hearing we showed that the FST were not done correctly by the officer and put on our own proof as to our client's medical issues. COURT RESULT: All DUI charges were dismissed in exchange for a plea to a dry-reckless. More fine work from San Bernardino DUI Lawyer. Mauricio C. was charged with a .12 BAC after a person called 911 to report that the thought he was DUI. We did a motion to suppress under penal code 1538.5 challenging the officer's reason for the stop under the case law of People v. Wells. RESULT: DUI charges dismissed, client plead to guilty to a 23103.5, and we are currently appealing the denial of the motion to suppress. Again , through the dedication of the San Bernardino DUI Lawyer we were successful on this dui case. Eric H. was accused of refusing to take a blood test, several officers had to tie him down in order to draw blood, a .18 BAC. RESULT: We won the DMV Refusal hearing which saved him a year of suspension and got him no jail time on his court case. More fine work from San Bernardino DUI Lawyer. Tricia J. was accused of a .13 BAC. At the DMV Hearing we challenged the validity of the probable cause. RESULT: We won the DMV hearing and saved her license. David R. was accused of a .12 BAC. At the DMV Hearing we challenged the lawfulness of the arrest. RESULT: We won the DMV Hearing and saved his license. More fine work from San Bernardino DUI Lawyer. Arnel B. Was charge with DUI after the police stopped him for allegedly speeding. We filed a motion to suppress under PC 1538.5 challenging the officer's alleged reason for the stop was not satisfied by the use of his LIDAR Gun. RESULT: Both DUI charges dismissed,client pled to a speeding infraction and no turn signal infraction. Both were no point counts with the DMV. Again , through the dedication of the San Bernardino DUI Lawyer we were successful on this dui case. Amalik A. was charged with a 2nd time DUI while he was still on probation for the 1st offense. He had an auto accident, a BAC of .17, and a high level of Marijuana in his system. RESULT: All DUI counts dismissed, he pled to a reckless driving under cvc 23103. More fine work from San Bernardino DUI Lawyer. Bart D. was charged with a DUI after having a BAC of .20. It was alleged that Bart had been swerving and almost hitting a police officer head on, running into the curb, and vomited all over himself. We filed a 6th Amendment motion challenging the violation of his rights to a speedy trial. RESULT: After hearing the motion in open court the case was Dismissed. Again , through the dedication of the San Bernardino DUI Lawyer we were successful on this dui case. Marvin M. was charged with a Drug DUI, allegedly being under the influence of 4 types of pain medication after he was observed swerving across several lanes of travel. RESULT: DUI dismiss/reduced to 2 driving infractions. Again , through the dedication of the San Bernardino DUI Lawyer we were successful on this dui case. Cyerra R. was charged with a DUI as a minor since she was only 18 years old. Her BAC was alledged to be a .14. RESULT: We won the DMV hearing and saved her license from 12 months of suspension. More fine work from San Bernardino DUI Lawyer. Eric S. was charged with DUI after having a .10 BAC. It was alledged that he was speeding, doing 65mph in a 35 mph zone, that he made a wide right turn almost hitting a curb, almost lost control, and did not respond the the officer's loud speaker to pull over. RESULT: WE TOOK THIS TO TRIAL AND GOT 12 PEOPLE TO VOTE NOT GUILTY ON BOTH COUNTS. Richard P. was charged with a DUI after having a BAC of .13 and a PAS machine reading of .14. RESULT: Richard pled to a wet-reckless under cvc 23103.5, this was achieved after an extensive cross examination of the officer at the DMV hearing in which he admitted that Richard did not show any signs of mental or physical impairment. Richard elected to take this plea instead of proceeding to a jury trial. More fine work from San Bernardino DUI Lawyer. Romney N. : was accused of a DUI with a blood alcohol of .22. We fought the case on the officer's inability to prove that he had been driving within 3 hours of his blood test. RESULT: We beat the DMV hearing and saved his license. Monica S. : was accused of a DUI with a blood alcohol of .20. The issue in her case was that she was not the driver. RESULT: After the conclusions of 3 DMV hearings in which we crossed examined the officer and we presented our own independent witness, we Won the DMV hearing and saved her license. Daniel R. was charged with a DUI with an alleged BAC of .10. The issue in his case was they could not prove his driving was within 3 hours of his blood test. RESULT: based on the facts the DUI was dismissed and he pled to a misdemeanor vandalism. More fine work from San Bernardino DUI Lawyer. Ricardo F. was charged with a 2nd DUI and an alleged BAC of .15. We challenged the stop with a 1538.5 motion to suppress. At the hearing we showed that the officer had lied in contrast to what he previously told the DDA. RESULT: case reduced to a reckless driving cvc 23103.5 Deborah P. was charged with a DUI and a high BAC of .23 allegedly picking up her children from school drunk. RESULT: No jail time. Again , through the dedication of the San Bernardino DUI Lawyer we were successful on this dui case. Nicholas P. was 18 years old and charged with an alleged .07 BAC on a first time DUI. He was stopped for allegedly doing 90 mph on the freeway. As an underage driver his legal limit was zero tolerance, a .01. RESULT: Case dismissed after he pled to a DRY reckless. More fine work from San Bernardino DUI Lawyer. Mario R. was charged with a DUI with an allegation that he had Marijuana in his system. RESULT: Case Dismissed after he pled to 2 traffic violations. Again , through the dedication of the San Bernardino DUI Lawyer we were successful on this dui case. Bobby A. was charged with a DUI and a BAC of .07 after the officer allegedly followed Bobby out of a bar in Fontana. RESULT: DUI dismissed reduced to running a stop sign. ROSALIO R. was charged with a DUI and a BAC of .07. RESULT: Case dismissed. Again , through the dedication of the San Bernardino DUI Lawyer we were successful on this dui case. Ray R. was charged with a .07 DUI as a minor. We proceeded to court and the matter was heard as a bench trial. RESULT: Client acquitted of all charges. David M. was charged with a DUI. RESULT: Case reduced to reckless driving under cvc 23103.5 Again , through the dedication of the San Bernardino DUI Lawyer we were successful on this dui case. Gary A. was charged with a 2nd time DUI and an alleged BAC of .11. It was alleged that he did not immediately stop for the officers and he had very poor Field Sobriety Test. We took the case to trial. RESULT: After nearly 3 days of jury deliberations they were deadlocked. However, they ultimately convicted my client. The good news is that he only had to do 4 days of community service in contract to the 40 days of jail time the DDA wanted prior to trial. Again , through the dedication of the San Bernardino DUI Lawyer we were successful on this dui case. Hailey L. was charge with a DUI with an allegation that she was a .14 BAC. The problem was that she was a minor and her legal limit is .01. We filed a 1538.5 motion to suppress because under the community caretaker exception to 4th Amendment could not be satisfied by the officer under the controlling case of People v. Madrid. RESULT: The prosecution stipulated to a finding of NOT GUILTY on the 23152(b) count and 23136(a) count, dismiss 23152(a), that her blood was not over .01, and she pled to 23103.5. This allowed us to send a certified copy of the docket up to mandatory action in Sacramento and have her 1 year suspension lifted from her driver's license. David M. : DUI RESULT: Reduced to wet/reckless. Again , through the dedication of the San Bernardino DUI Lawyer we were successful on this dui case. J. Castro. was charged with a .08, alleged to have been weaving. RESULT: Dismissed. More fine work from San Bernardino DUI Lawyer. * This is not a guarantee or indication of the outcome to your case.

8 Cal.3d 345 (1985)
696 P.2d 134
211 Cal. Rptr. 742

JOAN KATHRYN WILKOFF, Petitioner,
v.
THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; THE PEOPLE, Real Party in Interest.

Docket No. L.A. 31942.

Supreme Court of California.

March 18, 1985.

346*346 COUNSEL

Ronald Y. Butler, Public Defender, Frank Scanlon, Assistant Public Defender, James Dean Allen, Vicki Briles and Leonard Gumlia, Deputy Public Defenders, for Petitioner.

347*347 No appearance for Respondent.

Cecil Hicks, District Attorney, Michael R. Capizzi, Assistant District Attorney, William W. Bedsworth and Randell L. Wilkinson, Deputy District Attorneys, for Real Party in Interest.

Darryl W. Genie as Amicus Curiae.

OPINION

BROUSSARD, J.

The issue in this case is whether one instance of driving under the influence which causes injury to several persons is chargeable as one count of driving under the influence or as several.

The pertinent statute is Vehicle Code section 23153,[1] which at the time of the accident in question provided, in relevant part:

"(a) It is unlawful for any person, while under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug, to drive a vehicle and, when so driving, do any act forbidden by law or neglect any duty imposed by law in the driving of the vehicle, which act or neglect proximately causes death or bodily injury to any person other than the driver.

"(b) It is unlawful for any person while having 0.10 percent or more, by weight, of alcohol in his or her blood to drive a vehicle and, when so driving, do any act forbidden by law or neglect any duty imposed by law in the driving of the vehicle, which act or neglect proximately causes death or bodily injury to any person other than the driver."[2]

Defendant petitions this court for relief from denial of her motion to set aside counts IV through XIII of the information, pursuant to Penal Code section 995.

The information alleges that at approximately 12:45 a.m. on August 13, 1983, defendant executed an improper lane change on the Pacific Coast 348*348 Highway in Huntington Beach, California, which resulted in a four-vehicle collision causing the death of one individual and injuring five others. It is further alleged that the blood alcohol level in the sample extracted from defendant was 0.19 percent.

Defendant was charged with one count of vehicular manslaughter for the one death she caused. (Pen. Code, § 192.) She was also charged with a count of driving under the influence of alcohol (§ 23153, subd. (a)) and a count of driving with a blood alcohol level of 0.10 or above (§ 23153, subd. (b)) for each of the six persons injured or killed. Thus, defendant was charged with 13 counts in all.

Defendant brought a motion to dismiss ten of the drunk driving counts, arguing that only one count of section 23153, subdivision (a) and one count of subdivision (b) can arise from a single incident of driving under the influence. The trial court denied the motion to strike the repetitive counts and defendant petitions for a writ of prohibition or mandamus.

DISCUSSION

The law on the question of multiple counts of felony drunk driving has been settled in the Courts of Appeal for over 13 years, since the decision in People v. Lobaugh(1971) 18 Cal. App.3d 75 [95 Cal. Rptr. 547]. The court in Lobaugh held that "a person who has violated section 23101 whether one, or several, persons be injured thereby, has committed but one offense." (Id., at p. 79.)[3] Other Courts of Appeal have uniformly followed Lobaugh (People v. Moore (1971) 20 Cal. App.3d 444 [97 Cal. Rptr. 601]) or discussed it as settled law. (See People v. Eagles(1982) 133 Cal. App.3d 330, 343 [183 Cal. Rptr. 784]; In re Frank F. (1979) 90 Cal. App.3d 383, 386 [153 Cal. Rptr. 375]; People v. Rocha (1978) 80 Cal. App.3d 972, 976 [146 Cal. Rptr. 81]; People v. Lockheed Shipbuilding & Constr. Co. (1977) 69 Cal. App.3d Supp. 1, 13-14 [138 Cal. Rptr. 445].)

The district attorney asks us to reverse this line of authority and return to the contrary rule stated in People v. Young (1964) 224 Cal. App.2d 420, 424 [36 Cal. Rptr. 672]. However, the issue before us was addressed in only a single sentence in Young (discussed below), and that sentence has not been 349*349 explained or cited — except to question it — in the more than 20 years since its publication. The district attorney must therefore make his argument anew.

(1a) Presented with this issue for the first time, we now approve the view expressed in People v. Lobaugh that one instance of drunk driving is chargeable as only one count of felony drunk driving (i.e., one count of § 23153, subd. (a) and one count of subd. (b)) even if more than one person is injured thereby.[4]

Our analysis begins with the recognition that a charge of multiple counts of violating a statute is appropriate only where the actus reus prohibited by the statute — the gravamen of the offense — has been committed more than once. The act prohibited by section 23153 is the act of driving a vehicle while intoxicated and, when so driving, violating any law relating to the driving of a vehicle. InLobaugh the court found that this act was committed only once, since there was only one driving incident, despite the fact that injuries to several persons were proximately caused thereby. The emphasis in Lobaugh was on the act constituting the gravamen of the offense since, as we have said, the number of times the act is committed determines the number of times the statute is violated: "The unlawful act denounced by the Vehicle Code is the `mere act of driving a vehicle upon a public highway while intoxicated'; the act is either a misdemeanor or a felony, depending on whether personal injuries result therefrom. The felony section simply `graduate[s] the punishment according to the [more serious] consequences of the forbidden act.'" (People v. Lobaugh, supra, 18 Cal. App.3d at pp. 79-80, citations omitted, brackets in original.) The concurring opinion of Justice Sims further pointed out that "[t]he question of `bodily injury' is only of materiality in that it aggravates the offense [from a misdemeanor to a felony]. The fact that there are several victims cannot transform the single act into multiple offenses." (Id., at p. 84, italics in original.)

By way of contrast, we apply the same analysis to the crime of vehicular manslaughter. The actus reus of vehicular manslaughter is homicide — the unlawful killing of a human being.[5] (2) When a defendant commits several 350*350homicides in the course of a single driving incident, he or she has committed the act prohibited by the statute several times. Thus, the Courts of Appeal have consistently upheld multiple counts of vehicular manslaughter, while prohibiting multiple counts of felony drunk driving. "[I]t is settled that under the manslaughter statutes, each victim represents a separate violation (People v. De Casaus (1957) 150 Cal. App.2d 274, 280 [309 P.2d 835]), but that in a prosecution under section 23101 of the Vehicle Code, the number of violations does not increase with each additional victim. (People v. Moore (1971) 20 Cal. App.3d 444, 450-451 [97 Cal. Rptr. 601]; People v. Lobaugh (1971) 18 Cal. App.3d 75, 79-80 [95 Cal. Rptr. 547].)" (In re Frank F., supra, 90 Cal. App.3d at p. 386. Accord, People v. Eagles, supra, 133 Cal. App.3d at p. 343; People v. Lockheed Shipbuilding & Constr. Co., supra, 69 Cal. App.3d Supp. 1, 13-14.)[6]

The district attorney takes issue with a statement in People v. Lobaugh — removed from its context — that "[u]nlike the usual `multiple victim' case, here the fundamental concern of the state is not the outrage done the victims, but rather the prevention of `drunken driving' and the punishment of those who so conduct themselves." (People v. Lobaugh, supra, 18 Cal. App.3d at p. 79.) The district attorney concludes from this sentence that the court in Lobaugh mistakenly believed that injuries caused by drunk drivers were only a secondary concern of the Legislature. However, the passage immediately following the quoted sentence[7] shows that the court was merely expressing the analytical notion that the act prohibited by the statute was the act of driving, not the act of injuring persons. It is preposterous to suggest — and the court in Lobaugh did not do so — that the Legislature somehow prohibited drunk driving for its own sake, and not because of the untold injuries it causes to citizens of the state. Injury to another person is, in fact, the basis upon which the offense of drunk driving is enhanced to a felony.

The district attorney next points to the familiar rule from Neal v. State of California(1960) 55 Cal.2d 11, 20 [9 Cal. Rptr. 607, 357 P.2d 839], that 351*351 where a single act of violence against the person results in multiple victims, multiple punishments are permitted. This rule is an exception to Penal Code section 654, which generally prohibits multiple punishment for a single criminal act.[8] In Neal we explained that "[t]he purpose of the protection against multiple punishment is to insure that the defendant's punishment will be commensurate with his criminal liability. A defendant who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person. For example, a defendant who chooses a means of murder that places a planeload of passengers in danger, or results in injury to many persons, is properly subject to greater punishment than a defendant who chooses a means that harms only a single person. This distinction between an act of violence against the person that violates more than one statute and such an act that harms more than one person is well settled." (Id.,at p. 20.)

In a recent case interpreting the Neal rule, People v. Ramos (1982) 30 Cal.3d 553 [180 Cal. Rptr. 266, 639 P.2d 908], reversed on other grounds, California v. Ramos(1983) 463 U.S. 992 [77 L.Ed.2d 1171, 103 S.Ct. 3446] (Ramos I), we held that the taking of a single item of property from the possession or presence of two persons was chargeable as two counts of robbery. (Id., at pp. 587-589.) As in the case before us today, we inquired whether the "central element" of the offense — the act prohibited by the statute — had been committed more than once, and found that it had: "Robbery is not merely the felonious taking of personal property. Such a taking, without more, is only theft.... [¶] We view the central element of the crime of robbery as the force or fear applied to the individual victim in order to deprive him of his property. Accordingly, if force or fear is applied to two victims in joint possession of property, two convictions of robbery are proper." (Id., at p. 589; fn. omitted.)

In citing the Neal rule, the district attorney overlooks the threshold inquiry that concerned us in Ramos I and that is the focus of our discussion in the case at bar. (3) A defendant may properly be convicted of multiple counts for multiple victims of a single criminal act only where the act prohibited by the statute is centrally an "act of violence against the person." (Neal, supra, 55 Cal.2d at p. 20.) In Neal, for instance, the defendant was properly charged with two counts of attempted murder where he set fire to a couple's home in an attempt to murder them.[9] In People v.Gaither (1959) 352*352 173 Cal. App.2d 662, 668 [343 P.2d 799], the defendant was charged with four counts of administering poison with the intent to kill where he mailed one package of poisoned candy to his ex-wife, and four members of her family ate it and became violently ill. In In re Sheridan (1964) 230 Cal. App.2d 365, 372-374 [40 Cal. Rptr. 894], four convictions of annoying or molesting children under the age of eighteen were upheld where petitioners induced four girls to enter petitioners' automobile for a ride. In People v. Prater (1977) 71 Cal. App.3d 695, 699 [139 Cal. Rptr. 566], two counts of assault with a deadly weapon were upheld where defendant shot his intended victim in the abdomen and the bullet passed through the victim's body and hit a second person. Multiple counts for multiple victims of manslaughter have also been upheld, as noted above. (See In re Frank F., supra, 90 Cal. App.3d at p. 386; People v. Eagles, supra, 133 Cal. App.3d at pp. 342-343. See also People v. Lockheed Shipbuilding & Constr. Co., supra, 69 Cal. App.3d Supp. at pp. 12-13.)

(1b) In contrast to the crimes of murder, manslaughter, administering poison, robbery and sex offenses — all of which are defined in terms of an act of violence against the person — the act prohibited by section 23153 is defined in terms of an act of driving: the driving of a vehicle while intoxicated and, when so driving, violating any law relating to the driving of a vehicle. The actus reus of the offense does not include causing bodily injury. Rather, where bodily injury proximately results from the prohibited act, the offense is elevated from a misdemeanor to a felony.

Defendants are not chargeable with a greater number of offenses simply because the injuries proximately caused by their single offense are greater. Rather, the Legislature may provide for increased punishment for an offense that has more serious consequences by, for instance, raising the statutory prison terms, adding enhancements, or upgrading the offense from a misdemeanor to a felony. The number and severity of injuries proximately caused by an offense may also be considered by a trial court in sentencing.

The district attorney relies on People v. Young, supra, 224 Cal. App.2d 420, where the court disposed of a challenge to multiple counts of drunk driving by simply restating the rule of Neal.[10] The court in Young did not address the arguments raised by petitioner here and did not engage in the threshold inquiry, discussed above, that is required before application of 353*353 the Neal rule. We therefore decline to rely on the decision in People v. Young.[11]

The district attorney's argument is, finally, fatally undercut by the fact that althoughLobaugh has been followed by the Courts of Appeal since 1971, the Legislature has not reacted to it despite repeated scrutiny of section 23153. Section 23153 (or its predecessor, former § 23101) was amended in 1972, 1976, 1977, 1978, 1980, 1981, 1982 and 1983, with a major rewriting and renumbering in 1981. (4) "Where a statute has been construed by judicial decision, and that construction is not altered by subsequent legislation, it must be presumed that the Legislature is aware of the judicial construction and approves of it." (People v. Hallner (1954) 43 Cal.2d 715, 719 [277 P.2d 393]; People v. Fox (1977) 73 Cal. App.3d 178, 181 [140 Cal. Rptr. 615].) "There is a strong presumption that when the Legislature reenacts a statute which has been judicially construed it adopts the construction placed on the statute by the courts." (Armstrong v. Armstrong (1948) 85 Cal. App.2d 482, 485 [193 P.2d 495].)[12]

(1c) Having set forth our reasoning and rejected the arguments of the district attorney, we now approve the rule first set forth in People v. Lobaugh, supra, that one instance of driving under the influence which causes injury to several persons is chargeable as only one count of driving under the influence. Let a peremptory writ of mandate issue commanding respondent 354*354 superior court to vacate its order in the instant case and to set aside counts IV through XIII of the information.

Bird, C.J., Mosk, J., Kaus, J., Reynoso, J., Grodin, J., and Lucas, J., concurred.

[1] All statutory references are to the Vehicle Code unless otherwise indicated.

[2] The term "felony drunk driving" is used herein to refer both to the traditional offense of driving under the influence (§ 23153, subd. (a)) and the recently devised offense of driving at a blood alcohol level of 0.10 or higher (§ 23153, subd. (b)).

Drunk driving that does not result in bodily injury to another person is chargeable as a misdemeanor under section 23152.

[3] Lobaugh was decided under former section 23101, the predecessor statute to section 23153. The substance of the statute has not been changed for our purposes. Former section 23101 provided, in pertinent part: "It is unlawful for any person, while under the influence of intoxicating liquor, or under the combined influence of intoxicating liquor and any drug, to drive a vehicle upon a highway, and when so driving, do any act forbidden by law or neglect any duty imposed by law in the driving of such vehicle, which act or neglect proximately causes death or bodily injury to any person other than himself."

[4] By "one instance" of drunk driving we refer to one volitional act of driving. Thus if a driver collides with one car and is involuntarily propelled into a second car, only "one instance" of driving has occurred. But if a driver collides with the first car and then voluntarily drives further and collides with a second car, then two acts of driving have occurred and the driver may be charged with two counts of felony drunk driving.

[5] At the time of Ms. Wilkoff's accident, Penal Code section 192 provided, in relevant part: "Manslaughter is the unlawful killing of a human being, without malice.... [¶] 3. In the driving of a vehicle — (a) In the commission of an unlawful act, not amounting to felony, with gross negligence; or in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence. (b) In the commission of an unlawful act, not amounting to felony, without gross negligence; or in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence...." (Italics added.)

[6] While the moral culpability of a drunk driver who causes death and a drunk driver under the same circumstances who merely causes injury may be the same, the Legislature has chosen to draw a line at this point by defining one crime in terms of an act of violence against the person ("unlawful killing") and placing it in the Penal Code, while defining the other in terms of an act of driving and placing it in the Vehicle Code. The Legislature has made this line even more clear through recent amendments to thedrunk driving and manslaughter statutes. Effective January 1, 1984, an intoxicated driver who kills another person is no longer chargeable with that death under the Vehicle Code, but may only be charged under the manslaughter statutes of the Penal Code. (See Stats. 1983, ch. 937, § 1, p. ___, amending § 23153 and Pen. Code, § 192.)

[7] That passage reads: "It was said in People v. Chatham, `... it is not the receiving of the injury that concerns the state, but the causing of such injuries which the state seeks to minimize.' The unlawful act denounced by the Vehicle Code is the `mere act of driving a vehicle upon a public highway while intoxicated.'" (People v. Lobaugh, supra, 18 Cal. App.3d at pp. 79-80, citation omitted, italics in original.)

[8] Penal Code section 654, in pertinent part, provides: "An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one; ..."

[9] Penal Code section 654, however, precluded punishment for arson as well as attempted murder, since both offenses were part of a single course of conduct having one objective. (Neal v. State of California, supra, 55 Cal.2d at p. 20.)

[10] The court in Young stated: "Appellant first contends he may not be punished for the injuries caused to both his victims, since injury to both resulted from the same act. Here appellant is in error, for Penal Code section 654 upon which he relies does not prohibit multiple punishment which concerns multiple victims. (Neal v. State of California, 55 Cal.2d 11, 20, 21 [9 Cal. Rptr. 607, 357 P.2d 839].)" (People v.Young, supra, 224 Cal. App.2d at p. 424, italics added.)

[11] The district attorney also draws our attention to Government Code section 13960, subdivision (c)(2), concerning crime victim indemnification, to show that a violation of section 23153 is there considered a "crime of violence" subject to the indemnification statutes. Therefore, the district attorney argues, driving under the influence should also be grouped with those "crimes of violence" that are subject to the Neal rule. (See People v. Miller (1977) 18 Cal.3d 873, 885 [135 Cal. Rptr. 654, 558 P.2d 552].)

No reasoning has been offered to support an analogy from the context of the crimes for which indemnification may be sought from the State Board of Control, to the context of charging practices in multiple victim offenses. The reasons for each rule are distinct and we cannot sensibly analogize from one context to the other.

Furthermore, the Government Code section cited by the district attorney was amended effective February 18, 1982 (prior to Ms. Wilkoff's accident) to delete "of violence" from the list of "crimes" that includes section 23153.

[12] The district attorney finally raises a procedural objection to defendant's petition. The district attorney objects to the use of a Penal Code section 995 motion to challenge repetitive counts at the pretrial stage. He would have defendant await conviction on all 13 counts and move to strike the excess convictions at the time of judgment, as occurred in Lobaugh and Moore. The reason for this objection is that if repetitive charges as to each victim are struck from the information, the district attorney will not know which counts to strike and which counts to retain.

The problem may be easily solved, however, by naming all the victims in a single count of felony drunkdriving (i.e., one count of violating § 23153, subd. (a) and one count of violating § 23153, subd. (b)) and using the injuries to any or all victims in order to prove that charge. This will give the district attorney ample opportunity to prove his case by showing bodily injury to at least one victim.








  dui lawyer 
54 Cal.App.4th 854 (1997)

THE PEOPLE, Plaintiff and Respondent,
v.
MICHAEL ONEAL WEEMS, Defendant and Appellant.

Docket No. H014769.

Court of Appeals of California, Sixth District.

April 29, 1997.

856*856 COUNSEL

Victoria L. Hernandez Booke and Marina Meyere Da Silveira, under appointments by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Ronald E. Niver and Clifford K. Thompson, Deputy Attorneys General, for Plaintiff and Respondent. dui lawyer riverside 

OPINION

COTTLE, P.J.

A jury found defendant Michael Oneal Weems guilty of two felonies, causing injury to another while driving under the influence of alcohol (Veh. Code, § 23153, subd. (a)) and causing injury to another while having 0.08 percent or more, by weight, of alcohol in his blood (Veh. Code, § 23153, subd. (b)).[1] Defendant was placed on probation for five years upon condition, inter alia, that he serve four months in county jail and pay $10,767.39 in restitution. On appeal defendant does not dispute he was driving under the influence of alcohol or that he was driving while having 0.08 percent or more, by weight, of alcohol in his blood. However, he contends his convictions must be reversed because the jury erroneously was 857*857instructed it could consider evidence of defendant's violation of the mandatory seat belt law (§ 27315) in determining whether, while driving under the influence or with the prohibited blood-alcohol percentage, he concurrently did an unlawful act or neglected a legal duty which proximately caused injury to another. For the reasons stated below, we conclude a driver's violation of our state mandatory seat belt law does constitute a concurrent "act forbidden by law, or neglect [of] any duty imposed by law in driving the vehicle" within the meaning of section 23153 and that, in this case, the seat belt violation was an "act or neglect" which "proximately cause[d] bodily injury to [a] person other than the driver." (§ 23153, subds. (a) and (b).) We therefore shall affirm the judgment. dui lawyer riverside 

FACTS

About midnight on November 17, 1993, defendant went to Skinney's Bar in Capitola where he drank four or five 10- to 12-ounce cups of beer. About three hours later, defendant left for San Jose in his sports car with passengers Miguel Moscoso and Brice Burnett. Burnett rode in the front passenger seat; both defendant and Burnett fastened their seat belts. Moscoso squeezed into the small rear seat, lay down, and eventually fell asleep. Moscoso did not secure his safety belt, and defendant admits he did not tell Moscoso to do so. On highway 17, defendant fell asleep at the wheel; his car spun "out of control" and crashed into a guardrail, causing major damage to the car. Moscoso was awakened by slamming against the car's ceiling and then was knocked out; he suffered scalp lacerations requiring 26 sutures, a compression fracture of a vertebrae, and a hand fracture when he hit a window in an involuntary reaction to the accident. When Officer Kimmey arrived at the accident scene at 3:17 a.m., he noticed defendant's alcoholic breath, slightly slurred speech, and red, watery eyes. After determining defendant had been the driver, Kimmey administered field sobriety tests during which defendant swayed and lost his balance. Defendant told Kimmey he had been driving 55 miles per hour before falling asleep.[2] Kimmey concluded defendant had been driving under the influence of alcohol and had violated the basic speed law (§ 22350), the prohibition against unsafe turning movements (§ 22107) and the requirement that his adult passengers be properly restrained by safety belts (§ 27315). Based upon skid marks and the stretch of road involved, Kimmey concluded defendant's speed had contributed to the accident. Blood drawn from defendant at 4:40 a.m. that morning was tested three times; the findings ranged from blood-alcohol levels of .082 to .088, and a forensic chemist later testified defendant probably had a blood-alcohol level of at least .10 percent at the time of the accident.

858*858 DISCUSSION dui lawyer riverside 

(1a) The sole question raised by this appeal is whether a defendant's failure to ensure all his adult passengers were wearing a safety belt, which is a violation of the mandatory "seat belt" law (§ 27315, subd. (d)(1)), may satisfy the neglect of duty element within section 23153, the statute which defines the felony offenses of driving under the influence and causing injury.[3] dui lawyer riverside 

(2) The elements of the felony offense described by section 23153, subdivision (a) are "(1) driving a vehicle while under the influence of an alcoholic beverage or drug; (2) when so driving,[[4]] committing some act which violates the law or is a failure to perform some duty required by law; and (3) as a proximate result of such violation of law or failure to perform a duty, another person was injured. [Citation.] Section 23153, subdivision (b), has the same elements except the first element is expressed as driving a vehicle `while having 0.08 percent or more, by weight, of alcohol in his or her blood....' [Citation.] To satisfy the second element, the evidence must show an unlawful act or neglect of duty in addition to driving under the influence." (People v. Minor (1994) 28 Cal. App.4th 431, 437-438 [33 Cal. Rptr.2d 641], italics omitted.) The unlawful act or omission "need not relate to any specific section of the Vehicle Code, but instead may be satisfied by the defendant's ordinary negligence. (§ 23153, subd. (c); People v. Oyaas (1985) 173 Cal. App.3d 663, 669 [219 Cal. Rptr. 243].)" (People v. Hernandez (1990) 219 Cal. App.3d 1177, 1185 [269 Cal. Rptr. 21].) dui lawyer riverside 

(1b) In the instant case, the trial court instructed the jury on the three elements of the charged offenses. Regarding the unlawful act or neglect of duty element, it instructed that the prosecution must prove defendant violated the basic speed law or the prohibition against unsafe turning movements, or that defendant was negligent in driving his vehicle. After defining negligence, the court instructed that, "in determining whether the defendant neglected any duty imposed by law," the jury could "consider" any violation of section 27315, which provided, at that time, that no person shall operate 859*859 a private passenger motor vehicle upon a highway unless all persons in his vehicle "four years of age or over are properly restrained by a safety belt." (§ 27315, subd. (d).)[5] dui lawyer riverside 

Defendant does not dispute the sufficiency of the evidence supporting each of these theories, and he concedes his failure to instruct his passenger to wear a safety belt "may have caused the injuries."[6] Instead, he claims a proven violation of section 27315, subdivision (d) cannot support a jury finding of the unlawful act or negligent act or negligent omission required by section 23153 and that his convictions therefore cannot stand because the prosecution presented its case on alternate theories, one of which was legally incorrect. Defendant's argument rests upon the premise that there must be "a causal link" between the violation of the law which is an additional concurrent negligent act or omission besides driving under the influence and "the accident which caused the injury" rather than simply a causal link between the negligent act or omission and the injury itself. Defendant reasons the legislative purpose in enacting section 23153 was "to punish more severely those drivers who were careless in the operation of their vehicles" and that the concurrent act or omission "must be related to the actual careless driving of the vehicle, like ... speeding, zig-zagging, and not yielding, etc." and "must proximately cause the accident." (Italics in original.) dui lawyer riverside 

(3) "[W]here the statute is `clear', `plain', and `unambiguous' on its face, so that taken by itself it is fairly susceptible of only one construction, that construction must be given to it and any inquiry into the purposes, background, or legislative history of the statute is foreclosed." (Farnsworth, An Introduction to the Legal System of the United States (1963) p. 72; see also 1A Sutherland, Statutory Construction (5th ed. 1993) pp. 855-856.) (1c) Here, we conclude the plain meaning of section 23153 does not support defendant's interpretation of the statute. Both subdivisions (a) and (b) of section 23153 clearly refer to an "act or neglect" which "proximately causes bodily injury to any person other than the driver." The statute is also clear that the only required link between the driving under the influence and the "act or neglect" is that the two occur "concurrently." (§ 23153, subds. (a) 860*860 and (b).) There is nothing in the language of the statute which suggests the "act or neglect" must also proximately cause the accident and relate "to the actual careless driving of the vehicle," as defendant contends. dui lawyer riverside 

However, even assuming arguendo the statutory language was ambiguous, we would construe the statute in conformity with what we find to be the plain meaning of the statute. dui lawyer riverside    http://www.duilawyerriversidecourt.com  

(4) In interpreting the language of section 23153, we are cognizant that "`[t]he fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. [Citations.] In order to determine this intent, we begin by examining the language of the statute. [Citations.] But "[i]t is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend." [Citations.] Thus, "[t]he intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act."'" (People v. Thomas (1992) 4 Cal.4th 206, 210 [14 Cal. Rptr.2d 174, 841 P.2d 159].) Furthermore, "we do not construe statutes in isolation, but rather read every statute `with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.' [Citation.]" (Ibid.) dui lawyer riverside 

(1d) The California Supreme Court has recognized that "[t]he drunk driver cuts a wide swath of death, pain, grief, and untold physical and emotional injury across the roads of California and the nation" (Burg v. Municipal Court (1983) 35 Cal.3d 257, 262 [198 Cal. Rptr. 145, 673 P.2d 732]), and it was "the causing of such injuries which the state [sought] to minimize" by enacting former section 501,[7] the precursor to the present section 23153, subdivision (a). (People v. Chatham (1941) 43 Cal. App.2d 298, 300 [110 P.2d 704]; see Stats. 1935, ch. 764, p. 2141.) We are convinced that one of the legislative purposes underlying subdivisions (a) and (b) of section 23153 is identical to that of the mandatory seat belt law, namely, "to reduc[e] highway deaths and injuries...." (§ 27315, subd. (a).) In People v. Coyle(1988) 204 Cal. App.3d Supp. 1, 4 [251 Cal. Rptr. 80], the court held that California's mandatory seat belt law serves the purpose of "saving lives and promoting the welfare of its citizens." The specific intent of the Legislature in enacting section 23153 was to punish more severely those drivers who commit a concurrent unlawful act or breach of duty in addition to driving under the influence. (People v. Capetillo (1990) 220 Cal. App.3d 211, 217 [269 Cal. Rptr. 250].) dui lawyer riverside   http://www.duilawyerriversidecourt.com   

861*861 We agree with the People that "[t]he common legislative objective of these statutes would be frustrated rather than advanced by interpreting section 23153's phrases `any act forbidden by law' and the neglect of `any duty imposed by law in driving the vehicle,' to exclude as a basis for the increased liability noncompliance with our mandatory seat belt law." dui lawyer riverside   http://www.duilawyerriversidecourt.com  

A variety of acts or omissions have been held to satisfy the unlawful act requirement of section 23153, including the failure to yield the right-of-way to a pedestrian (People v. Walker (1968) 266 Cal. App.2d 562, 568-569 [72 Cal. Rptr. 224]), violating the basic speed law (People v. Lares (1968) 261 Cal. App.2d 657 [68 Cal. Rptr. 144]), and recklessly driving by zigzagging from side to side (Peoplev. Dawes (1940) 37 Cal. App.2d 44, 49 [98 P.2d 787]). In each of these cases, the defendant's additional act or omission was an imprudent act of driving which was a proximate cause of both the accident and the injury which occurred. dui lawyer riverside   http://www.duilawyerriversidecourt.com  

However, in People v. Campbell (1958) 162 Cal. App.2d 776 [329 P.2d 82], the court reviewed a conviction under former section 501 and concluded that operating a car with defective brakes supported the conviction either as a violation of the Vehicle Code or as proof of negligence. In People v. Graybehl (1944) 67 Cal. App.2d 210 [153 P.2d 771], the court held that in a former section 501 prosecution the unlawful act requirement was satisfied by evidence that the defendant drove his car with its windshield so dirty "`... as to impair the driver's vision,'" which is a violation of the Vehicle Code (§ 677). (67 Cal. App.2d at pp. 216-218.) In each of these cases, the equipment violation in question directly impaired the driver's ability to drive the car in a manner so as to avoid an accident and proximately caused the injuries to a person other than the driver.

Our facts do not fit into either pattern described above because failure to ensure one's passengers are wearing safety belts can neither cause an accident nor can such neglect of duty directly impair the ability to drive a car in a manner so as to avoid an accident. However, failure to ensure that one's passengers are wearing safety belts is a neglect of duty while driving, which can proximately cause bodily injury to someone other than the driver operating his vehicle while under the influence. dui lawyer riverside   http://www.duilawyerriversidecourt.com  

In People v. Capetillo, supra, 220 Cal. App.3d 211, the court concluded the defendant's violation of unlawfully driving a vehicle without the owner's permission does not satisfy the requisite element of doing an unlawful act in the driving of the vehicle within the meaning of section 23153. (220 Cal. App.3d at p. 217.) It reasoned that "[t]he premise behind felony drunk driving is to penalize more severely those drivers who, in addition to driving 862*862 under the influence, are careless in operating or maintaining their vehicles" (id., at p. 217) and that "[i]f this court were to uphold the ruling below, we would be imposing a felony drunk driving conviction on Capetillo because he was driving somebody else's car without permission, rather than because `when so driving' Capetillo committed a crime or breached a duty of care." (Ibid.) The court's reasoning continued as follows: "Let us assume, for example, Capetillo, under the influence of drugs, was driving another's car without permission and that while legally stopped at an intersection he was plowed into by another driver going 90 miles per hour. If joyriding alone satisfied the unlawful act requirement, we would then be compelled to find the defendant guilty of felony drunk driving even though he had committed no violation when driving and had been struck because of the other driver's negligence." (Id.,at pp. 217-218.) dui lawyer riverside   http://www.duilawyerriversidecourt.com  

While we agree that the joyriding violation in Capetillo did not satisfy the unlawful act requirement, we reach this conclusion for reasons divergent from the reasoning set forth by the Capetillo court. We cannot conceive of a situation where the joyriding would proximately cause the bodily injury to someone other than the driver except under the theoretical but-for analysis first set forth in Wong Sun(Wong Sun v. United States (1963) 371 U.S. 471 [83 S.Ct. 407, 9 L.Ed.2d 441]); in other words, nothing about driving someone else's car increases the risk of injury to others apart from the fact that, otherwise, the defendant driver might not have been driving a car at all. Therefore, the joyriding violation, like a hit-and-run violation also discussed in Capetillo, did not proximately cause bodily injury to someone other than the individual driving under the influence. dui lawyer riverside   http://www.duilawyerriversidecourt.com  

In our opinion, it is the fact the defendant in Capetillo committed no violation when driving which proximately caused someone's injury that renders unwarranted an application of section 23153 to the facts in that case, but not the fact that the defendant driver could have "been struck because of the other driver's negligence." (220 Cal. App.3d at p. 218.) For example, let us assume the defendant in our case, while under the influence of alcohol, was driving his car having neglected to ensure that his backseat passenger was wearing his safety belt and that the defendant was plowed into by another driver while he was legally stopped at an intersection. If the defendant and his front passenger, who were wearing safety belts, were uninjured while the rear passenger was thrown to the roof of the car and injured because he was not belted, application of section 23153 would be warranted if the evidence established that defendant's neglect of his duty under the mandatory seat belt law was a proximate cause of the injury. We reach this conclusion because we believe section 23153 was enacted to punish a driver who, because he or she is under the influence, commits an additional unlawful act or breach of duty which risks, and actually causes, injury to someone other than the driver who is under the influence. dui lawyer riverside   http://www.duilawyerriversidecourt.com  

863*863 As noted above, we are convinced that section 23153 is designed to punish more severely those individuals who drive under the influence and concurrently commit an additional act forbidden by law or neglect a duty imposed by law which causes injury to someone other than the driver. Here, the evidence showed defendant was under the influence within the meaning of both subdivisions (a) and (b) of section 23153, his failure to ensure that all of his passengers were wearing safety belts was a neglect of duty which occurred concurrently with his driving under the influence, and that neglect of duty proximately caused the injury to defendant's backseat passenger. We are unpersuaded by defendant that we must narrow the types of unlawful acts or omissions which can satisfy the concurrent act  dui lawyer riverside   http://www.duilawyerriversidecourt.com  


dui lawyer riverside 

December 21, 1995. dui lawyer riverside 

148*148 COUNSEL dui lawyer riverside 

Matthew Alger, under appointment by the Supreme Court, for Defendant and Appellant. dui lawyer riverside 

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Michael J. Weinberger and Robert G. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION   dui lawyer riverside   http://www.duilawyerriversidecourt.com  

BAXTER, J. dui lawyer riverside   http://www.duilawyerriversidecourt.com  

In the companion to this case, People v. Baird (1995) 12 Cal.4th 126 [48 Cal. Rptr.2d 65, 906 P.2d 1220], we conclude that when a 149*149 prior felony conviction is used to establish the ex-felon element of a charge under section 12021 of the Penal Code[1] (ex-felon in possession of a firearm), the prison term resulting from that prior conviction may be used to enhance the defendant's sentence under section 667.5, subdivision (b) (section 667.5(b)) without contravening the reasoning in People v. Jones (1993) 5 Cal.4th 1142 [22 Cal. Rptr.2d 753, 857 P.2d 1163] (Jones) and other earlier decisions. dui lawyer riverside  dui lawyer riverside   http://www.duilawyerriversidecourt.com  

In this case, we confront related issues involving a section 667.5(b) enhancement and the use of a prior conviction to elevate a driving under the influence charge to a felony under section 23175 of the Vehicle Code. We hold here that the use of a prior conviction and resulting prison term for elevation and enhancement purposes is consistent with the legislative intent underlying Vehicle Code section 23175 and section 667.5(b), and that Jones, supra, 5 Cal.4th 1142, does not support a contrary result. We further conclude that a prior conviction and prior prison term may be utilized in this manner without violating section 654's prohibition against multiple punishment of an act or omission. dui lawyer riverside 

I. FACTUAL AND PROCEDURAL BACKGROUND dui lawyer riverside   http://www.duilawyerriversidecourt.com  

The pertinent facts are not in dispute. At a bench trial, defendant was found guilty of having driven a vehicle while under the influence of alcohol in violation of Vehicle Code section 23152, subdivision (a) (Vehicle Code section 23152(a)). Defendant then admitted he had suffered three prior driving under the influence convictions within the meaning of Vehicle Code section 23175. Defendant also admitted he had served three prior prison terms for felony convictions within the meaning of section 667.5(b).[2] One of the prior prison terms — for felony drunk driving in violation of Vehicle Code section 23152(a) — stemmed from the third prior conviction used to elevate the current offense to a felony under Vehicle Code section 23175. The superior court sentenced defendant to a total fixed prison term of six years. This consisted of the upper term of three years for the violation of Vehicle Code sections 23152(a) and 23175 and three 1-year enhancements under section 667.5(b) for the prior prison terms. dui lawyer riverside 

The Court of Appeal affirmed the judgment, finding that the enhancement is not prohibited under statutory or decisional law. We granted defendant's petition for review. dui lawyer riverside   http://www.duilawyerriversidecourt.com  

150*150 II. DISCUSSION dui lawyer riverside 
  http://www.duilawyerriversidecourt.com  
(1a) Defendant contends that one of his enhancements must be stricken because it was based upon a prior prison term that stemmed from one of the convictions used to elevate his current drunk driving charge to a felony under Vehicle Code section 23175. Defendant asserts that imposition of the prior prison term enhancement is contrary to the legislative intent underlying that statute and is improper under Jones, supra, 5 Cal.4th 1142. Defendant also argues that the enhancement is precluded by section 654's ban against multiple punishment. For the reasons that follow, we conclude otherwise.

A. Legislative Intent dui lawyer riverside   http://www.duilawyerriversidecourt.com  

As pertinent here, Vehicle Code section 23152(a) makes it unlawful for any person who is under the influence of alcohol to drive a vehicle. Ordinarily, violation of that provision is a misdemeanor offense.   dui lawyer (See generally, 2 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Crimes Against Public Peace and Welfare, § 917, p. 1040.) dui lawyer riverside   http://www.duilawyerriversidecourt.com  

Vehicle Code section 23175 provides that a conviction of a violation of Vehicle Code section 23152(a) may be punished as either a misdemeanor or a felony if "the offense occurred within seven years of three or more separate violations of [Vehicle Code] Section 23103, as specified in [Vehicle Code] Section 23103.5, or [Vehicle Code] Section 23152 or 23153,   http://www.duilawyerriversidecourt.com  or any combination thereof, which resulted in convictions...." Under Vehicle Code section 23175, punishment shall be "by imprisonment in state prison, or in the county jail for not less than 180 days nor more than one year, and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand [dollars] ($1,000)." (Veh. Code, § 23175, subd. (a).) In addition, the person's privilege to operate a motor vehicle shall be revoked. (Ibid.) dui lawyer riverside 

Defendant first argues that punishment based upon prior drunk driving convictions may not exceed a maximum of three years in state prison under Vehicle Code section 23175.[3] In defendant's view, Vehicle Code section 23175 bars the use of a prior prison term for enhancement purposes if the 151*151 underlying conviction is used to qualify the current offense for felony punishment. dui lawyer riverside 

To resolve whether defendant's interpretation of the relevant statutes is correct, we are guided by familiar canons of statutory construction. (2) "[I]n construing a statute, a court [must] ascertain the intent of the  http://www.duilawyerriversidecourt.com   Legislature so as to effectuate the purpose of the law." (People v. Jenkins (1995) 10 Cal.4th 234, 246 [40 Cal. Rptr.2d 903, 893 P.2d 1224].) In determining that intent, we first examine the words of the respective statutes: "If there is no ambiguity in the language of the statute, `then the Legislature is presumed to have meant what it said, and the plain meaning of the language governs.' [Citation.] `Where the statute is clear, courts will not "interpret away clear language in favor of an ambiguity that does not exist." [Citation.]'" (Lennane v. Franchise Tax Bd. (1994) 9 Cal.4th 263, 268 [36 Cal. Rptr.2d 563, 885 P.2d 976].) If, however, the terms of a statute provide no definitive answer,   http://www.duilawyerriversidecourt.com  then courts may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history. (See Granberry v. Islay Investments (1995) 9 Cal.4th 738, 744 [38 Cal. Rptr.2d 650, 889 P.2d 970].) "We must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences." (People v. Jenkins, supra, 10 Cal.4th at p. 246.) dui lawyer riverside 

(1b) As a preliminary matter, we observe defendant makes no contention that either Vehicle Code section 23152(a) or section 667.5(b) precludes the use of a prior prison term to enhance the sentence for a  http://www.duilawyerriversidecourt.com   drunk driving conviction where Vehicle Code section 23175 is not applicable. Nor could he. Vehicle Code section 23152(a) simply defines the misdemeanor offense of driving under the influence of alcohol or drugs; its terms do not in any way purport to prohibit the use of a prior prison term to enhance a sentence thereunder. At the same time, section 667.5 provides in explicit and mandatory  http://www.duilawyerriversidecourt.com   terms that "[e]nhancement of prison terms for new offenses because of prior prison terms shall be imposed as follows: [¶].... [¶] (b) ... [W]here the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony; provided that no additional term shall   http://www.duilawyerriversidecourt.com  be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction." (Italics added.) Plainly, this language is not susceptible to a construction providing an exception for new offenses elevated to felony status by virtue of a related prior conviction. dui lawyer riverside 

152*152 We now examine the terms of Vehicle Code section 23175. Prior to 1988, that section provided for a county jail term of one hundred eighty days to one year and a fine of $390 to $1,000 where the current Vehicle Code section 23152 offense occurred within seven years of three or more statutorily specified convictions. In 1988, Vehicle Code section 23175 was amended to add imprisonment in state prison as an alternative to imprisonment in county jail (Stats. 1988, ch. 599, § 1, p. 2160; Stats.  http://www.duilawyerriversidecourt.com   1988, ch. 1553, § 2, p. 5580), and was redesignated in 1990 as section 23175, subdivision (a) (Stats. 1990, ch. 44, § 6, p. 255).[4] (3) (See fn. 5.), (1c) Although Vehicle Code section 23175 provides a form of enhanced punishment for habitual drunk drivers,[5] it does not expressly state one way or the other whether a prior prison term enhancement may additionally apply when the prior conviction that resulted in the prison term is relied upon to elevate the current offense to a felony. Nor does the statute specify whether the imposition of felony punishment precludes the imposition of otherwise applicable punishments or enhancements. dui lawyer riverside 

Even though Vehicle Code section 23175 contains no language purporting to prohibit a prior prison term enhancement, defendant claims its history demonstrates a legislative intent to permit no more than three years of confinement in state prison in the event felony punishment is imposed. To buttress his position, defendant relies upon legislative documents that describe the subject legislation (1) as providing that a person previously convicted of three prior driving-under-the-influence offenses is "guilty of an alternate felony/misdemeanor, punishable by up to one year in the county jail or 16 months, two or three years in state prison" (Assem. Bill No. 3134 (1987-1988 Reg. Sess.) 3d reading analysis, May 9, 1988, italics added), and (2) as increasing "the maximum [penalty] to up  http://www.duilawyerriversidecourt.com   to three years in state prison" (Sen. Ways and Means Com., analysis of Sen. Bill. No. 2651 (1987-1988 153*153 Reg. Sess.) as amended May 27, 1988, italics added).[6] In defendant's view, these documents reflect a legislative purpose to make three years in state prison the maximum punishment for a fourth drunk driving conviction in seven years. dui lawyer riverside 

The legislative documents do not support the broad reading advanced by defendant. Even though the documents clearly describe the range of punishment available under Vehicle Code section 23175 when the current offense is elevated to a felony, they contain no indication that its purpose is to place a three-year cap on punishment for recidivist drunk drivers. Rather, the documents, fairly read, simply reflect a determination by the Legislature that "[a] fourth conviction for drunk driving   http://www.duilawyerriversidecourt.com  within a 7 year period clearly warrants a sentence to state prison" and that misdemeanor punishment is not appropriate in all cases. (E.g., Assem. Public Safety Com., Republican analysis of Sen. Bill No. 2651 (1987-1988 Reg. Sess.), supra.) The documents also make apparent that the purpose of Vehicle Code section 23175 is to "send a message that the state is serious about habitual drunk drivers." (Assem. Public Safety Com., Republican analysis of Sen. Bill No. 2651 (1987-1988 Reg. Sess.) supra.) dui lawyer riverside 

In our view, Vehicle Code section 23175's purpose to authorize felony punishment of habitual drunk drivers is fully compatible with section 667.5(b)'s purpose to provide for additional punishment of a   http://www.duilawyerriversidecourt.com  felon whose service of a prior prison term failed to deter future criminality. As it stands, Vehicle Code section 23175 treats both prior misdemeanor and felony habitual drunk drivers in the same manner — for both categories of offenders, the current offense may be elevated to a felony. But where one (or more) of the requisite prior convictions is a felony for which a prison term was served — reflecting a more serious crime and a more blameworthy offender — application of both statutes leads to the rational result that a more culpable habitual drunk driver receives greater punishment. dui lawyer riverside 

(4) Defendant next argues that Vehicle Code section 23175 is a "special statute" which controls over section 667.5(b), a "general statute." (In re Shull (1944) 23 Cal.2d 745, 750 [146 P.2d 417].) We are not   http://www.duilawyerriversidecourt.com  persuaded. dui lawyer riverside 

The "special over the general" rule, which generally applies where two substantive offenses compete, has also been applied in the context of enhancement statutes. (See In re Shull, supra, 23 Cal.2d at p. 750 [when use of a deadly weapon is an integral part of the offense, the additional penalties 154*154 prescribed by predecessor to § 12022 may not be imposed].) The rule does not apply, however, unless "each element of the `general' statute corresponds to an element on the face of the `specific' [sic] statute" or "it appears from the entire context that a violation of the `special' statute will necessarily or commonly result in a violation of the `general' statute." (See People v. Jenkins (1980) 28 Cal.3d 494, 502 [170 Cal. Rptr. 1, 620 P.2d 587]; see also People v. Watson (1981) 30 Cal.3d 290, 295-296 [179 Cal. Rptr. 43, 637 P.2d 279].) dui lawyer riverside 

Do the elements of section 667.5(b) correspond to the elements of Vehicle Code section 23175? Clearly not. Among other things, punishment may be imposed under section 667.5(b) only where the defendant has been previously convicted of a felony and has served a prison term therefor. In contrast, felony punishment is permissible under Vehicle Code section 23175 even where the defendant has never been convicted of a felony and has never served a term in state prison.[7] In addition, Vehicle  http://www.duilawyerriversidecourt.com   Code section 23175 limits its application to prior convictions involving certain specified drunk driving offenses, while section 667.5(b) applies generally to any felony conviction that resulted in a prison term. dui lawyer riverside 

Would a conviction resulting in the application of the felony punishment provisions of Vehicle Code section 23175 "necessarily or commonly" result in the application of the enhancement provisions of section 667.5(b)? Again, the answer is no. Even though both statutes provide for punishment where prior convictions are involved, misdemeanor convictions may often serve to trigger felony punishment under Vehicle Code section 23175 but, by definition, could never trigger application of section 667.5(b). (See, e.g., Veh. Code, §§ 23152, 23103 [as specified in Veh. Code, § 23103.5].) Moreover, even though a felony drunk driving conviction (e.g., Veh. Code, § 23153) may also elevate a current offense to a felony under Vehicle Code section 23175, it is not necessarily or commonly the case that the qualifying felony conviction will have resulted in a state prison term. For example, a trial court may, in granting probation,  http://www.duilawyerriversidecourt.com   suspend execution of a sentence for a first or second felony conviction under Vehicle Code section 23153. (Veh. Code, §§ 23181 [initial conviction under Veh. Code, § 23153], 23186 [second 155*155 conviction under Veh. Code, § 23153]; see also Veh. Code, § 23176 [probation for person punished under Veh. Code, § 23175].) Accordingly, a conviction resulting in the application of Vehicle Code section 23175's felony punishment provisions would not necessarily or commonly result in the imposition of a section 667.5(b) enhancement. The "special over general" rule has no application here. dui lawyer riverside 

(1d) In sum, section 667.5(b) provides in clear and mandatory terms that a one-year enhancement for a new offense "shall be imposed" "where the new offense is any felony for which a prison sentence is imposed." Because Vehicle Code section 23175 reflects no legislative purpose to disallow additional punishment where a qualifying prior conviction resulted in a prison term, we conclude that "the construction that comports most closely with the apparent intent of the Legislature" is one that gives effect to section 667.5(b) in such cases. (People v. Jenkins, supra, 10 Cal.4th at p. 246.) dui lawyer riverside 

B. The Jones Decision dui lawyer riverside 

Defendant argues, based on Jones, supra, 5 Cal.4th 1142,  http://www.duilawyerriversidecourt.com   that the limitation on the multiple use of enhancements contained in section 667 is applicable to the section 667.5(b) enhancement in this case. This argument must be rejected. dui lawyer riverside 

Defendant fails to identify anything in the relevant statutory language or history that might support his position. Jones simply determined that when multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, only the greater enhancement may apply. (5 Cal.4th at p. 1150.) Contrary to defendant's assertions, nothing in Jones suggests that section 667's limitation on cumulative enhancements may apply where, as here, no enhancement under section 667 has been imposed. dui lawyer riverside 

Additionally, defendant appears to rely upon Jones to argue there is no meaningful distinction between a prior conviction and a prior prison term under Vehicle Code section 23175 and section 667.5(b). Jones recognized, in effect, that prior prison term enhancements under section 667.5(b) are a "subset" of prior conviction enhancements under section 667:  http://www.duilawyerriversidecourt.com   "If a prior felony is `violent' enough to qualify for an enhancement under section 667.5, it will a fortiori be noxious enough to qualify as `serious' under subdivision (a) of section 667, and will almost always have resulted in a prison term. The result is that five-year enhancements will become eight-year enhancements in all but a very few cases." (Jones, supra, 5 Cal.4th at p. 156*156 1150.) After observing that the defendant in that case had received a one-year enhancement under section 667.5(b), as opposed to the three-year enhancement under section 667.5, subdivision (a), Jones concluded: "Just as it would be anomalous for the law to impose an eight-year enhancement when the voters specified five, so also would it be for the law to impose a six-year enhancement when the voters specified five." (5 Cal.4th at p. 1150, fn. omitted.) To avoid that result, Jones construed section 667 to bar the cumulative imposition of both enhancements. dui lawyer riverside 

This reasoning does not aid defendant in the instant case. Unlike the situation in Jones, it cannot be concluded here that all or nearly all convictions that result in prison terms under section 667.5(b) will qualify to elevate a fourth drunk driving conviction to a felony under Vehicle Code section 23175. Likewise, it cannot be said that all or nearly all of the  http://www.duilawyerriversidecourt.com   statutorily enumerated convictions that may be used to elevate a drunk driving conviction to a felony under Vehicle Code section 23175 will have resulted in a prior prison term within the meaning of section 667.5(b). The "subset" analysis in Jones has no application here. dui lawyer riverside 

C. Section 654 dui lawyer riverside 

(5) Section 654 provides in its entirety: "An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, 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  http://www.duilawyerriversidecourt.com   any other." dui lawyer riverside 

By its own terms, section 654 applies only to an "act or omission" made punishable in different ways by different statutes. The issue here is whether the increased punishment authorized by Vehicle   http://www.duilawyerriversidecourt.com  Code section 23175 and the sentence enhancement provided by section 667.5(b) punish defendant twice for an act or omission within the meaning of section 654. If so, then defendant is correct that the one-year enhancement should be stricken. dui lawyer riverside 

Initially, we observe there are at least two types of sentence   http://www.duilawyerriversidecourt.com  enhancements: (1) those which go to the nature of the offender; and (2) those which go to the nature of the offense. (See People v. Tassell (1984) 36 Cal.3d 77, 90 [201 Cal. Rptr. 567, 679 P.2d 1], overruled on other grounds, People v. Ewoldt (1994) 7 Cal.4th 380, 398-401 [27 Cal. Rptr.2d 646, 867 P.2d 757].) Prior prison term enhancements, such as those authorized by section 667.5(b), fall into the first category and are attributable to the defendant's status as a repeat offender. (See People v. McClanahan (1992) 3 Cal.4th 860, 869 [12 Cal. Rptr.2d 719, 838 P.2d 241]; In re Foss (1974) 10 Cal.3d 910, 922 [112 Cal. Rptr. 649, 519 P.2d 1073], disapproved on other grounds, People v. White (1976) 16 Cal.3d 791, 796-797, fn. 3 [129 Cal. Rptr. 769, 157*157 549 P.2d 537].) The second category of enhancements, which are exemplified by those authorized under sections 12022.5 and 12022.7,[8] arise from the circumstances of the crime and typically focus on what the defendant did when the current offense was committed. (See People v. Tassell, supra, 36 Cal.3d at p. 90.)
 dui lawyer riverside 
We recently recognized that the appellate courts have disagreed on whether section 654 applies to enhancements. (Jones, supra, 5 Cal.4th at p. 1152; compare, e.g., People v. Price (1992) 4 Cal. App.4th 1272 [6 Cal. Rptr.2d 263], People v. Rodriguez (1988) 206 Cal. App.3d 517 [253 Cal. Rptr. 633] (Rodriguez), and People v. Boerner (1981) 120 Cal.   http://www.duilawyerriversidecourt.com  App.3d 506 [174 Cal. Rptr. 629] with People v. Hopkins (1985) 167 Cal. App.3d 110 [212 Cal. Rptr. 888], People v. Carter (1983) 144 Cal. App.3d 534 [193 Cal. Rptr. 193], and People v. Moringlane (1982) 127 Cal. App.3d 811 [179 Cal. Rptr. 726].) For purposes of this case, we need only decide whether section 654 bars the prior prison term enhancement imposed here.
 dui lawyer riverside 
In a closely analogous context, Rodriguez, supra, 206 Cal. App.3d 517, held that a single prior robbery conviction and resulting prison term could be used both to upgrade a subsequent petit theft from a misdemeanor to a felony under section 666 and to enhance the sentence therefor under section 667.5(b). In rejecting the argument that section 654 precludes such a result, Rodriguez reasoned that prior prison term enhancements are not imposed for "acts or omissions" within the meaning of the statute: "Section 654 applies to an `act or omission,' i.e., criminal conduct or neglect. Both sections 666 and 667.5 apply to facts, not acts; they relate to the status of the recidivist offender engaging in criminal conduct, not to the conduct itself." (Rodriguez, supra, 206 Cal. App.3d at p. 519, italics added; see also People v. Price, supra, 4 Cal. App.4th at p. 1277 [§ 654 is inapplicable to enhancements under § 666 and § 667, subd. (a)].)
 dui lawyer riverside 
Rodriguez further reasoned: "To hold that section 654 applies to enhancements to forbid the dual use of any fact [such as a prior conviction or prison term] as well as to forbid multiple punishment for any act would render provisions of Penal Code section 1170, subdivision (b) superfluous and negate an amendment thereto. Section 1170, subdivision (b)  http://www.duilawyerriversidecourt.com   presently provides in pertinent part that `[t]he court may not impose the upper term by using the fact of any enhancement upon which sentence is imposed under 158*158 section 667.5 ... or under any other section of law.' If section 654 prohibited all dual uses of facts, this section ... would be superfluous. [¶] When section 1170, subdivision (b) was enacted in 1976, it also provided: `In no event shall any fact be used twice to determine, aggravate, or enhance a sentence.' Immediately prior to the effective date of this legislation, this provision of 1170, subdivision (b) was deleted. [¶] This provision would have prohibited the sentences here as the same conviction and prison term is used to `determine' the sentence  http://www.duilawyerriversidecourt.com   as a felony and to enhance the sentence. It would be anomalous to apply this rule enacted in 1976 and repealed in 1977 before becoming effective under the guise of interpretation of section 654 which has been in existence since 1872." (Rodriguez, supra, 206 Cal. App.3d at pp. 519-520, fn. omitted.) dui lawyer riverside 

We find the reasoning of Rodriguez persuasive. As explained above, prior prison term enhancements are attributable to the defendant's status as a repeat offender (People v. McClanahan, supra, 3 Cal.4th at p. 869;   http://www.duilawyerriversidecourt.com  In re Foss, supra, 10 Cal.3d at p. 922); they are not attributable to the underlying criminal conduct which gave rise to the defendant's prior and current convictions. Because the repeat offender (recidivist) enhancement imposed here does not implicate multiple punishment of an act or omission, section 654 is inapplicable. dui lawyer riverside 

Defendant argues that People v. Hopkins, supra, 167 Cal. App.3d 110, People v. Carter, supra, 144 Cal. App.3d 534, and People v. Moringlane, supra, 127 Cal. App.3d 811, support application of section 654 under the circumstances of this case. We disagree. dui lawyer riverside 

Significantly, two of the cases applied section 654 to section 667.5(b) and other repeat offender enhancement statutes only after concluding that the "acts" made punishable by those enhancements are those prior offenses committed by the defendant which resulted in the prior convictions or prison terms. (People v. Hopkins, supra, 167 Cal. App.3d at p. 118;[9] People v. Carter, supra, 144 Cal. App.3d at p. 542.) That notion, however, has long been discredited. (People v. Biggs (1937) 9 Cal.2d 508, 512 [71 P.2d 214, 116 A.L.R 205] [repeat offender enhancements are not attributable to the underlying criminal conduct which gave rise to the defendant's prior conviction and prison term]; People v. Dutton (1937) 9 Cal.2d 505, 507 [71 P.2d 218] [same]; see also People v. McClanahan, supra, 3 Cal.4th at p. 869 159*159 [prior felony conviction or prison term enhancements are based on the offender's status as a previously convicted felon]; In re Foss, supra, 10 Cal.3d at p. 922 [increased penalties for subsequent offenses are attributable to the defendant's status as a repeat offender].) Because their applications of section 654 were premised on the erroneous assumption that a recidivist enhancement relates to the defendant's conduct underlying a prior conviction, People v. Hopkins, supra, and People v. Carter, supra, are to that extent flawed and hereby disapproved. dui lawyer riverside 

People v. Moringlane, supra, 127 Cal. App.3d 811, likewise is unhelpful. In that case, the defendant had been convicted of, among other things, (1) assault with intent to murder William McDowell, (2) assault with intent to murder Javior Silva, and (3) assault with intent to murder Michael Rico. At sentencing, the trial court imposed three enhancements — one on each of those three counts — for the infliction of great bodily injury upon the same person, William McDowell. The Court of Appeal struck two of the three enhancements (from the Silva and Rico counts) pursuant to section 654, even though it noted that statutory language did not literally prohibit imposition of the three sentence enhancements. Relying upon settled case law, the court concluded that the statute "prohibits the imposition of multiple enhancements for the single act of inflicting great bodily injury upon one person." (127 Cal. App.3d at p. 817.) dui lawyer riverside 

People v. Moringlane, supra, 127 Cal. App.3d 811, does not support defendant's position. In the first place, that case did not concern a recidivist type of enhancement. Even if it is assumed that an enhancement for the infliction of great bodily injury during the commission of an offense is properly viewed as punishing a defendant for an "act" within the meaning of section 654, such enhancements are plainly distinguishable from those attributable to a defendant's status as a repeat offender. (See People v. Tassell, supra, 36 Cal.3d at p. 90.) Moreover, unlike the apparent situation in People v. Moringlane, supra, the same statutory enhancement was not imposed more than once in this case. dui lawyer riverside 

Consistent with the reasoning of Rodriguez, supra, 206 Cal. App.3d 517, we hold that a single prior conviction and resulting prison term may be used both to elevate a violation of Vehicle Code section 23152 to a felony under Vehicle Code section 23175 and to enhance the sentence therefor under section 667.5(b) without violating section 654's bar against multiple punishment of an act or omission.[10] dui lawyer riverside 

160*160 III. DISPOSITION dui lawyer riverside 

The judgment of the Court of Appeal is affirmed. dui lawyer riverside 

Lucas, C.J., Arabian, J., George, J., and Werdegar, J., concurred. dui lawyer riverside 

KENNARD, J., Concurring. dui lawyer riverside 

May a single prior felony conviction for driving under the influence (Veh. Code, § 23152, subd. (a); hereafter DUI) be used both to elevate a new DUI offense from a misdemeanor to a felony and to support a prior prison term enhancement (that is, the imposition of an additional and consecutive prison term when the person committing a felony has previously served a term in state prison)? The majority holds that it may. I agree.

In my dissent in the companion case of People v. Baird (1995) 12 Cal.4th 126, 136 [48 Cal. Rptr.2d 65, 906 P.2d 1220] I explain that there is a general rule of statutory construction, based on a reasonable inference of legislative intent, that a single fact may not be used both to prove a crime and to increase the punishment for that crime. And I explain there that this inference of legislative intent is strongest when the fact that is an element of the offense will, in every instance, also satisfy the requirements for the increased punishment. The inference becomes weaker, and the rule ceases to apply, if the fact that is an element of the offense does not frequently or typically also satisfy the requirements for the increased punishment. dui lawyer riverside 

Here, the majority persuades me that persons convicted of DUI do not frequently or typically serve prison terms for this offense. (Maj. opn., ante, at pp. 154-155.) Therefore, I agree that we should not infer a legislative intent to preclude use of a single prior DUI conviction both to elevate a new DUI offense from a misdemeanor to a felony and to support a prior prison term enhancement. dui lawyer riverside 

I also agree, for the reasons stated by the majority, that using a single prior DUI conviction for these two distinct purposes does not violate the multiple punishment proscription of Penal Code section 654. dui lawyer riverside 

Accordingly, I concur in the judgment. dui lawyer riverside 

161*161 MOSK, J. dui lawyer riverside 

I dissent. The majority's result amounts to a form of triple jeopardy. dui lawyer riverside 

Unquestionably, driving a motor vehicle while voluntarily under the influence of intoxicants is a serious offense. It carries great potential for harm to the offender and others. "[T]here is no doubt that the effects of drunk driving are cruel indeed." (Gikas v. Zolin (1993) 6 Cal.4th 841, 860 [25 Cal. Rptr.2d 500, 863 P.2d 745] (dis. opn. of Mosk, J.), italics deleted.) Hence, within the bounds prescribed by law, such a crime deserves severe punishment. dui lawyer riverside 

However, the Legislature cannot have intended the punishment conferred on defendant as a result of his present and prior misconduct. dui lawyer riverside 

Defendant admitted that in 1990 he violated Vehicle Code section 23152, subdivision (a), and served a prison term therefor. It was at the time his third violation of section 23152. The court also found him guilty of violating section 23152, subdivision (a), in the proceeding before us. dui lawyer riverside 

In sentencing defendant, the court invoked his 1990 offense, along with his two other prior convictions under Vehicle Code section 23152, to convict him of a felony for driving under the influence of alcohol on the present occasion. (Id., § 23175, subd. (a).) He received a three-year prison sentence. In other words, he was again punished under law for his prior conduct. dui lawyer riverside 

Then the court invoked the service of a prison term for the same 1990 offense to enhance defendant's sentence by an additional year. (Pen. Code, § 667.5, subd. (b) [providing under certain conditions that an individual sentenced to prison for "any felony" who served a prior prison term for "any felony" shall receive a one-year enhancement of the sentence imposed].) The sentence was also enhanced because he served two other prior terms for felony offenses. (Ibid.) dui lawyer riverside 

The result is that, for a drunk-driving conviction resulting in no injury, defendant received a six-year prison sentence. Although the majority are able to parse various statutes in affirming the sentence, ultimately their reasoning is "`hypertechnical'" and "`"supertechnical"'" (People v. Jones (1993) 5 Cal.4th 1142, 1148 [22 Cal. Rptr.2d 753, 857 P.2d 1163] [explaining a prior opinion's characterization of "the distinction between prior prison terms and prior felonies for enhancement purposes"]). They cannot escape the core fact that by the time of his release defendant will have been punished three times for his 1990 offense: when he was convicted thereof, when it was used to elevate the current offense to a felony, and when the prison term he received for it was used to enhance his sentence yet again. dui lawyer riverside 

162*162 At bottom, the question we must decide is the Legislature's intent in determining punishment under the extremely complicated sentencing schemes it has created. "A statute must be construed `in the context of the entire statutory system of which it is a part, in order to achieve harmony among the parts.'" (People v. Woodhead (1987) 43 Cal.3d 1002, 1009 [239 Cal. Rptr. 656, 741 P.2d 154].) So it is with Penal Code section 667.5, subdivision (b). No matter how elegantly the majority may explain how the various statutes in question mesh, I submit that they miss the essential point. Specifically, I doubt that the Legislature intended to sentence anyone to six years' imprisonment for a drunk-driving offense in which no injury resulted. This outcome is particularly dubious given that, if defendant's prior prison term were not invoked in deciding his punishment, he would still receive five years' imprisonment. dui lawyer riverside 

I believe that the Legislature intended to give a person in defendant's position five years' imprisonment. Therefore I dissent. dui lawyer riverside 

Appellant's petition for a rehearing was denied February 22, 1996. Mosk, J., was of the opinion that the petition should be granted. dui lawyer riverside 

[1] Unless otherwise indicated, all further statutory references are to the Penal Code. dui lawyer riverside 
[2] The information alleged that defendant previously had been convicted and had served prison terms for the felony offenses of: (1) voluntary manslaughter (§ 192.1 [sic]); (2) robbery (§ 211); and (3) felony drunk driving (Veh. Code, §§ 23152(a), 23175). dui lawyer riverside 

[3] Because Vehicle Code section 23175 does not prescribe otherwise, a felony conviction thereunder "is punishable by imprisonment in any of the state prisons for 16 months, or two or three years." (§ 18.) dui lawyer riverside 

Although defendant claims that one of the prison term enhancements should be stricken, he makes no argument that the trial court erred in imposing the upper felony term of three years. The record reflects the trial court found as circumstances in aggravation the fact that defendant was on parole at the time of the offense and the fact that his prior performance on parole or probation was not satisfactory. (See Cal. Rules of Court, rule 421(b)(4) & (5).) dui lawyer riverside 

[4] The 1990 legislation also added subdivision (b) to Vehicle Code section 23175, providing that any person convicted of a violation of Vehicle Code section 23152 punishable under section 23175 shall be designated as an habitual traffic offender for three years subsequent to conviction. (Stats. 1990, ch. 44, § 6, p. 255.) dui lawyer riverside 

[5] The prior conviction provisions of Vehicle Code section 23175 do not define a substantive offense, but rather result in increased punishment for a current conviction under Vehicle Code section 23152. For this reason, Vehicle Code section 23175 has been described as a sentence-enhancing statute and not a substantive offense statute. (People v. Weathington (1991) 231 Cal. App.3d 69, 87-90 [282 Cal. Rptr. 170], analogizing to People v. Bouzas (1991) 53 Cal.3d 467, 479 [279 Cal. Rptr. 847, 807 P.2d 1076] [holding that § 666, which allows a petty theft to be charged as a felony if it is demonstrated that the defendant suffered a prior theft-related conviction, is a sentence-enhancing statute and not a substantive offense statute].) This conclusion is consistent with the view expressed in certain legislative documents that described the subject legislation as "a solid sentence enhancement measure." (E.g., Assem. Public Safety Com., Republican analysis of Sen. Bill No. 2651 (1987-1988 Reg. Sess.) dated June 24, 1988.) dui lawyer riverside 

[6] Both Senate Bill No. 2651 and Assembly Bill No. 3134 (both 1978-1988 Reg. Sess.) were enacted so as to allow for imprisonment in the state prison under Vehicle Code section 23175. (Stats. 1988, ch. 599, § 1, p. 2160; Stats. 1988, ch. 1553, § 2, p. 5580.) dui lawyer riverside 

[7] Under Vehicle Code section 23175, subdivision (a), the three prior convictions must be based upon violations of Vehicle Code section 23152, Vehicle Code section 23153 (causing bodily injury to others while driving under the influence), and/or Vehicle Code section 23103 (reckless driving), as specified in Vehicle Code section 23103.5 (acceptance of guilty or nolo contendere plea to violation of Veh. Code, § 23103 in place of charge for violation of Veh. Code, § 23152). dui lawyer riverside 

As indicated previously, a charge under Vehicle Code section 23152 is ordinarily a misdemeanor. A charge under Vehicle Code section 23103 is likewise a misdemeanor, while a charge under Vehicle Code section 23153 is punishable as either a misdemeanor or a felony. dui lawyer riverside 

[8] Among other things, section 12022.5 authorizes a sentence enhancement for any person who personally uses a firearm in the commission or attempted commission of a felony. (§ 12022.5, subd. (a).) Section 12022.7 authorizes an enhancement for, inter alia, any person who, with the intent to inflict injury, personally inflicts great bodily injury on any person other than an accomplice in the commission or attempted commission of a felony. (§ 12022.7, subd. (a).) dui lawyer riverside 

[9] People v. Hopkins held, relying upon section 654, that the same prior convictions could not be used to cumulatively enhance the defendant's sentence under sections 667 and 667.5. (167 Cal. App.3d at pp. 117-118.) Jones, supra, 5 Cal.4th 1142, reached the same result based upon the statutory intent underlying section 667. In so doing, Jones declined to decide whether section 654 applies to enhancements. (5 Cal.4th at p. 1152.)

[10] Defendant seems to additionally argue that the "dual use" of his prior conviction to elevate his current offense to a felony and to enhance his sentence is prohibited. As we have previously recognized, however, "[o]nly two express `dual use' prohibitions appear in the Determinate Sentencing Act. Section 1170, subdivision (b), prohibits imposition of an upper term based upon `the fact of any enhancement upon which sentence is imposed [under section 667.5]....' California Rules of Court, rule 425(b), states that a fact that is an element of the crime, or that is used to impose an upper term or otherwise enhance a defendant's prison sentence, may not be used also to justify imposition of a consecutive rather than a concurrent sentence." (People v. Jenkins, supra, 10 Cal.4th at p. 252, fn. 10.) The facts of the present case do not fit within the parameters of those two dual-use prohibitions. dui lawyer riverside 

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People v. Hua, 70 Cal. Rptr. 3d 559 - Cal: Court of Appeal, 1st Appellate Dist., 5th Div. 2008ReadHow citedSearch dui lawyer riverside 
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People v. Hua, 70 Cal. Rptr. 3d 559 - Cal: Court of Appeal, 1st Appellate Dist., 5th Div. 2008
70 Cal.Rptr.3d 559 (2008) dui lawyer riverside 
158 Cal.App.4th 1027 dui lawyer riverside 

The PEOPLE, Plaintiff and Respondent, dui lawyer riverside 
v.
John HUA, Defendant and Appellant. dui lawyer riverside 

No. A116578. dui lawyer riverside 

Court of Appeal of California, First District, Division Five. dui lawyer riverside 

January 11, 2008.
 dui lawyer riverside 
560*560 Gordon S. Brownell, under appointment by the Court of Appeal, St. Helena, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Martin S. Kaye and Ronald E. Niver, Deputy Attorneys General for Plaintiff and Respondent.

SIMONS, J. dui lawyer riverside 

Two Pacifica police officers observed several individuals smoking marijuana in an apartment rented by appellant John Hua. The officers entered, without either a warrant or consent, and eventually discovered growing marijuana plants and a cane sword. Appellant was originally charged with cultivation of marijuana (Health & Saf.Code, § 11358) (count 1), possession for sale of marijuana (Health & Saf.Code, § 11359) (count 2), and felony possession of a cane sword (Pen.Code, § 12020, subd. (a)) (count 3). dui lawyer riverside 

In the trial court, appellant challenged the police entry and the subsequent search of his apartment in a motion to suppress the evidence seized by the police. (Pen. Code, § 1538.5.) The trial court denied the motion, concluding the entry was justified by exigent circumstances. Appellant then entered a plea of nolo contendere to cultivation of marijuana (Health & Saf.Code, § 11358) and misdemeanor possession of a cane sword (Pen.Code, § 12020, subd. (a).) On appeal, appellant challenges the denial of his motion to suppress (Pen.Code, § 1538.5, subd. (m)). We reject the People's contention that exigent circumstances justified the warrantless entry of appellant's home. Under Welsh v. Wisconsin (1984) 466 U.S. 740, 753-754, 104 S.Ct. 2091, 80 L.Ed.2d 732 (Welsh), a finding of exigent circumstances is categorically precluded when the only crime the police are aware of when they enter a residence to arrest the occupant and/or seize contraband is possession of no more than 28.5 grams of marijuana. dui lawyer riverside 

BACKGROUND[1] dui lawyer riverside 

At 11:08 p.m. on March 27, 2005, uniformed Pacifica Police Officer Patrick Mostasisia (Mostasisia) and Pacifica Police Corporal Darci Mix (Mix) received a dispatch report regarding a "noise disturbance" at an apartment building on Talbot Avenue in apartment No. 308 (the apartment). As the officers approached the apartment, they noticed the "distinct odor" of burnt marijuana coming from it. Mostasisia knocked on the apartment door and awaited a response. dui lawyer riverside 

From her vantage point, standing; in a common area in front of the window next to the front door of the apartment, Mix looked through the open vertical blinds and saw several people socializing in the living room area. Mix saw one person put an object to his lips and smoke from it. Based on her training and experience, Mix testified this conduct was consistent with someone smoking marijuana. dui lawyer riverside 

After Mostasisia knocked repeatedly for about 45 seconds, appellant, who resided in the apartment, answered the door. Mostasisia and Mix stood right outside the front door on a walkway common to all apartments on that floor. When Mostasisia advised appellant that they were responding to a noise disturbance call, appellant said he had been using a drill earlier that evening. When Mostasisia asked appellant about the marijuana odor, appellant denied he was smoking marijuana, implying there might be others who were smoking marijuana in the apartment. 561*561 When Mix told appellant she saw someone smoking what appeared to be marijuana, appellant denied it. Because of the amount of smoke evident inside the apartment, the officers told appellant they were concerned about the destruction of evidence and asked for consent to enter. Appellant did not want the officers to enter. Appellant responded "no" when Mix asked if he had a medical marijuana card. When the officers again asked appellant for his permission to enter, he stepped aside and allowed them in. On cross-examination, Mostasisia conceded that he made it clear to appellant that the officers wanted to enter the apartment and that in his report he stated, "[Appellant] succumbed to our request and stepped aside."

As the officers entered the apartment, Mostasisia first noticed the smell of marijuana and a cloud of smoke in the living room. Aside from appellant, five other persons were inside the living room area. Mostasisia observed two "blunts," or "smoked-out" marijuana cigarettes on the living room coffee table. For safety purposes, Mostasisia asked if any other persons were inside the apartment and a couple of people said "no." When Mix asked if anyone had a medical marijuana card, several persons said they did not. No one claimed ownership of the blunts. dui lawyer riverside 

Mostasisia asked if there were any weapons or animals[2] in the apartment and someone said "no." Thereafter, all of the persons in the living room consented to a search of their persons, and the search turned up no contraband. Mix then performed a 30 to 45 second protective sweep of the apartment for officer safety, to ensure no animals or other individuals were present. Mix testified that conducting such a protective sweep was "standard practice for [her]." During the protective sweep 46 marijuana plants growing in plastic dirt-filled tubs were found in plain view inside appellant's bedroom.[3] No drawers or closets were opened during the protective sweep. dui lawyer riverside 

Appellant was detained and handcuffed, but advised he was not under arrest. He said there was a letter which allowed him to cultivate or possess marijuana. Mostasisa believed that appellant was giving the officers permission to find the letter, so Mix retrieved it from an open safe. A very large quantity of empty plastic baggies was also found in or around the safe. The letter did not give appellant permission to possess or grow marijuana, but instead named someone not present at the apartment. Aside from the plants, the police observed, in plain view, a bag of potting soil in the hallway, three bottles of liquid plant food in the living room, and a small digital scale. Inside the bathroom, a "Cannabis Grow Bible" and plastic planter trays were found. A cane sword was found on the top bookshelf in the living room. Each of these items was seized. Sometime after Mix conducted her protective sweep of the apartment, other officers arrived and took control of the scene. dui lawyer riverside  dui lawyer riverside 

Thereafter, appellant was given Miranda admonitions (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) and agreed to be interviewed at the police station. Appellant said he grew marijuana as a hobby to use it as wallpaper. However, there were no marijuana leaves or plants embedded in the walls of the apartment. Appellant also said he did smoke marijuana with his 562*562 friends but denied selling it. Appellant was:not arrested on the evening the officers entered his apartment. dui lawyer riverside 

In moving, to suppress, appellant argued that the officers' warrantless entry and search of his entire apartment was nonconsensual and unjustified by exigent circumstances. The People opposed the suppression motion on the grounds that the plain view exception to the warrant requirement justified the officers' actions, the officers' warrantless entry was justified by their concern regarding the imminent destruction of drug evidence and the officers' concern for their safety justified" the protective sweep of the apartment. The magistrate denied appellant's motion to suppress all evidence seized after finding persuasive the prosecution's argument and authorities. dui lawyer riverside 

Thereafter, appellant renewed the motion to suppress in the trial court on the ground that there were no exigent circumstances justifying the officers' warrantless search of his apartment. (Pen.Code, § 1538.5, subd. (i).) The People opposed the motion, arguing that the officers had probable cause to believe that an offense was being committed inside the apartment and entered out of concern that evidence would be destroyed. The court denied the renewed suppression motion after concluding there were exigent circumstances.

DISCUSSION dui lawyer riverside 

I. Standard of Review dui lawyer riverside 

Where, as here, a motion to suppress is submitted to the superior court on the preliminary hearing transcript, "the appellate court disregards the findings of the superior court and reviews the determination of the magistrate who ruled on the motion to suppress, drawing all presumptions in favor of the factual determinations of the magistrate, upholding the magistrate's express or implied findings if they are supported by substantial evidence, and measuring the facts as found by the trier against the constitutional standard of reasonableness." (People v. Thompson (1990) 221 Cal.App.3d 923,' 940, 270 Cal.Rptr. 863.) "We exercise our independent judgment in determining whether, on the facts presented, the search or seizure was reasonable under the Fourth Amendment. [Citation.]" (People v. Lenart (2004) 32 Cal.4th 1107, 1119, 12 Cal.Rptr.3d 592, 88 P.3d 498.) We affirm the trial court's ruling if correct under any legal theory. (People v. Zapien (1993) 4 Cal.4th 929, 976, 17 Cal.Rptr.2d 122, 846 P.2d 704.) dui lawyer riverside 

II. The Officers' Warrantless Entry Was Not Justified by Exigent Circumstances dui lawyer riverside 

"It is axiomatic that the `physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.' [Citation.] And a principal protection against unnecessary intrusions into private dwellings is the warrant requirement imposed by the Fourth Amendment on agents of the government who seek to enter the home for purposes of search or arrest. [Citation.] It is not surprising, therefore, that the [United States Supreme] Court has recognized, as `a "basic principle of Fourth Amendment law[,]" that searches and seizures inside a home without a warrant are presumptively unreasonable.' [Citations.]" (Welsh, supra, 466 U.S. at pp. 748-749, 104 S.Ct. 2091, fn. omitted.) dui lawyer riverside 

"Yet, as with so much of its Fourth Amendment jurisprudence, the high court has stopped short of erecting a categorical bar. The presumption of unreasonableness that attaches to a warrantless entry into the home `can be overcome by a showing of one of the few "specifically established 563*563 and well-delineated exceptions" to the warrant requirement [citation], such as "`hot pursuit of a fleeing felon, or imminent destruction of evidence, ... or the need to prevent a suspect's escape, or the risk of danger to the police or to other persons inside or outside the dwelling'" [citation]. The United States Supreme Court has indicated that entry into a home based on exigent circumstances requires probable cause to believe that the entry is justified by one of these factors such as the imminent destruction of evidence or the need to prevent a suspect's escape.' [Citation.]" (People v. Thompson (2006) 38 Cal.4th 811, 817-818, 43 Cal.Rptr.3d 750,135 P.3d 3 (Thompson).) dui lawyer riverside 

"An exigent circumstance is needed for a warrantless entry into one's home regardless of the strength of the probable cause to arrest [citation] or the existence of a statute authorizing the arrest. [Citations.]" (People v. Ortiz (1995) 32 Cal. App.4th 286, 291, 38 Cal.Rptr.2d 59.) dui lawyer riverside 

For good reason, appellant does not contest the existence of probable cause to believe a crime was being committed by those inside the apartment. Responding to a noise complaint, the police detected the odor of burning marijuana and observed what appeared to be one or more individuals smoking marijuana. These observations were confirmed by appellant's equivocal answer to an officer's question regarding the marijuana odor. dui lawyer riverside 

Appellant focuses his challenge to the warrantless entry on Welsh's requirement that an entry into a home to preserve evidence from imminent destruction is limited to evidence of crimes that are not minor. (Welsh, supra, 466 U.S. at p. 750, 104 S.Ct. 2091.) Appellant argues the entry was illegal because the offense known to the officers at the time of entry, the simple possession of marijuana (Health & Saf.Code, § 11357, subd. (b)),[4] is a nonjailable offense and, therefore, cannot justify an entry to prevent the imminent destruction of evidence. In Welsh, officers went to the defendant's home after developing probable cause to believe he had recently driven a car under the influence of alcohol. The officers entered the home without a warrant to arrest the defendant, in part, because they feared the imminent destruction of evidence that would result from the dissipation of the alcohol in his blood. (Welsh, at pp. 753-754, 104 S.Ct. 2091.) Welsh reasoned that "an important factor to be considered when determining whether any exigency exists [to justify a warrantless entry] is the gravity of the underlying offense for which the arrest is being made." (Id at p. 753, 104 S.Ct. 2091.) Welsh was arrested for his first driving under the influence (DUI) offense, and, in Wisconsin, such offenses were classified as noncriminal, civil forfeiture offenses for which no imprisonment could be imposed. On that basis, the Supreme Court determined the warrantless entry was unreasonable. (Id at p. 754, 104 S.Ct. 2091.) dui lawyer riverside 

Illinois v. McArthur (2001) 531 U.S. 326, 121 S.Ct. 946, 148 L.Ed.2d 838 (McArthur) delineated the scope of exigency in circumstances closely related to our own. In McArthur, the police suspected that marijuana had been hidden in a trailer where McArthur was living. The police contacted McArthur outside the trailer and sought permission to search the trailer, 564*564 which McArthur denied. While one officer went to get a search warrant, McArthur was barred from reentering the trailer without a police officer accompanying him. About two hours later, an officer returned with the warrant and found a small amount of marijuana in the trailer. (Id. at p. 329, 121 S.Ct, 946.) McArthur relied on Welsh to argue that misdemeanor possession of marijuana, punishable in Illinois by up to 30 days in jail, was too minor an offense to justify the warrantless restraint he had suffered. (McArthur, at pp. 335-336, 121 S.Ct. 946.) The high court disagreed, concluding that "`"the penalty that may attach to any particular offense seems to provide the clearest and most consistent indication of the State's interest in arresting individuals suspected of committing that offense"' [citations] and finding `significant distinctions' between `crimes that were "jailable," not "nonjailable."' [Citation.]" (Thompson, supra, 38 Cal.4th at p. 822, 43 Cal.Rptr.3d 750,135 P.3d 3.) dui lawyer riverside 

Finally, in Thompson, our Supreme Court distinguished Welsh and relied on McArthur to uphold a warrantless entry into a home to effect a suspect's arrest for DUI because, unlike Wisconsin, California classifies a first DUI offense as a criminal act, punishable by a jail term. (Thompson, supra, 38 Cal.4th at p. 821, 43 Cal. Rptr.3d 750, 135 P.3d 3.) Thompson also reasoned that, in California, DUI "is not an `extremely minor' offense" and limited Welsh to Wisconsin's decision to classify DUI as a civil nonjailable offense. (Thompson, at p. 821, 43 Cal.Rptr.3d 750, 135 P.3d 3.)

Possession of less than 28.5 grams of marijuana is a misdemeanor punishable by a fine of no more than $100, which is less than the punishment imposed by Wisconsin in Welsh. Relying on the line clearly drawn between jailable and nonjailable offenses in McArthur and Thompson, we conclude that the crime observed by the Pacifica police officers cannot support a warrantless entry, based on exigent circumstances. dui lawyer riverside 

This conclusion is confirmed by certain policy factors considered during the enactment of Senate Bill No. 95, which amended Health and Safety Code section 11357, subdivision (b), to reduce the penalties for simple possession of marijuana. For example, in its analysis, the State Office of Narcotics and Drug Abuse recited as reasons for the amendment: (1) "[U]se of a substance with a comparatively low health and social hazard such as marijuana does not warrant jail or imprisonment;" and (2) "The [personnel] and dollar costs of enforcing present marijuana laws could be better spent for other, more beneficial social purpose." (State Off. of Narcotics and Drug Abuse, Enrolled Bill Rep. on Sen. Bill No. 95 (1975-1976 Reg. Sess.) July 1, 1975, p. 3.) dui lawyer riverside 

The minor nature of this crime is also revealed in its treatment of repeat offenders. If a person who possesses less than 28.5 grams of marijuana "has been previously convicted three or more times of an offense described in this subdivision during the two-year period immediately preceding the date of commission of the violation to be charged" the person must be placed in a drug diversion program pursuant to Penal Code sections 1000.1 and 1000.2. (Health & Saf.Code, § 11357, subd. (b).) And, if not accepted into a diversion program, the person shall be subject to the $100 fine. (Ibid.) In addition, a person arrested for a violation of this subdivision is to be cited and released "and shall not be subject to booking." (Ibid.) This mandatory citation-only procedure appears to be unique among misdemeanor offenses. Finally, the preservation of the records of arrest and conviction for this offense is limited. Health and Safety Code section 565*565 11361.5, subdivision (a), expressly provides that records "pertaining to the arrest or conviction of any person for a violation of subdivision (b), (c), (d), or (e) of Section 11357 ... shall not be kept beyond two years from the date of the conviction...." dui lawyer riverside 

The People do not challenge this legal analysis. Instead, they argue that at the time of entry, the two officers had probable cause to believe that two crimes more serious than a violation of Health and Safety Code section 11357, subdivision (b), were being committed. "[T]he officers had reason to believe that appellant possessed [more than 28.5 grams of marijuana], which exposed him to a possible sentence of a year in jail. (Health & Safe Code, § 11357, subd. (a).)" While we accept the reasonable possibility that there was more marijuana in the apartment than the two blunts observed by the officers, it is mere conjecture to conclude that there was enough to constitute a jailable offense. dui lawyer riverside 

The People also argue, "the act of furnishing marijuana to others is a felony punishable by imprisonment for as many as four years. (Health & Saf.Code, § 11360, subd. (a).)" But this argument ignores Health & Safety Code section 11360, subdivision (b), which provides that "Except as authorized by law, every person who gives away ... not more than 28.5 grams of marijuana ... is guilty of a misdemeanor and shall be punished by a fine of not more than" $100.[5] Thus, even had the officers observed one individual in the apartment furnish another with marijuana, the officers did not have probable cause to believe that a jailable offense was being committed at the time they entered. dui lawyer riverside 
 dui lawyer riverside 
We recognize that in Welsh and Thompson the officers entered a residence to obtain evidence of a crime that had occurred in the past, outside of the officers' presence. Here, the Pacifica police officers observed the commission of a crime that was ongoing at the time they entered the apartment. At least one court has concluded that Penal Code section 836 authorizes a warrantless entry to effect an arrest in such circumstances. (People v. Robinson (1986) 185 Cal.App.3d 528, 531, 229 Cal.Rptr. 851.) Section 836, subdivision (a), provides that a peace officer may arrest a person without a warrant whenever "(1) The officer has reasonable cause to believe that the person to be arrested has committed a public offense in the officer's presence." We join several other courts in expressly rejecting the Robinson analysis. "A statute does not trump the Constitution. Under the Fourth Amendment, `"To be arrested in the home., is simply too substantial an invasion to allow without a warrant, at least in the absence of exigent circumstances, even when it is accomplished under statutory authority...."' [Citations.]" (People v. Ortiz, supra, 32 Cal.App.4th at p. 292, fn. 2, 38 Cal.Rptr.2d 59.) Conway v. Pasadena Humane Society (1996) 45 Cal.App.4th 163, 176, 52 Cal. Rptr.2d 777, and People v. Hull (1995) 34 Cal.App.4th 1448, 1453, 41 Cal.Rptr.2d 99, have adopted the reasoning of Ortiz, as do we. dui lawyer riverside 

California has chosen to treat the offense of possession of less than 28.5 grams of marijuana as a minor offense that is nonjailable even for repeat offenders. Under Welsh, McArthur and Thompson, one consequence of that decision is to preclude officers who see this offense being committed from entering a home without a warrant or consent to seize the offender or the contraband, in order to prevent the imminent destruction of evidence of the offense. dui lawyer riverside 

566*566 Because the Pacifica police officers' entry into the apartment was unjustified, appellant's motion to suppress the evidence seized was erroneously denied. dui lawyer riverside 

DISPOSITION dui lawyer riverside 

The judgment is reversed. dui lawyer riverside 

We concur. JONES, P.J., and GEMELLO, J. dui lawyer riverside 

[1] The background facts are derived from the preliminary hearing transcript. dui lawyer riverside 

[2] Mostasisia said his question regarding animals mainly concerned the possible presence of "guard dogs, pit bulls, Rottweilers." dui lawyer riverside 

[3] Expert testimony was later presented that the marijuana found in appellant's apartment was being cultivated and was possessed for both personal use and sale. dui lawyer riverside 

[4] Pursuant to Health and Safety Code section 11357, subdivision (b), a person who possesses not more than 28.5 grams of marijuana, other than concentrated cannabis, is guilty of a" misdemeanor, punishable by a fine of not more than $100. Pursuant to subdivision (c) of that section, possession of more than 28.5 grams of marijuana, other than concentrated cannabis, is punishable by not more than six months in jail or a fine up to $500, or both. dui lawyer riverside 

[5] This provision also contains a mandatory citation requirement, like the one contained in Health and Safety Code section 11357, subdivision (b).

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People v. Forrester, 67 Cal. Rptr. 3d 740 - Cal: Court of Appeal, 2nd Appellate Dist. 2007ReadHow citedSearch dui lawyer riverside 
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People v. Forrester, 67 Cal. Rptr. 3d 740 - Cal: Court of Appeal, 2nd Appellate Dist. 2007 dui lawyer riverside 
67 Cal.Rptr.3d 740 (2007)
156 Cal.App.4th 1021 dui lawyer riverside 

The PEOPLE, Plaintiff and Respondent, dui lawyer riverside 
v.
Jason Michael FORRESTER, Defendant and Appellant. dui lawyer riverside 

No. B198662. dui lawyer riverside 

Court of Appeal of California, Second District. dui lawyer riverside 

November 8, 2007. dui lawyer riverside 

741*741 Law Offices of Tony Marlow, Anthony J. Marlow, Paso Robles, and Midori Hill Feldman, for Defendant and Appellant. dui lawyer riverside 

Gerald T. Shea, District Attorney, Kathleen Philpot Secrest, Deputy District Attorney, County of San Luis Obispo, for Plaintiff and Respondent.

GILBERT, P.J. dui lawyer riverside 

In People v. Sweet (1989) 207 Cal.App.3d 78, 254 Cal.Rptr. 567 (Sweet), defendant pled guilty to driving under the influence of alcohol (DUI). At the time of his plea, a defendant convicted of a subsequent DUI offense within five years receives increased punishment. After Sweet's plea, the Legislature amended the statute to extend the five years to seven years. Sweet reoffended more than five but less than seven years later. In Sweet, we held that the statute may constitutionally be applied to prior DUI convictions entered when five years was the maximum period in which prior convictions could be used for increased sentence. (Id. at p. 83, 254 Cal. Rptr. 567.) dui lawyer riverside 

Jason Michael Forrester is in a similar predicament. The statute was again amended to extend the seven years to ten years. (Veh.Code, §§ 23540 & 23546.)[1] Faced with the seemingly insuperable Sweet precedent, Forrester asks us to reexamine our holding in light of Stogner v. California (2003) 539 U.S. 607, 123 S.Ct. 2446, 156 L.Ed.2d 544. We have, and conclude nothing has changed. Forrester's enhanced sentence does not violate ex post facto or due process principles. We affirm the judgment. dui lawyer riverside 

Factual and Procedural Backgroundv dui lawyer riverside 

Forrester suffered two DUI convictions, one in 1997 and another in 2001. In 1997, sections 23540 and 23546 provided that DUI-related convictions increase punishment for subsequent DUI convictions occurring within seven years. Effective January 742*742 1, 2005, the California Legislature amended these statutes to extend the period to 10 years.[2] dui lawyer riverside 

In March 2006, Forrester was again charged with DUI offenses. (§§ 23152, subd. (a) & 23152, subd. (b).) The People alleged his two prior convictions to enhance his sentence. dui lawyer riverside 

Forrester moved to strike his prior 1997 conviction. He argues, as did defendant Sweet, that to enhance his sentence with this prior conviction violates the ex post facto clause. The trial court denied the motion and Forrester pled no contest to a violation of section 23152, subdivision (b), and admitted the two prior convictions. He was sentenced to confinement in county jail. The trial court stayed execution of his sentence pending appeal and granted him a certificate of probable cause. dui lawyer riverside 

The Appellate Division of the Superior Court affirmed. It concluded that use of the 1997 prior conviction to enhance Forrester's sentence does not violate ex post facto principles. We granted Forrester's request to transfer the case here for resolution of the constitutional issues.

Ex Post Facto Clause and Due Process dui lawyer riverside 

Forrester acknowledges our analysis in Sweet aid other precedent. Ex post facto laws (1) criminalize formerly innocent actions after their commission; (2) aggravate a crime after its commission; (3) increase the punishment associated with the crime after its commission; or (4) alter the legal rules of evidence required to convict the offender. (Miller v. Florida (1987) 482 U.S. 423, 429, 107 S.Ct. 2446, 96 L.Ed.2d 351; Sweet, supra, 207 Cal.App.3d at p. 82, 254 Cal.Rptr. 567.) "Statutes enacting punishment for a defendant convicted of violating section 23152 with prior convictions do not have the effect of being ex post facto laws. [Citations.] It is the law in effect at the time of commission of the offense which controls. [Citations.]" (Sweet, at p. 82, 254 Cal.Rptr. 567.) dui lawyer riverside 

In 2006, when Forrester committed the current DUI offense, the law provided that an individual with prior section 23103.5 convictions within the last 10 years would be subject to enhanced punishment if convicted of violating section 23152, subdivision (a). (23540, 23546, 23550.) "There is no constitutional bar preventing application of the statute to later offenses solely because the prior conviction which serves as a basis for enhancement was committed before the habitual offender statute was enacted." (Sweet, supra, 207 Cal.App.3d at p. 83, 254 Cal.Rptr. 567.) The crime Forrester is punished for is not the prior conviction, but the subsequent offense of which the prior conviction constitutes only one element. [Citation.] (Ibid.) dui lawyer riverside 

Courts have routinely rejected ex post facto challenges to statutes that increase penalties for recidivism. Courts reason that the sentence imposed upon a habitual offender is not an additional punishment for the earlier crime, but a punishment for the later crime, which is aggravated because of its repetitive nature. (See, e.g., Gryger v. Burke (1948) 334 U.S. 728, 732, 68 S.Ct. 1256, 92 L.Ed. 1683; People v. Snook (1997) 16 Cal.4th 1210, 1221, 69 Cal.Rptr.2d 615, 947 P.2d 808; People v. 743*743 Eribarne (2004) 124 Cal.App.4th 1463, 1469, 22 Cal.Rptr.3d 417 [three strikes law]; People v. Wohl (1991) 226 Cal. App.3d 270, 273, 276 Cal.Rptr. 35 [rejecting ex post facto contention where DUI conviction is elevated to felony on fourth conviction].). Additionally, it is well established that even expungement of a conviction will not eliminate all consequences associated with that conviction. (People v. Jacob (1985) 174 Cal.App.3d 1166, 1173, 220 Cal.Rptr. 520.) dui lawyer riverside 

Forrester argues that Sweet is no longer good law because Stogner v. California, supra, 539 U.S. 607, 123 S.Ct. 2446, 156 L.Ed.2d 544, compels a different result. In Stogner, the State of California attempted to revive the statute of limitations for the crime of child molestation after the original statute of limitations had expired. The United States Supreme Court held that California was barred from doing so because the new statute of limitations attached criminal liability "`... where the party was not, by law, liable to any punishment.'" (Id. at p. 613, 123 S.Ct. 2446.) dui lawyer riverside 

The Appellate Division correctly noted the difference between reviving a prosecution in its entirety after the statute of limitations has run, and enhancing the sentence in a new criminal prosecution stemming from new criminal conduct. Here Forrester's prosecution stems from a law that became effective more than one year before the date of his arrest, and one that apprised him of the possible consequences of a new violation. Unlike Stogner, Forrester has not been charged with a crime for which the statute of limitations has run. He has not been deprived of a vested defense because the statute extending the maximum period of prior offenses was enacted before the current offense. (See Sweet, supra, 207 Cal.App.3d at pp. 82, 86, 254 Cal.Rptr. 567.) dui lawyer riverside 

Violation of Forrester's 1997 Plea Agreement and Estoppel dui lawyer riverside 

Forrester next contends that the plea agreement he signed in 1997 is a contract in which the district attorney promised he would receive an enhanced sentence only for DUI offenses committed within seven years. He relies on language in the plea form stating that the court and counsel advised him of the elements of the offense, the possible defenses, and the direct consequences of his plea, including the minimum and maximum sentences listed on a chart appearing on the second page of the plea form. A chart lists the penalties for DUI convictions effective January 1, 1994, depending upon the number of prior DUI offenses committed within the previous seven years. The chart simply provides information concerning the relevant law at that time. No language in the plea agreement, nor any evidence supports the contention that Forrester relied on the information in the chart in entering his plea. Nor would such reliance have been reasonable. dui lawyer riverside 

For these reasons, there is no merit to Forrester's contention the state is estopped from using his 1997 conviction. (See Hair v. State of California (1991) 2 Cal.App.4th 321, 328-329, 2 Cal.Rptr.2d 871.) dui lawyer riverside 

The judgment is affirmed. dui lawyer riverside 

We concur: YEGAN, and COFFEE, JJ. dui lawyer riverside 
 dui lawyer riverside 
[1] All statutory references are to the Vehicle Code. dui lawyer riverside 

[2] Section 23540 currently provides in part: "If a person is convicted of a violation of Section 23152 and the offense occurred within 10 years of a separate violation of Section 23103, as specified in Section 23103.5, 23152, or 23153, that resulted in a conviction, that person shall be punished by imprisonment in the county jail for not less than 90 days nor more than one year and by a fine of not less than ($390) nor more than ($1000)." Section 23546 provides for additional punishment if a person has two prior qualifying convictions (e.g., "wet reckless" driving convictions).

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 dui lawyer riverside 

People v. McCarnes, 179 Cal. App. 3d 525 - Cal: Court of Appeal, 4th Appellate Dist., 2nd Div. 1986ReadHow citedSearch dui lawyer riverside 
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People v. McCarnes, 179 Cal. App. 3d 525 - Cal: Court of Appeal, 4th Appellate Dist., 2nd Div. 1986 dui lawyer riverside 
179 Cal.App.3d 525 (1986)
224 Cal. Rptr. 846

THE PEOPLE, Plaintiff and Respondent, dui lawyer riverside 
v.
CHARLES FRANCIS McCARNES III, Defendant and Appellant. dui lawyer riverside 

Docket No. E001605.

Court of Appeals of California, Fourth District, Division Two. dui lawyer riverside 

March 31, 1986. dui lawyer riverside 

527*527 COUNSEL dui lawyer riverside 

Robert E. Dowd and Rex W. Kellough for Defendant and Appellant. dui lawyer riverside 
 dui lawyer riverside 
John K. Van de Kamp, Attorney General, Peter Quon, Jr., and Raquel M. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION dui lawyer riverside 

TAYLOR, J.[*] dui lawyer riverside 

A jury convicted Charles Francis McCarnes III (defendant) of two counts of second degree murder (Pen. Code, §§ 187, 189); two counts of vehicular manslaughter (then Pen. Code, § 192, subd. 3(a), now Pen. Code, § 192, subd. (c)(1)); one count of driving under the influence of alcohol and drugs so as to cause bodily injury to another (Veh. Code, § 23153, subd. (a)); one count of driving with 0.10 percent or more of alcohol in the blood so as to cause bodily injury to another (Veh. Code, § 23153, subd. (b)); and one count of failing to give the proper information or render the proper assistance at the scene of the accident (Veh. Code, § 20001). In addition, defendant admitted four previous convictions for driving under the influence of alcohol or alcohol and drugs, and pled guilty to one count of driving with knowledge that his driving privileges had been suspended or revoked for driving under the influence of alcohol or drugs (Veh. Code, § 14601.2, subd. (a)). Defendant was sentenced to state prison for a determinate term of four years and eight months and a consecutive indeterminate term of fifteen years to life. This appeal followed. dui lawyer riverside 

FACTS dui lawyer riverside 

About 2 p.m. on a summer Saturday afternoon, defendant was driving his Chevrolet west on Allesandro Boulevard just west of its intersection with 528*528 Moreno Beach Boulevard, east of Riverside. His blood alcohol level was about .27 percent.[1] He tried to pass a Datsun station wagon at a speed of "65-plus."[2] During the passing maneuver, defendant drove into the eastbound lane of Allesandro (a two-lane highway) and collided head-on with a VW station wagon. There were six people in the VW: Frank Ferreira and his wife Jacqueline; their baby daughter Jennifer, who was almost two; their niece Lisa; their teenage nephew Patrick, and Frank's fifteen-year-old sister Elizabeth. dui lawyer riverside 

After the collision, defendant walked over to the vicinity of the VW. A bystander was giving artificial respiration to the baby, who, according to a witness, was missing "a big chunk of her head." Defendant leaned over, said "`Don't die, baby, don't die,'" and walked away. A deputy sheriff arrived on the scene and was told that defendant had left the scene. The sheriff drove after defendant. When the sheriff approached him, defendant ran into a field. The sheriff ran after him and overtook him. Defendant told the sheriff that he had tried "to do CPR on the baby." dui lawyer riverside 

A CHP officer administered a field sobriety test to defendant within an hour of the collision. The officer testified at trial that in his opinion defendant was "extremely intoxicated." The criminalist (see fn. 1, ante) testified that a person had to be a "pretty experienced drinker" to reach a level of .27 percent, and that many persons would become unconscious with a blood alcohol level of less than .30 percent. dui lawyer riverside 

As a result of injuries received in the collision, Frank Ferreira and his baby daughter died; Frank's wife Jacqueline had four broken ribs; their nephew Patrick had two broken arms, a broken femur and a broken pelvic bone; their niece Lisa had torn ligaments in her knee, and Frank's sister Elizabeth had a broken nose and front teeth knocked out. dui lawyer riverside 

SYNOPSIS OF PROCEEDINGS IN THE TRIAL COURT dui lawyer riverside 

Defendant was charged by information with: two counts of murder; two counts of vehicular manslaughter; one count of driving under the influence of alcohol and drugs so as to cause bodily injury to another; one count of driving with 0.10 percent or more of alcohol in the blood so as to cause bodily injury to another; having previously been convicted of driving under the influence of alcohol or alcohol and drugs (then Veh. Code, § 23102, 529*529 now Veh. Code, § 23152) in 1975, 1979, 1980, 1981 and 1982; having previously been convicted of reckless driving (Veh. Code, § 23103) in 1978; one count of failing to give information or assistance at the scene of the accident, and one count of driving with suspended or revoked driving privileges. dui lawyer riverside 

Defendant pleaded not guilty to the charges, and denied the previous convictions. He then filed a motion, pursuant to Penal Code section 995, to set aside the murder counts on the grounds, incredibly, that the preliminary hearing evidence as to his driving before the collision (see infra) and his blood alcohol level were insufficient to support a finding of implied malice. After a hearing, the motion was denied. dui lawyer riverside 

At the outset of trial, the People made a motion, pursuant to Evidence Code section 402, to admit defendant's earlier convictions for driving under the influence and for reckless driving, supra, for the purpose of proving the element of implied malice in the murder counts. After extensive argument (48 pages in the reporter's transcript) the motion was granted. Shortly afterwards, the court limited its ruling to the 1979, 1980, 1981 and 1982 convictions, and refused to admit the 1975 and 1978 convictions. Thereupon the People dismissed the charges as to those two convictions.

After the court denied his motion to bifurcate the trial on the previous convictions, defendant withdrew his denial of the four remaining convictions, and admitted the truth thereof. dui lawyer riverside 

Defendant also withdrew his plea of not guilty to the driving with a suspended or revoked license charge, and pleaded guilty thereto. The prosecutor then made a motion to introduce that conviction on the implied malice issue. The court denied the motion, on the grounds that such evidence would be more prejudicial than probative. dui lawyer riverside 

At the end of the People's case the prosecutor read the jury a stipulation as to the four previous convictions, and the court admonished the jury that it could consider the convictions only on the issue of implied malice in the murder counts. Defendant then made a motion, pursuant to Penal Code section 1118.1, for a judgment of acquittal on the murder counts. The motion was denied. dui lawyer riverside 

After the conviction, defendant substituted two retained attorneys for the public defender. The new attorneys, who are also representing defendant on appeal, filed a motion for a new trial on the grounds that the trial court had erred in admitting the previous convictions, and, because the jury had returned verdicts convicting defendant of both murder and manslaughter, 530*530 that he could be convicted only of manslaughter. After a lengthy hearing, the motion for a new trial was denied. dui lawyer riverside 

DISCUSSION dui lawyer riverside 

On appeal, defendant contends: (1) the trial court prejudicially erred in admitting evidence of four of defendant's previous convictions for driving under the influence; (2) there was insufficient evidence to support the verdicts on the murder counts; and (3) the jury verdicts on the murder and the manslaughter counts preclude defendant from being convicted of murder. dui lawyer riverside 

I

THE ADMISSION OF DEFENDANT'S PREVIOUS CONVICTIONS FOR DRIVING UNDER THE INFLUENCE dui lawyer riverside 

(1) As noted, the trial court allowed the People to present evidence of defendant's 1979, 1980, 1981 and 1982 convictions for driving under the influence, and instructed the jury that it could consider the convictions only on the issue of implied malice in the murder counts. On implied malice the jury was instructed as follows: dui lawyer riverside 

"Malice is implied when the killing results from an intentional act involving a high degree of probability that it will result in death, which act is done for a base, antisocial purpose and with a wanton disregard for human life or when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life." (CALJIC No. 8.11 (1983 rev.), italics added.) dui lawyer riverside 

In deciding to admit the previous convictions, the trial court relied on the second concept of implied malice, supra (hereinafter the "dangerous to life" concept), and reasoned that evidence of the convictions "would be highly probative that the defendant ... did possess the knowledge that his conduct would endanger the lives of others as well as ... that he consciously and deliberately disregarded such knowledge and did so with a conscious disregard for the lives of other[s]." On the section 352 issue, the court stated, although the evidence was highly prejudicial, that it was "so substantial" on the issues of knowledge and conscious disregard, that its probative value outweighed the danger of undue prejudice. We agree. dui lawyer riverside 

Without citing any relevant authority, defendant contends that the court erred in relying on the "dangerous to life" concept of implied malice to 531*531 admit the previous convictions, and in including that concept in the jury instruction, supra. Defendant argues that the "high probability that it will result in death" concept is the "proper" definition of implied malice, and the "dangerous to life" concept is not. We do not agree. dui lawyer riverside 

The alternative definition of implied malice in the 1983 revision of CALJIC No. 8.11 is based on the following language in People v. Watson (1981) 30 Cal.3d 290 [179 Cal. Rptr. 43, 637 P.2d 279]: "We have said that second degree murder based on implied malice has been committed when a person does `"`an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life'"....' (People v. Sedeno, supra, 10 Cal.3d at p. 719 [112 Cal. Rptr. 1, 518 P.2d 913], quoting from People v. Phillips, supra, 64 Cal.2d 574, 587 [51 Cal. Rptr. 225, 414 P.2d 353].) Phrased in a different way, malice may be implied when defendant does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life. (People v. Washington (1965) 62 Cal.2d 777, 782 [44 Cal. Rptr. 442, 402 P.2d 130].)" (Id., at p. 300, italics added.) dui lawyer riverside 

In an effort to retain the "high probability [of] death" language, defendant's attorney argued at length to the trial court that the two concepts of implied malice which were stated disjunctively in Watson and in CALJIC No. 8.11 should be stated conjunctively in the jury instruction. The trial court rejected that argument, and used the alternative language of 8.11. On appeal defendant goes one step further, and argues, not that the two concepts should be used conjunctively, but that the "dangerous to life" concept should not be used at all (this, despite the fact, as pointed out by the prosecutor to the trial court, that the "dangerous to life" concept is the first [and therefore impliedly the preferred] concept stated in Watson).

Although defendant concedes that our Supreme Court "equated" the two concepts in Watson, he argues that the concepts are not equivalent, and that an act whose "natural consequences ... are dangerous to life" is not as risky as one which has a "high probability that it will result in death." In support of his argument, defendant cites post-Watson cases in which implied malice was defined only in terms of the "high probability [of] death" concept. However, because only one concept was used in those cases does not necessarily mean either it was the only concept which was proper, or it was the more rigorous concept. Moreover, in the cases of People v. Sedeno (1974) 10 Cal.3d 703 [112 Cal. Rptr. 1, 518 P.2d 913], People v. Phillips (1966) 64 Cal.2d 574 [51 Cal. Rptr. 225], and People v. Eagles (1982) 133 532*532 Cal. App.3d 330 [183 Cal. Rptr. 784], implied malice was defined only in terms of the "dangerous to life" concept, suggesting that either of the two concepts is proper, and that they are but "different way[s]" (Watson) of saying the same thing. dui lawyer riverside 

Defendant also contends that his previous convictions for driving under the influence were not probative on the knowledge element of implied malice, because the convictions showed only that he knew such driving was unlawful, but not that he knew it was dangerous. However, the reason that driving under the influence is unlawful is because it is dangerous, and to ignore that basic proposition, particularly in the context of an offense for which the punishment for repeat offenders is more severe (Veh. Code, §§ 23165, 23170, 23175), is to make a mockery of the legal system as well as the deaths of thousands each year who are innocent victims of drunken drivers. dui lawyer riverside 

Moreover, included in the evidence of two of defendant's convictions, as shown to the jury, was the sentence that he enroll in and complete a drinking driver's education program. Even if we assume defendant did not realize after his convictions that it was dangerous to drink alcohol and drive, surely realization would have eventually arrived from his repeated exposure to the driver's educational program. To argue otherwise is little short of outrageous. dui lawyer riverside 

Finally, defendant's reliance on People v. Esparza (Cal. App.) and People v. Dellinger (1984) 163 Cal. App.3d 284 [209 Cal. Rptr. 503] is misplaced. Our Supreme Court has ordered that Esparza not be published in the Official Reports, and Dellinger is distinguishable, in that the defendant denied committing the act (furnishing cocaine to the victim) to which the previous crime evidence (defendant's prior use of cocaine) was applied. "Generally, knowledge, intent, or state of mind evidence is admissible if there is no doubt that defendant has committed the act, but there is some question as to his or her mental state at the time." (Dellinger, supra, at p. 298, italics added.) In Dellinger, whether or not the defendant furnished the cocaine was in doubt; in the case here, whether or not defendant drove the Chevrolet was not. dui lawyer riverside 

(2) Defendant also contends that evidence of the prior convictions should not have been admitted because to do so was substantially more prejudicial than probative. (Evid. Code, § 352.) We do not agree. This issue was argued at length in the trial court, and, as noted, the court concluded that the evidence was "so substantial" on the issues of knowledge and conscious disregard, that its probative value outweighed the danger of undue prejudice. In the light of our foregoing analysis, we conclude that the admission 533*533 of the evidence was not and could not even remotely be considered an abuse of discretion. dui lawyer riverside 

II

SUBSTANTIAL EVIDENCE OF MALICE dui lawyer riverside 

(3) Defendant contends that the evidence of his driving before the collision was insufficient to support a finding of malice. This contention is not supported by the record. Viewed in a light most favorable to the People, the evidence was as follows: defendant was driving with a blood alcohol level of .27 percent, almost three times the percentage necessary to support a finding that he was legally intoxicated. Moments before the collision on Allesandro, defendant passed a pickup truck on Moreno Beach Boulevard (a 2-lane road with a speed limit of 45 miles per hour) at a speed of close to 70, and continued to drive a substantial distance in the opposite lane before pulling over. He then tried to pass a van and a boat, and pulled out so far to his left that he went into the dirt shoulder on the opposite side of the road. From the shoulder he cut across sharply in front of the van and the boat, just before the stop sign at the intersection of Moreno Beach Boulevard and Allesandro Boulevard. He turned west on Allesandro, which has a speed limit of 55 miles per hour (no one saw whether or not he stopped at the stop sign), and shortly afterwards tried to pass a Datsun station wagon at a speed of over 65 miles per hour, at a time when the VW station wagon he collided with could be clearly seen approaching in the opposite direction. The collision occurred a few feet beyond the Datsun station wagon. dui lawyer riverside 

In sum, defendant is arguing, as a matter of law, that there is no substantial evidence that driving by a person who has a blood alcohol level of .27 percent, and who executes two extremely reckless passing maneuvers and embarks on a third in the face of an oncoming vehicle, has "natural consequences ... which are dangerous to life," or "a high probability [of] result[ing] in death." (People v. Watson, supra, 30 Cal.3d 290, 300.) This is nonsense, if not an affront to this court. The foregoing evidence, coupled with the defendant's four previous convictions for driving under the influence, is not only sufficient but overwhelmingly upholds the finding of implied malice. Were it not for the reluctance expressed in Watson (at p. 301) we would be inclined to hold this evidence sufficient to prove implied malice as a matter of law. dui lawyer riverside 

On the dangerousness of the act of driving while intoxicated, the California Supreme Court observed in Burg v. Municipal Court (1983) 35 Cal.3d 257 [198 Cal. Rptr. 145, 673 P.2d 732]: "The drunk driver cuts a wide swath of death, pain, grief, and untold physical and emotional injury 534*534 across the roads of California and the nation. The monstrous proportions of the problem have often been lamented in graphic terms by this court and the United States Supreme Court. (See Taylor v. Superior Court (1979) 24 Cal.3d 890, 898-899 [157 Cal. Rptr. 693, 598 P.2d 854]) [quoting U.S. Dept. Health, Ed. & Welf., 3d Special Rep. U.S. Cong. on Alcohol and Health (1978)];...) ... Indeed, in the years 1976 to 1980 there were many more injuries to California residents in alcohol-related traffic accidents than were suffered by the entire Union Army during the Civil War, and more were killed than in the bloodiest year of the Vietnam War. (Compare Cal. Highway Patrol, 1980 Ann. Rep., Fatal & Injury Motor Vehicle Traffic Accidents, p. 2, tables 1a, 1b, 1c, 1d, and p. 58, tables 6a, 6b, with Statistical Abstract of U.S. (103d ed. 1982) p. 361, tables 598, 599.) Given this setting, our observation that `[d]runken drivers are extremely dangerous people' (Taylor v. Superior Court, supra, 24 Cal.3d 890, 899) seems almost to understate the horrific risk posed by those who drink and drive." (Id., at p. 262, italics added.) dui lawyer riverside 

Additionally, every year in the United States more than 50,000 people are killed on U.S. highways as a result of traffic accidents. Approximately one-half of these traffic fatalities are alcohol-related. (U.S. Dept. Transp., 1977 Highway Safety Act Rep., Appen. A-9, table A-1; cf. Jones & Joscelyn, Alcohol and Highway Safety 1978: A Review of the State of Knowledge (U.S. Dept. of Transp. 1978) pp. 11-26.) dui lawyer riverside 

Finally, the California Legislature has recognized just how dangerous driving under the influence can be by making the punishment for repeat offenders much more severe (Veh. Code, §§ 23165, 23170, 23175). dui lawyer riverside 

On defendant's knowledge and conscious disregard that his driving while intoxicated endangered the lives of others, in Watson the Supreme Court held, citing Taylor v. Superior Court, supra, that "`One who wilfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others.'" (People v. Watson, supra, 30 Cal.3d 290, 300-301.)

Here, of course, we have an additional element, which was not present in Watson, namely, defendant's four previous convictions for drunken driving, and his repeated exposure to a drinking driver's education program. dui lawyer riverside 

Defendant claims that his driving was far less dangerous than the defendants in the vehicular murder cases of Watson, supra, and People v. Fuller (1978) 86 Cal. App.3d 618 [150 Cal. Rptr. 515], where the defendants drove 535*535 at higher speeds and ran through red lights.[3] This contention is absurd. The case at bench, unlike Watson or Fuller, presents a portentous pattern of reckless, high-speed passing maneuvers on two-lane roads, involving repeated and deliberate driving into oncoming traffic, and culminating in a head-on collision. Defendant's conduct was even more egregious because the oncoming vehicle he collided with was clearly visible to defendant as he entered the opposing lane.

Moreover, "nowhere does the opinion in Watson state that all of the factors present in that case are necessary to a finding of second degree murder ... Watson ... deliberately declin[ed] to prescribe a formula for analysis of vehicular homicide cases, instead requiring a case-by-case approach." (People v. Olivas (1985) 172 Cal. App.3d 984, 988-989 [218 Cal. Rptr. 567].) Olivas, incidentally, was a Watson-type vehicular homicide case in which the defendant was charged with murder, convicted of second degree murder in a court trial, and sentenced to a prison term of 15 years to life for the murder. We note this in response to defendant's comment in his brief that "[n]o case has come to our attention in which the defendant in a Watson-type case has received a sentence as severe as that imposed here." Moreover, in Olivas there was only one homicide victim. Here there were two. Although the court here could have imposed consecutive sentences on the two murder counts (Cal. Rules of Court, rule 425(a)(4); see also People v. Eagles (1982) 133 Cal. App.3d 330 [183 Cal. Rptr. 784]), and the People so requested, the court chose not to do so. dui lawyer riverside 

III

THE VERDICTS ON THE MURDER AND THE MANSLAUGHTER COUNTS dui lawyer riverside 

During its deliberations, the jury asked the court whether it should process verdicts on the murder and the manslaughter counts. The court responded that a verdict must be processed on each such count. Despite that response, the jury returned guilty verdicts on the murder counts and blank verdicts on the manslaughter counts. The court instructed the jury to resume deliberations and to return verdicts on the manslaughter counts. It did so, and returned guilty verdicts on those counts. Defense counsel requested that the jurors be polled on the murder counts only. The jurors were polled on those counts, and all answered in the affirmative. dui lawyer riverside 

536*536 (4) In his motion for a new trial, defendant argued that the jury's guilty verdicts on the manslaughter counts indicated that it had a reasonable doubt as to malice, and that he therefore could not be convicted of murder. The court disagreed, noting that the jury "clearly found malice" when it returned guilty verdicts on the murder counts and blank verdicts on the manslaughter counts, and that any error in the procedure which resulted in the guilty verdicts on the manslaughter counts was not prejudicial. At the People's request, the court then dismissed the manslaughter counts. dui lawyer riverside 

On appeal, defendant ignores the manner in which the verdicts were returned, and relies on People v. Dewberry (1959) 51 Cal.2d 548 [334 P.2d 852], where the court said that when "reasonable doubt exists as between degrees of the same offense or as between [an] inclusive and included offense, the jury can only convict of the crime whose elements have been proved beyond a reasonable doubt." (Id., at p. 556.) However, Dewberry is inapposite because, as the trial court found here, the manner in which the verdicts were returned showed that the jury "clearly found malice," i.e., murder. Thus no reasonable doubt as to that offense existed. Moreover, assuming, as defendant argued below, that vehicular manslaughter is a lesser included offense of murder (People v. Watson (1983) 150 Cal. App.3d 313 [198 Cal. Rptr. 26]), the jury's guilty verdicts as to both offenses should result in the dismissal of the lesser offense (People v. Tideman (1962) 57 Cal.2d 574, 582 [21 Cal. Rptr. 207, 370 P.2d 1007]), as was done here. Such dismissal "would not affect the integrity of the conviction and sentence for the greater [offense]." (Id.) dui lawyer riverside 

DISPOSITION

The judgment is affirmed. dui lawyer riverside 

Rickles, Acting P.J., and McDaniel, J., concurred. dui lawyer riverside 

Appellant's petition for review by the Supreme Court was denied July 31, 1986. dui lawyer riverside 

[*] Assigned by the Chairperson of the Judicial Council. dui lawyer riverside 

[1] A blood sample taken from defendant about two hours later revealed an alcohol level of .23 percent. A criminologist testified that the average burn-off rate was about .02 an hour, and that the .23 figure was equivalent to .27 two hours earlier.

[2] This estimate of defendant's speed was given at trial by a passenger in the Datsun. dui lawyer riverside 

[3] Defendant also relies on In re Peter F. (Cal. App.) which has been deleted by our Supreme Court, and on People v. Pulley (1964) 225 Cal. App.2d 366 [37 Cal. Rptr. 376], which was disapproved by the Supreme Court in People v. Williams (1965) 63 Cal.2d 452, 458, fn. 5 [47 Cal. Rptr. 7, 406 P.2d 647], and in any event is distinguishable because it is a felony murder case.
 dui lawyer riverside 
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People v. Landon, 183 Cal. App. 4th 1096 - Cal: Court of Appeal, 1st Appellate Dist., 2nd Div. 2010ReadHow citedSearch
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People v. Landon, 183 Cal. App. 4th 1096 - Cal: Court of Appeal, 1st Appellate Dist., 2nd Div. 2010
183 Cal.App.4th 1096 (2010)
107 Cal. Rptr. 3d 847

THE PEOPLE, Plaintiff and Respondent, dui lawyer riverside 
v.
BRENDA LOUISE LANDON, Defendant and Appellant. dui lawyer riverside 

No. A123779.

Court of Appeals of California, First District, Division Two. dui lawyer riverside 

April 13, 2010.

1098*1098 Matthew Zwerling and L. Richard Braucher, under appointments by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Laurence K. Sullivan and René A. Chacon, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION dui lawyer riverside 

LAMBDEN, J.— dui lawyer riverside 

On August 14, 2008, defendant pleaded guilty to driving under the influence (DUI) with a blood-alcohol level greater than 0.08 percent (Veh. Code, § 23152, subd. (b)); she admitted four prior DUI 1099*1099 convictions. Subsequently, defendant was arrested for another DUI and, on September 18, 2008, she pleaded guilty to a DUI with prior convictions within 10 years (Veh. Code, §§ 23152, subd. (a), 23550, subd. (a)) and admitted committing the crime while released on her own recognizance (Pen. Code, § 12022.1, subd. (b)).[1] The court held a sentencing hearing for both of these cases and sentenced defendant to state prison for a total of four years eight months. dui lawyer riverside 

On appeal, defendant urges us to remand the matter to the trial court for a new sentencing hearing. Defendant contends the lower court erred and violated her due process rights under the Fourteenth Amendment when it found her statutorily ineligible for probation under section 1203, subdivision (e)(4). We will not remand for a new sentencing hearing because defendant failed to establish prejudice.v dui lawyer riverside 

While this appeal was pending, the Legislature amended section 4019, which changed the calculation of presentence conduct credit. Defendant filed a motion in the trial court requesting that her presentence conduct credits be calculated in accordance with the amended statute. The lower court denied this request, finding that the amended statute did not apply retroactively. Defendant appealed from this ruling. dui lawyer riverside 

We note that the Third Appellate District has held that the amended statute applies retroactively (People v. Brown (2010) 182 Cal.App.4th 1354 (Brown)), while the Fifth Appellate District has held that it applies prospectively only (People v. Rodriguez (2010) 182 Cal.App.4th 535 [105 Cal.Rptr.3d 345] (Rodriguez)). We agree with the reasoning of the Third Appellate District and therefore hold that the amended statute applies retroactively. dui lawyer riverside 

BACKGROUND dui lawyer riverside 

The Two Arrests and Pleas dui lawyer riverside 

At 9:49 p.m., on November 21, 2007, an officer received a dispatch report regarding a female driving a white van and a possible DUI. The officer spotted the white van, which was traveling at an extremely high rate of speed and without lit headlights. The officer saw the van proceed through two intersections without stopping or slowing. The officer had to drive approximately 70 miles per hour to come close enough to stop the van.

Defendant was the driver of the white van. As defendant got out of the vehicle, the officer saw her almost fall over. Defendant had an "extremely 1100*1100 unsteady gait." The officer noticed that the left side of defendant's nose had blood from a scratch and defendant had a cut on the right side of her forehead. Defendant was too intoxicated to respond to the officer's question about what had happened. The officer had defendant perform field sobriety tests. She refused to submit to a preliminary alcohol screening test. Dispatch advised the officer that defendant was on probation for a DUI and that she had a suspended driver's license. The officer arrested defendant. She was transported to a medical center where a blood sample was taken and she had a blood-alcohol content of 0.26 percent. dui lawyer riverside 

On March 13, 2008, an information was filed in case No. SCUKCRCR0781676, which charged defendant with two counts of DUI with prior convictions within 10 years (Veh. Code, §§ 23152, subds. (a) & (b), 23550, subd. (a)), and one count of misdemeanor driving while privileges were suspended (Veh. Code, § 14601.2, subd. (a)). The information alleged defendant had a blood-alcohol content of 0.15 percent or higher (Veh. Code, § 23578) and was driving 20 miles per hour over the maximum speed limit (Veh. Code, § 23582, subd. (a)). dui lawyer riverside 

On April 8, 2008, defendant pleaded not guilty to all charges and denied all allegations. dui lawyer riverside 

At 8:55 p.m., on June 28, 2008, an officer received a report of a woman driving a beige Mazda recklessly northbound on Main Street in Willits. The report stated that the driver, later identified as defendant, was swerving in and out of lanes of traffic and tailgating. dui lawyer riverside 

An officer stopped defendant's car as she was driving from a gas station. When defendant got out of her vehicle and approached the officer, the officer smelled alcohol and marijuana on defendant's breath and person. The officer also noticed that defendant's eyes were red and watery and that she was slurring her speech. Defendant told the officer that she had numerous joint and skeletal problems making her unable to perform the field sobriety tests. She submitted to an in-field preliminary alcohol screening that showed a blood-alcohol content of 0.10 percent. The officer arrested defendant. dui lawyer riverside 

On July 21, 2008, an information in case No. SCWLCRCR0885031 was filed. This information charged defendant with one count of DUI with prior convictions within 10 years (Veh. Code, §§ 23152, subd. (a), 23550, subd. (a)), one count of transporting marijuana (Health & Saf. Code, § 11360, subd. (a)), and one count of misdemeanor driving while privileges were suspended (Veh. Code, § 14601.2, subd. (a)). The information alleged that the crimes were committed while defendant was released on her own recognizance (Pen. Code, § 12022.1, subd. (b)). dui lawyer riverside 

1101*1101 On August 14, 2008, pursuant to a negotiated disposition in case No. SCUKCRCR0781676, defendant pleaded guilty to a DUI with a blood-alcohol level greater than 0.08 percent (Veh. Code, § 23152, subd. (b)), and admitted four prior DUI convictions. dui lawyer riverside 

On September 18, 2008, pursuant to a negotiated disposition in case No. SCWLCRCR0885031, defendant pleaded guilty to a DUI with prior convictions within 10 years (Veh. Code, §§ 23152, subd. (a), 23550, subd. (a)), and admitted committing the crime while released on her own recognizance (Pen. Code, § 12022.1, subd. (b)).
 dui lawyer riverside 
Defendant's Competency dui lawyer riverside 

The matter was set for sentencing but, on December 2, 2008, defense counsel expressed doubt regarding defendant's competency under section 1368. The court suspended proceedings and appointed two psychologists to evaluate defendant's competence. On December 17, 2008, the court reviewed the psychologists' reports and found defendant legally competent and reinstated criminal proceedings. dui lawyer riverside 

The Probation Report dui lawyer riverside 

The probation officer filed her report and recommendation. The probation officer recommended that the court deny probation and sentence defendant to a total of five years. The probation report set forth the following convictions of defendant in Louisiana: soliciting for prostitution in February 1989, "access device fraud" in 1992, forgery in 1993, and issuing worthless checks in 1993. dui lawyer riverside 

Defendant's current probation officer spoke with Felix Indest, defendant's probation officer in Louisiana. According to Indest, defendant had a history of substance abuse and prostitution. dui lawyer riverside 

With regard to criteria affecting probation, the California probation officer stated that the circumstances of the crimes as compared to other instances of the same crime were more serious because of defendant's high blood-alcohol level and the speed she was traveling in her vehicle. The circumstances in aggravation, according to the probation report, were defendant's numerous prior convictions as an adult, which increased in seriousness. Additionally, defendant was on probation when the crime was committed and defendant's prior performance on probation had been unsatisfactory. Defendant appeared remorseful but the probation officer warned that defendant's DUI history was likely to persist and that she would continue to endanger others if not imprisoned. With regard to circumstances in mitigation, the probation officer 1102*1102 noted that defendant suffered from an alcohol addiction, which possibly reduced her culpability for the crime. dui lawyer riverside 

The probation officer noted that defendant had pleaded guilty to her fifth DUI. The probation officer stated that defendant had been provided ample opportunity to address her alcohol problems, but had failed to do so and continued to be a serious danger to the community. At the time of the probation report, defendant had a pending matter in the court for her sixth DUI. The probation officer stated that defendant had four prior felony convictions in Louisiana and was presumptively ineligible for probation, except in unusual cases where the interest of justice would be served. The probation officer stated that she did "not see any circumstances in this case, which would justify this case as unusual."

The Sentencing Hearing dui lawyer riverside 

Defendant testified at the sentencing hearing and promised never to drink alcohol again and requested probation conditioned on a long-term residential treatment program. Defense counsel argued that the court did not have reliable evidence that two of the convictions in Louisiana would have been punishable as felonies in California within the meaning of section 1203, subdivision (e)(4). Further, even if defendant had two or more prior felony convictions, defense counsel argued that probation was proper in this case. dui lawyer riverside 

At the end of the hearing on January 6, 2009, the court found defendant statutorily ineligible for probation; it did not find that there were sufficient unusual circumstances to grant probation. The court sentenced defendant to a total of four years eight months for both cases. The court awarded a total of 289 days' credit for time served (193 actual days in custody, plus 96 conduct credit days under former § 4019, subds. (b) & (c)). dui lawyer riverside 

On January 15, 2009, defendant filed a timely notice of appeal. dui lawyer riverside 

Presentence Credits dui lawyer riverside 

On January 25, 2010, section 4019 was amended to provide for one day of work time credit and one day of conduct credit for each four-day period in custody. On February 9, 2010, defendant filed a motion under section 1237.1 in superior court, requesting an order to recalculate her presentence credits in accordance with amended section 4019. Defendant argued that the amended version of the statute entitled her to an increase in presentence credits. After a hearing on February 19, 2010, the court denied the motion. dui lawyer riverside 

1103*1103 On February 23, 2010, defendant filed a notice of appeal from the denial of her request for presentence credits. Defendant requested permission from this court to file a supplemental brief to address this issue and we granted this request on March 3, 2010. dui lawyer riverside 

DISCUSSION dui lawyer riverside 

I. Denial of Probation dui lawyer riverside 

Defendant contends that the lower court's refusal to grant her probation based on section 1203, subdivision (e)(4)[2] violated her due process rights under the Fourteenth Amendment. The trial court found that she was presumptively ineligible for probation because she had two convictions in Louisiana. Defendant maintains that the two convictions in another state have to be punishable in California as a felony and the evidence did not show that defendant's four convictions in Louisiana constituted a felony if committed in California. Defendant concedes that her prior forgery conviction in Louisiana qualified as a felony under California law, but maintains that the record is insufficient to show that any of the other three convictions met the statutory requirements. She asserts that we should remand the matter for a new sentencing hearing. dui lawyer riverside 

The People do not challenge defendant's argument that the record does not establish that any of the convictions in Louisiana, other than the forgery conviction, satisfies the statutory requirements under section 1203, subdivision (e)(4). The People contend, however, that even if the statutory requirements were not met, defendant cannot prevail because she cannot demonstrate prejudice from any sentencing error. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) dui lawyer riverside 

We agree with the People that defendant cannot demonstrate prejudice. Had the trial court not found defendant presumptively ineligible for probation as the result of her two prior convictions in Louisiana, the trial court would still undoubtedly have terminated probation and sentenced her to state prison. The trial court was presented with overwhelming evidence that defendant's conduct while on probation was unsatisfactory. Defendant's criminal history consisted of six misdemeanor California convictions and four Louisiana convictions. At the time of defendant's arrest in case 1104*1104 No. SCUKCRCR0781676, defendant was on two grants of summary probation from Lake County for two DUI convictions.

The probation officer stated in her report that defendant "is appearing before the court, having pled guilty to a fifth felony [DUI]. She has been given several opportunities to address her alcohol problems, but they have had little effect on her. She continues to be a serious danger to the community. The defendant has a pending matter in superior court for her sixth [DUI] matter. It appears that the defendant has not realized society will not accept this type of behavior." dui lawyer riverside 

(1) Rather than provide evidence to show prejudice, defendant claims the sentencing hearing did not comport with the most basic of procedural safeguards and maintains that the information considered by the court was not reliable. (See People v. Peterson (1973) 9 Cal.3d 717, 726 [108 Cal.Rptr. 835, 511 P.2d 1187] [probation hearings do not require the same procedural safeguards as trials on the issue of guilt, but "an applicant for probation is nevertheless entitled to relief on due process grounds if the hearing procedures are fundamentally unfair"]; see also People v. Arbuckle (1978) 22 Cal.3d 749, 754-755 [150 Cal.Rptr. 778, 587 P.2d 220] ["Reliability of the information considered by the court is the key issue in determining fundamental fairness."]; People v. Eckley (2004) 123 Cal.App.4th 1072, 1080 [20 Cal.Rptr.3d 555] ["A court's reliance, in its sentencing and probation decisions, on factually erroneous sentencing reports or other incorrect or unreliable information can constitute a denial of due process."].) Defendant argues that a sentence cannot be based on false information. (See U.S. v. Weston (9th Cir. 1971) 448 F.2d 626, 634 [the defendant denied the information contained in the presentencing report and the Ninth Circuit held that the hearsay information in the report was of so little value that the trial court should not have relied upon this information when imposing the maximum term].) dui lawyer riverside 

Defendant's argument lacks merit because most of the evidence presented at the sentencing hearing was reliable. Although the evidence may not have satisfied the requirements of section 1203, subdivision (e)(4), the evidence did show defendant would be unable to comply with the conditions of probation in the future. This evidence was both reliable and overwhelming. Indeed, when sentencing defendant to the midterm for case No. SCUKCRCR0781676, the court commented on defendant's repeated offenses and stated, "This is a borderline aggravated [case]."

We decline to order a remand because it is not reasonably probable the trial court would impose a different sentence. (People v. Coelho (2001) 89 Cal.App.4th 861, 889-890 [107 Cal.Rptr.2d 729] [where the trial court was 1105*1105 unaware of the breadth of its discretion, no reversal and remand for resentencing is necessary as the remand would be an idle act that exalts form over substance because it is not reasonably probable the court would impose a different sentence]; see also People v. Fuhrman (1997) 16 Cal.4th 930, 945-946 [67 Cal.Rptr.2d 1, 941 P.2d 1189] [no remand required where record shows that it is unlikely that the trial court would strike the prior conviction in a three strikes case].) Defendant gave the court no reason to believe that she would comply with the conditions of her probation in the future. dui lawyer riverside 

II. Presentence Credit dui lawyer riverside 

(2) Under section 2900.5, a person sentenced to state prison for criminal conduct is entitled to credit against the term of imprisonment for all days spent in custody before sentencing. (§ 2900.5, subd. (a).) In addition, section 4019 provides that a criminal defendant may earn additional presentence credit against his or her sentence for willingness to perform assigned labor (§ 4019, subd. (b)) and compliance with rules and regulations (§ 4019, subd. (c)). These forms of presentence credit are called, collectively, conduct credit. (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3 [95 Cal.Rptr.3d 408, 209 P.3d 623].) dui lawyer riverside 

When defendant was sentenced in January 2009, under the version of section 4019 then in effect, conduct credit could be accrued at the rate of two days for every four days of actual presentence custody. (Former § 4019.) In October 2009, the Legislature passed Senate Bill No. 18 (2009-2010 3d Ex. Sess.) (Senate Bill 18). Senate Bill 18 "addresses the fiscal emergency declared by the Governor by proclamation on December 19, 2008." (Stats. 2009, 3d Ex. Sess., ch. 28, § 62.) Its provisions provide various means by which prison populations may be reduced, thereby easing prison overcrowding and lowering the cost. This bill, among other things, amended section 4019, effective January 25, 2010, to provide that any person who is not required to register as a sex offender and is not being committed to prison for, or has not suffered a prior conviction of, a serious felony as defined in section 1192.7 or a violent felony as defined in section 667.5, subdivision (c), to accrue conduct credit at the rate of four days for every four days of presentence custody. dui lawyer riverside 

(3) Defendant contends that the amendment applies retroactively and, because her conviction was not final on January 25, 2010, the amendment applies to her. "[A]bsent a saving clause, a criminal defendant is entitled to the benefit of a change in the law during the pendency of his appeal . . . ." (People v. Babylon (1985) 39 Cal.3d 719, 722 [216 Cal.Rptr. 123, 702 P.2d 205].) "`[F]or the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for 1106*1106 petitioning for a writ of certiorari in the United States Supreme Court has passed. [Citations.]' [Citation.]" (People v. Vieira (2005) 35 Cal.4th 264, 306 [25 Cal.Rptr.3d 337, 106 P.3d 990].) dui lawyer riverside 

The People argue that the amendment does not apply retroactively and therefore the lower court properly calculated defendant's conduct credit based on former section 4019. dui lawyer riverside 
 dui lawyer riverside 
This issue has recently been addressed by the Third Appellate District in Brown, supra, 182 Cal.App.4th 1354 and the Fifth Appellate District in Rodriguez, supra, 182 Cal.App.4th 535. The Third Appellate District held that the amended statute applies retroactively, while the Fifth Appellate District held that it applies prospectively only. For the reasons discussed below, we agree with the reasoning of the Third Appellate District.

(4) Section 3 provides that "[n]o part of [the Penal Code] is retroactive, unless expressly so declared." Thus, "`[a] new statute is generally presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise. [Citation.]'" (People v. Alford (2007) 42 Cal.4th 749, 753 [68 Cal.Rptr.3d 310, 171 P.3d 32].) dui lawyer riverside 

Here, the 2010 amendment to section 4019 contains no express language that it has retroactive application. However, the Supreme Court created an exception to section 3 in In re Estrada (1965) 63 Cal.2d 740 [48 Cal.Rptr. 172, 408 P.2d 948] (Estrada). In Estrada, the court considered whether a statute mitigating the punishment for escape should be applied retroactively to a defendant who escaped before the effective date of the mitigating statute; the statute was silent on the issue of retroactivity. (Id. at p. 744.) In deciding that the statute should be applied retroactively, the court explained: "When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final. This intent seems obvious, because to hold otherwise would be to conclude that the Legislature was motivated by a desire for vengeance, a conclusion not permitted in view of modern theories of penology." (Id. at p. 745.) Thus, "where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed." (Id. at p. 748.)
v dui lawyer riverside 
1107*1107 Senate Bill 18 does not have a saving clause and, as already stated, no express statement of intent. Under Estrada, if the amendment is a reduction in punishment, we must presume retroactive application, at least as to cases not yet final on the effective day. The Brown court held that Senate Bill 18 is a reduction of punishment and therefore has a retroactive application. (Brown, supra, 182 Cal.App.4th at p. 1365.) It cited People v. Hunter (1977) 68 Cal.App.3d 389 [137 Cal.Rptr. 299] (Hunter), where the court held that an amendment to section 2900.5, which permitted an award of presentence custody credits, had retroactive application despite the legislation containing no express statement of retroactive or prospective application. (Hunter, supra, at p. 392.) dui lawyer riverside 

The People here, as they did in Brown, argue that Hunter, supra, 68 Cal.App.3d 389 is distinguishable because Hunter involved actual custody credits rather than conduct credits. The latter's purpose is to create an incentive for good behavior while the objective for actual credits is to reduce the remaining punishment imposed. This distinction, however, is not significant. As the Brown court pointed out, an amendment to a statute involving conduct credits was applied retroactively in People v. Doganiere (1978) 86 Cal.App.3d 237 [150 Cal.Rptr. 61]. The Doganiere court concluded, "[I]t must be presumed that the Legislature thought the prior system of not allowing credit for good behavior was too severe." (Doganiere, supra, at p. 240.) dui lawyer riverside 

Here, the People argue that the reasoning in People v. Doganiere is unsound and attempt to bolster this assertion by citing to In re Stinnette (1979) 94 Cal.App.3d 800 [155 Cal.Rptr. 912]. In Stinnette, the court considered an amendment to section 2931 under the Determinate Sentencing Act (DSA), which allowed prisoners to earn conduct credits but restricted application of the amendment to time served after the effective date. (Stinnette, supra, at p. 803.) The DSA expressly provided for prospective application and therefore the issue before the court was whether this prospective application violated equal protection. (Stinnette, supra, at p. 804.) The court concluded that it did not. (Id. at pp. 805-806.) The amendment to section 4019, unlike the amendment in Stinnette, does not specify the Legislature's intent regarding its retroactive or prospective application and therefore Stinnette is not relevant to determining the Legislature's intent when amending section 4019. dui lawyer riverside 

The People also cite Rodriguez, supra, 182 Cal.App.4th 535, a recent Fifth Appellate District decision, which concluded that the amendment to section 4019 does not apply retroactively. The Fifth Appellate District in Rodriguez concluded that Estrada concerned a reduction in the penalty for a specific offense and therefore the Legislature must have determined that the penalty for that offense was too severe. (Rodriguez, supra, at pp. 540-541.) In 1108*1108 contrast, the Rodriguez court emphasized that the amendment to section 4019 increases the rate at which a criminal defendant can earn conduct credit and does not reflect a determination that a penalty for a particular crime is too severe. (Rodriguez, supra, at pp. 541-542.) Furthermore, the Rodriguez court reasoned that conduct credit should not apply retroactively because its purpose is to provide an incentive for good behavior while incarcerated. (Id. at pp. 542-543.)
 dui lawyer riverside 
(5) We do not agree with the Rodriguez court that the present case is significantly different from the situation in Estrada. In Estrada, the amendment at issue lessened the punishment for a group of offenders. Here, the amendment to section 4019 reduces the punishment for a subset of prisoners who have good conduct in jail while awaiting trial. We do not deem it significant that the reduction in time is tied to conduct rather than to a specific offense. dui lawyer riverside 

Further, we agree with the Brown court that it may be reasonably inferred from section 59 of Senate Bill 18, that the Legislature intended a retroactive application. Section 59 of Senate Bill 18 reads: "The Department of Corrections and Rehabilitation shall implement the changes made to this act regarding time credits in a reasonable time. However, in light of limited case management resources, it is expected that there will be some delays in determining the amount of additional time credit to be granted against inmate sentences resulting from changes in law pursuant to this act. An inmate shall have no cause of action or claim for damages because of any additional time spent in custody due to reasonable delays in implementing the changes in the credit provisions of this act. However, to the extent that excess days in state prison due to delays in implementing this act are identified, they shall be considered as time spent on parole, if any parole period is applicable." (Stats. 2009, 3d Ex. Sess., ch. 28, § 59.) As the Brown court pointed out, if the Legislature did not intend retroactive application, it would not have been concerned with "delays in determining the amount of additional time credits to be granted against inmate sentences resulting from changes in law pursuant to this act." (Stats. 2009, 3d Ex. Sess., ch. 28.) dui lawyer riverside 

(6) Here, the sentencing court originally awarded defendant 289 days of presentence custody credit (193 actual days in custody plus 96 work and conduct credits). We conclude that amended section 4019 applies retroactively[3] and therefore defendant is entitled to custody credits totaling 385 days (193 actual days in custody plus 192 work and conduct credits). dui lawyer riverside 

1109*1109 DISPOSITION dui lawyer riverside 

The denial of probation is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting an additional 96 days of presentence custody credit for a total custody credit of 385 days, and to forward a certified copy of said amended abstract to the Department of Corrections and Rehabilitation. As amended, the judgment is affirmed. dui lawyer riverside 

Kline, P. J., and Richman, J., concurred. dui lawyer riverside 

[1] All further unspecified code sections refer to the Penal Code. dui lawyer riverside 

[2] Section 1203, subdivision (e)(4) provides: "Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any of the following persons:" "Any person who has been previously convicted twice in this state of a felony or in any other place of a public offense which, if committed in this state, would have been punishable as a felony." dui lawyer riverside 

[3] We need not consider defendant's equal protection argument. dui lawyer riverside 

Save trees - read court opinions online on Google Scholar.of America, Plaintiff-Appellee, dui lawyer riverside 
v.
Wesley G. CRANER, Defendant-Appellant. dui lawyer riverside 

No. 80-1344. dui lawyer riverside 

United States Court of Appeals, Ninth Circuit.Argued and Submitted November 10, 1980.
Decided July 27, 1981.
Rehearing and Rehearing Denied October 16, 1981. dui lawyer riverside 

Martha J. Holden, Asst. Federal Public Defender, Sacramento, Cal., for defendant-appellant. dui lawyer riverside 

24*24 William Shubb, U.S. Atty., Sacramento, Cal., argued, for plaintiff-appellee; Fern Segal, Asst. U.S. Atty., Sacramento, Cal., on brief.

Before BROWNING, Chief Judge, PECK[*], and SNEED, Circuit Judges. dui lawyer riverside 

Rehearing and Rehearing En Banc Denied October 16, 1981. dui lawyer riverside 

PECK, Circuit Judge. dui lawyer riverside 

Appellant Craner was convicted at a bench trial of driving under the influence of alcohol in Yosemite National Park, a violation of regulations promulgated by the Secretary of the Interior.[1] On appeal, Craner contends that the district court erred in denying his motion for a jury trial.

Although Craner was sentenced only to probation and to attendance at traffic school, the offense of which he was charged carries a maximum penalty of six months' imprisonment or a $500 fine, or both, plus payment of costs. 36 C.F.R. § 1.3 (1980). Craner's appeal raises the issue whether this offense is a "serious" one for which the Federal Constitution[2] guarantees a trial by jury. dui lawyer riverside 

The Supreme Court has accorded constitutional stature to the common-law rule that "petty" offenses may be tried without the intervention of a jury. See, e. g., Bloom v. Illinois, 391 U.S. 194, 210, 88 S.Ct. 1477, 1486, 20 L.Ed.2d 522 (1968); Duncan v. Louisiana, 391 U.S. 145, 160, 88 S.Ct. 1444, 1453, 20 L.Ed.2d 491; Callan v. Wilson, 127 U.S. 540, 557, 8 S.Ct. 1301, 1307, 32 L.Ed. 223 (1888). Traditionally, the Court has looked to the nature of an offense in ranking it "serious" or "petty." See District of Columbia v. Colts, 282 U.S. 63, 72-73, 51 S.Ct. 52, 53, 75 L.Ed. 177 (1930); Callan, supra, 127 U.S. at 552, 555, 8 S.Ct. at 1305-1306. The Court has more recently stressed the maximum authorized penalty as an objective criterion of the gravity of an offense. See Duncan, supra, 391 U.S. at 161-62, 88 S.Ct. at 1453-1454. In a recent spate of cases involving criminal contempts — crimes for which the punishment is not set by legislatures — the Court looked only to the punishment actually imposed to determine defendants' rights to jury trials. See Muniz v. Hoffman, 422 U.S. 454, 476-77, 95 S.Ct. 2178, 2190-2191, 45 L.Ed.2d 319, (1975); Codispoti v. Pennsylvania, 418 U.S. 506, 511, 94 S.Ct. 2687, 2690, 41 L.Ed.2d 912 (1974); Taylor v. Hayes, 418 U.S. 488, 496, 94 S.Ct. 2697, 2702, 41 L.Ed.2d 897 (1974); Bloom, supra, 391 U.S. at 211, 88 S.Ct. at 1487; Cheff v. Schnackenberg, 384 U.S. 373, 380, 86 S.Ct. 1523, 1526, 16 L.Ed.2d 629 (1966) (plurality opinion). The importance in these cases of the objective criterion of actual punishment, is, however, limited: the Court recognized that criminal contempt is an offense sui generis. It is "not a crime of the sort that requires the right to jury trial regardless of the penalty involved." Bloom, supra, 391 U.S. at 211, 88 S.Ct. at 1487; accord, Muniz, supra, 422 U.S. at 476, 95 S.Ct. at 2190; Cheff, supra, 384 U.S. at 380, 86 S.Ct. at 1526 (plurality opinion). In the quest for objectivity, the Supreme Court has not thrown out the rule that an offense may be serious enough, apart from its assigned penalty, that the Constitution would require that it be tried by a jury. United States v. Sanchez-Meza, 547 F.2d 461, 463-64 (9th Cir. 1976). dui lawyer riverside 

An offense is not "serious" because it is severely punished; it is severely punished because it is "serious." The severity of prescribed sanctions is regarded as the best objective indication of the general normative judgment of the seriousness of an offense. Baldwin v. New York, 399 U.S. 66, 25*25 68, 90 S.Ct. 1886, 1887, 26 L.Ed.2d 437 (1970) (plurality opinion). The extent of possible punishment does not, however, alone determine whether an offense is serious or petty. Although Congress has established the sanctions of six months' imprisonment or $500 in fines as the bright line between serious and petty offenses, see 18 U.S.C. § 1(3), the Supreme Court has not found "talismanic significance" in this formula when determining whether a constitutional right to a jury trial exists. Muniz, supra, 422 U.S. at 477, 95 S.Ct. at 2190. Inquiry into the seriousness of an offense does not end where Title 18 begins. Otherwise the constitutional right to a jury trial would exist only at the sufferance of the legislative branch. dui lawyer riverside 

Nothing in the plurality opinion in Baldwin, on which the government particularly relies, is to the contrary. Justice White, writing for three members of the Court in Baldwin, stated that "a potential sentence of more than six months' imprisonment is sufficiently severe by itself to take the offense out of the category of `petty'." No member of the Court expressed the view that a lesser potential sentence requires classification of an offense as petty. On the contrary, Justices Black and Douglas, who concurred only in the judgment in Baldwin, thought that the Constitution guaranteed the right to a jury trial of all crimes. See 399 U.S. at 74-75, 90 S.Ct. at 1891 (concurring opinion). dui lawyer riverside 

This is not disingenuous interpretation. It is the explanation of Baldwin offered by the Court itself. See Codispoti, supra, 418 U.S. at 512 n. 4, 94 S.Ct. at 2691 n. 4. dui lawyer riverside 

Authorized punishment reflects the seriousness of an offense. It does not determine it. To gauge the seriousness of an offense, the Supreme Court has in recent years looked to the authorized penalty and to the "relevant rules and practices followed by the federal and state regimes." Muniz, supra, 422 U.S. at 476, 95 S.Ct. at 2190. See also Duncan v. Louisiana, supra, 391 U.S. at 159-61, 88 S.Ct. at 1452-1453. dui lawyer riverside 

Without question, the maximum penalty for an offense is usually more important than any other criterion used in characterizing the offense as serious or petty. As a rule, the penalty best shows, or is taken to best show, the public's measure of the gravity of an offense. Frank v. United States, 395 U.S. at 147, 149, 89 S.Ct. 1503 at 1505, 23 L.Ed.2d 162. In the present case, however, Congress, as the public's surrogate, did not set the six-month, $500 maximum penalty as the appropriate one for the specific offense of driving under the influence (DUI). The Secretary of the Interior did. See 36 C.F.R. § 1.3 (1980). The penalty for drunken driving is the severest one the Secretary may authorize. See 16 U.S.C. § 3. It is the same penalty authorized for a myriad of offenses — from climbing Mount Rushmore (16 C.F.R. § 7.77 [1980]) to digging for bait in a national park (16 C.F.R. § 2.13(d) [1980]). See 16 C.F.R. § 1.3 (1980). We cannot hazard that the Secretary's indiscriminate authorization of this penalty for varied offenses, or Congress's general limitation on the sentences the Secretary may authorize, represents a considered legislative judgment of the gravity of the offense of DUI. dui lawyer riverside 

Craner argues that there is an additional consequence of a DUI conviction beyond the sentence he faced: he could lose his California driver's license. The government contends that under United States v. Hamdan, 552 F.2d 276 (9th Cir. 1977), this Court must refuse to consider "collateral consequences" of a conviction in determining if the Constitution requires a charge to be tried to a jury. In Hamdan, two defendants were charged with making false statements in documents filed with the Immigration and Naturalization Service. The crime was punishable with six months' imprisonment or a fine of $1,000, or both. A divided panel of this Court held that the possibility of imposition on an individual of a fine greater than $500 automatically takes an offense from the "petty" class; the court therefore ruled that the defendants were entitled to a jury trial. Muniz, supra, was distinguished: in Muniz, the defendant to a criminal contempt charge was a 13,000-member union. The $10,000 fine 26*26 imposed on the union was paltry when reckoned per capita. Denial of a jury trial was upheld. In Hamdan, the possible fines per capita were $1,000; this court, stressing the need for a standard of seriousness applicable to all individual defendants, adopted 18 U.S.C. § 1(3)'s $500 figure as the fine beyond which any offense became a serious one. See 552 F.2d at 278-79. The specific holding of Hamdan was that the court would not look to an individual defendant's ability to pay to decide whether a maximum fine itself rendered a crime serious. dui lawyer riverside 

Hamdan does not forbid consideration of the future legal significance of a conviction in deciding whether an offense is a serious one. Although a license revocation is itself a regulatory, not a punitive action, United States v. Best, 573 F.2d 1095, 1099 (9th Cir. 1978), the threat of loss of a license as important as a driver's license, a deprivation added to penal sanctions, is another sign that the DUI defendant's community does not view DUI as a petty offense. It is irrelevant to the determination of Craner's rights to a jury trial whether this loss has occurred, will surely occur, or simply could occur. Cf. Duncan, supra, 391 U.S. at 159-60, 88 S.Ct. at 1452-1453 (possible penalty, not the one actually imposed, is the gauge of a locality's "social and ethical judgments" of the gravity of an offense). dui lawyer riverside 

Federal and state precedent and practices counsel ranking DUI as a "serious" crime. In 1930 the Supreme Court held that the analogous offense of reckless driving was a serious offense within the constitutional guarantee of trial by jury. See District of Columbia v. Colts, 282 U.S. 63, 51 S.Ct. 52, 75 L.Ed. 177 (1930). The Court in Colts reasoned that reckless driving was both indictable at common law[3] and malum in se, and hence, serious. dui lawyer riverside 

There is no legally meaningful distinction between the present case and Colts. The government, therefore, understandably argues that Colts is superannuated and, as precedent, abandoned. Yet Colts was cited by Justice White without disapproval in Baldwin — the very case that supposedly doomed "the nature of the offense" as the determinant of the right to a jury trial. See Baldwin, supra, 399 U.S. at 69 n. 6, 90 S.Ct. at 1888 n. 6 (plurality opinion). This Court has rejected the argument that the Colts line of cases should not be followed; the Supreme Court has never repudiated Colts, although it has had many opportunities to do so. United States v. Sanchez-Meza, supra, 547 F.2d at 463-64. See also United States v. Stewart, 568 F.2d 501, 503 (6th Cir. 1978); United States v. Woods, 450 F.Supp. 1335, 1342 (D.Md.1978); Brady v. Blair, 427 F.Supp. 5, 9 (S.D.Ohio 1976).[4] dui lawyer riverside 

27*27 At least seven of the states in this Circuit guarantee the DUI defendant the right to a jury trial.[5] This is a better objective gauge of the common perception of the gravity of the offense than the broad formula for classifying crimes found in 18 U.S.C. § 1. It accords with the relevant state and federal practice that Craner have the jury trial he seeks.
 dui lawyer riverside 
This holding is not an impractical one. Given the comparative rarity of federal DUI prosecutions, the administrative benefits afforded by summary proceedings in these cases are slight, particularly since a high rate of waiver of jury trials may be expected.[6] We cannot say that as a constitutional matter these benefits outweigh defendants' interests in being tried by their peers if they so choose. dui lawyer riverside 

Reversed and remanded.

SNEED, Circuit Judge, concurring in the result only: dui lawyer riverside 

I concur in the result reached by the majority.
 dui lawyer riverside 
I agree that neither Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970), nor Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974), hold that all offenses with respect to which the authorized prison term is six months or less and the fine $500 or less are "petty." Their holdings point the other way, viz., offenses carrying terms in excess of six months and fines of more than $500 must be tried before a jury. The upshot is that the latter type of offense is never "petty," while the former usually is. It is also true that this court in United States v. Sanchez-Meza, 547 F.2d 461 (9th Cir. 1976), recognized that factors other than the maximum sentence possible are relevant in determining whether an offense is "petty." dui lawyer riverside 

I also agree with the majority that under the circumstances of this case the maximum penalty imposed by the Secretary of Interior does not, as the majority observes, represent the considered legislative judgment of the gravity of the offense. Nor does it, in my opinion, represent a considered executive judgment of the gravity. The Secretary could impose no greater penalty; the 28*28 range of penalties available to him was too narrow. As a consequence, the DUI offense and digging for bait in a national park are, as the majority point out, given the same maximum penalty.

Under these circumstances it is appropriate to diminish the importance of the maximum penalty in determining whether the DUI offense is "petty" and focus on the additional consequences that attend conviction of this offense. Under California law these consequences are substantial. See Cal.Veh.Code §§ 13210, 13352, 13352.5. Their substantiality justifies treating the DUI offense as "serious." Had the maximum penalty here available reflected considered legislative or executive judgment I would be inclined to treat the DUI offense as "petty" notwithstanding these consequences. Put another way, a maximum penalty of six months and a $500 fine in the absence of extraordinary circumstances such as are present in this case should indicate the offense is petty. dui lawyer riverside 

The flaw I find in the majority opinion is that it is open to the interpretation that the maximum penalty is only one of several possible factors of approximately equal weight to be employed in determining whether an offense is petty. I write to indicate that that interpretation is not my understanding of the law. dui lawyer riverside 

[*] The Honorable John W. Peck, Senior Circuit Judge, United States Court of Appeals for the Sixth Circuit, sitting by designation. dui lawyer riverside 

[1] 16 C.F.R. § 4.6 (1980) prohibits driving under the influence of intoxicating liquor or drugs in park areas. dui lawyer riverside 

[2] Article III, governing the federal judiciary, provides: "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury." U.S.Const. art. III, § 2, cl. 3. The Sixth Amendment says that "[i]n all criminal prosecutions, the accused shall enjoy the right to a ... trial, by an impartial jury...."

[3] A questionable proposition. The Court cited United States v. Hart, 26 Fed.Cas. 193 (D.Pa.1817), which flatly stated that driving a carriage wildly through crowded city streets was a breach of the peace indictable at common law. The Court also cited State v. Rodgers, 91 N.J.L. 212, 102 A. 433 (1917), which held that simple DUI (not compounded by noticeably dangerous driving) was not such a breach of the peace.

The utility of applying the standard of "indictability at common law" to the present case is doubtful. The phrase "indictable at common law," standing alone, has little meaning. In the fourteenth century, even the pettiest crimes were indictable at common law. Frankfurter & Corcoran, Petty Federal Offenses and the Right to Trial by Jury, 39 Harv.L.Rev. 917, 923 (1926). From Tudor times, Parliament reacted to the problem of overcrowded criminal dockets by excepting specific offenses from jury procedures. Id. at 925-26. ("Plus ca change ....") The Congressional attempt in 18 U.S.C. § 1 to define the class of petty offenses by a general formula does not follow this traditional model. See id. at 927. dui lawyer riverside 
 dui lawyer riverside 
Even if the era of the adoption of the Constitution is taken as the relevant epoch of the common law, we doubt that there is a common-law analog to the modern offense of DUI. Around the time of the American Revolution, violations of liquor laws and traffic laws were often tried before magistrates alone. Id. at 928. But cars are not horses, and the traffic and speeds of the eighteenth century are not those of the twentieth. Even Frankfurter and Corcoran, who exhaustively document colonial history, "conclude by saying that history presents a body of experience expressive of the judgment of its time, but does not save Congress nor the Supreme Court from the necessity for judgment in giving past history present application." Id. at 982. dui lawyer riverside 

[4] But see, contra, Justiniano Matos v. Gaspar Rodriguez, 440 F.Supp. 673, 676-77 (D.P.R.1976), a reckless driving case in which the district court ruled that Baldwin had, in effect, overruled Colts. This holding not only mistakes a plurality opinion for a majority one, it also misreads the plurality opinion, which was pointedly narrowed by its author, who wrote: "In this case, we decide only that a potential sentence in excess of six months' imprisonment is sufficiently severe by itself to take the offense out of the category of `petty'." Baldwin, supra, 399 U.S. at 69 n. 6, 90 S.Ct. at 1888 n. 6 (opinion of White, J.) dui lawyer riverside 

Under the court's reasoning in Justiniano Matos, a legislature could for strategic purposes take universally reprehended crimes, as, for example, rape or child molesting, out of the constitutional guarantees of jury trials by simply reducing the sentences authorized for the offenses.

[5] The right is guaranteed under the following authorities: dui lawyer riverside 

Alaska: Baker v. Fairbanks, 471 P.2d 386 (Alaska 1970). dui lawyer riverside 

Arizona: Rothweiler v. Superior Ct., 100 Ariz. 37, 410 P.2d 479 (1966). dui lawyer riverside 

California: Mills v. Municipal Ct., 10 Cal.3d 288, 110 Cal.Rptr. 329, 515 P.2d 273 (1973); Cal.Const. art. 1, § 16; Cal.Penal Code § 689; Cal.Veh.Code § 23120. dui lawyer riverside 

Hawaii: Baldwin v. New York, supra; State v. Shak, 51 Haw. 612, 466 P.2d 422, cert. denied, 400 U.S. 930, 91 S.Ct. 191, 27 L.Ed.2d 190 (1970) (applied to Hawaii Rev.Stat. § 291-4, which authorizes up to one year's imprisonment as sentence for DUI). dui lawyer riverside 

Idaho: Miller v. Winstead, 75 Idaho 262, 270 P.2d 1010 (1954) (held that under former law, defendant had right to jury trial de novo on appeal from municipal court judgment); Idaho Code §§ 19-1901, 19-1902, 49-1102, 49-1104. dui lawyer riverside 

Montana: Mont.Rev.Codes Ann. §§ 46-16-102, 46-17-201, 46-17-403. dui lawyer riverside 

Oregon: Brown v. Multnomah Cty. Dist. Ct., 280 Or. 95, 570 P.2d 52 (1977) (Oregon Constitution requires jury trial of DUI charge despite legislative effort to "decriminalize" first-offense DUI). dui lawyer riverside 

The present case does not raise the question whether a legislature may effectively "decriminalize" DUI, so that deprivation of a jury trial would not violate constitutional guarantees. dui lawyer riverside 

Washington: State v. Wicke, 91 Wash.2d 638, 591 P.2d 452 (1979). dui lawyer riverside 

A recent annotation shows only five states in the United States denying defendants the right to a jury trial on DUI charges. See Annot., 16 A.L.R.3d 1373 (1967 & 1980 Supp.) dui lawyer riverside 

[6] See Baldwin, supra, 399 U.S. at 74 n. 22, 90 S.Ct. at 1891 n. 22 (plurality opinion dui lawyer riverside 






480 F.3d 1072 (2007) dui lawyer riverside 

Steven M. BIRCOLL, Plaintiff-Appellant, dui lawyer riverside 
v.
MIAMI-DADE COUNTY, a political subdivision of the State of Florida, Defendant-Appellee. dui lawyer riverside 

No. 06-11098. dui lawyer riverside 

United States Court of Appeals, Eleventh Circuit. dui lawyer riverside 
 dui lawyer riverside 
March 7, 2007.

1073*1073 1074*1074 1075*1075 Jay M. Levy, Jay M. Levy, P.A., Miami, FL, for Plaintiff-Appellant.

Eric Alexander Hernandez, Miami, FL, for Defendant-Appellee. dui lawyer riverside 

Before TJOFLAT, HULL and BOWMAN,[*] Circuit Judges. dui lawyer riverside 

HULL, Circuit Judge: dui lawyer riverside 

This case arises out of Plaintiff-Appellant Steven M. Bircoll's DUI arrest. Bircoll, who is deaf, sued Defendant-Appellee Miami-Dade County, Florida ("Miami-Dade"), alleging that its law enforcement officers violated Title II of the Americans with Disabilities Act ("ADA") and the Rehabilitation Act by discriminating against him because of his disability. Specifically, Bircoll claims that the officers failed to reasonably modify their procedures in order to ensure effective communication with Bircoll. This case presents an issue of first impression in this circuit as to the applicability of the ADA and the Rehabilitation Act to police conduct during arrests. dui lawyer riverside 

I. FACTUAL BACKGROUND dui lawyer riverside 

We first discuss Bircoll's disability and the events during his arrest.[1]

A. Bircoll's Disability dui lawyer riverside 

Bircoll is a profoundly deaf individual with no hearing in his left ear and ten percent hearing in his right ear. When wearing his hearing aid, Bircoll has a twenty percent hearing capacity. dui lawyer riverside 

Bircoll, who has been deaf for most of his life, was raised in the hearing world. Bircoll graduated from a mainstream high school and attended two years of community college. Bircoll reads, writes, and speaks English. Although Bircoll sometimes relies on other people to speak for him and uses his friends and relatives for help, Bircoll's primary form of communication is lipreading. Bircoll has been lipreading for over thirty years. Bircoll does not know or use sign language. dui lawyer riverside 

Bircoll is more effective in reading lips if he is facing the speaker with good light and little background noise. Bircoll has greater success in communicating with speakers who do not have facial hair, make few facial expressions, and keep their hands away from their faces. When reading lips, Bircoll usually understands about fifty percent of what is said. Bircoll speaks with a speech impediment. dui lawyer riverside 

As for telephone communication, Bircoll usually communicates with an amplified telephone (one that is louder than a normal phone) and a teletypewriter, a telecommunication 1076*1076 device for the deaf ("TDD phone"). Bircoll also has a cell phone that he uses primarily for emergencies, such as calling someone to say he will be late. Bircoll cannot hear on the cell phone, but he will make the phone call, do the talking, and hang up.[2] dui lawyer riverside 

B. Traffic Stop dui lawyer riverside 

On April 6, 2001, Bircoll went to dinner around 9:00 p.m. with his then-girlfriend. He was wearing his hearing aid that evening. Bircoll testified that he had less than one drink, a 7-Up with whiskey. Bircoll did not finish his drink because his stomach was bothering him. Around midnight or 1:00 a.m. on April 7th, Bircoll argued with his girlfriend and drove her back to their shared home. Bircoll went into their house, argued with his girlfriend, and then left in his car. dui lawyer riverside 

After about an hour of driving south on I-75, Bircoll exited the interstate. He stopped at a gas station to ask for directions back to I-75. As he was leaving the gas station, Bircoll stopped and made a right turn out of a parking lot and arrived at an intersection with a flashing red light where he stopped again. Because trees and bushes were obstructing his view, Bircoll pulled into the intersection to see if there were any oncoming cars. When Bircoll saw that it was clear, he turned left. As Bircoll was trying to determine which ramp to take for I-75, he saw lights flashing in his mirror. Bircoll realized a police officer was pulling him over and stopped. dui lawyer riverside 

Sergeant Charles Trask, a police officer with the Miami-Dade County Police Department, was in his patrol car and observed Bircoll's car pull forward into the intersection, reverse because of an oncoming car, and then turn left. Trask pulled Bircoll over at approximately 3:00 a.m. on April 7, 2001. Trask stated that Bircoll failed to stop at both the right turn from the parking lot and at the flashing red light where Bircoll turned left. Trask noted that Bircoll delayed in pulling his vehicle over after Trask activated the overhead lights of his police car.

C. Field Sobriety Tests dui lawyer riverside 

As Trask approached Bircoll's car, Bircoll rolled down his window. When Trask tried to speak to him, Bircoll informed Trask that he was deaf and had a speech impediment. Either by virtue of his lipreading or hearing aid, or a combination of both, Bircoll was able to respond to Trask during the traffic stop. dui lawyer riverside 

Trask asked Bircoll how many drinks he had consumed that night. Bircoll responded that he had not been drinking. When Bircoll spoke, Trask realized that Bircoll had a speech impediment but also noticed that Bircoll responded to sound. dui lawyer riverside 

Trask told Bircoll to step out of his car, and Bircoll did. Trask asked Bircoll for his driver's license and registration, which Bircoll provided. Once Bircoll was out of the car, Trask realized that Bircoll smelled of alcohol and had red and watery eyes. Trask offered to communicate by fingerspelling in American Sign Language, but Bircoll responded that he did not understand sign language.[3] dui lawyer riverside 

1077*1077 Trask contends that he established face-to-face communication with Bircoll, that he spoke loudly, and that Bircoll spoke back in understandable English. Bircoll, however, states that he had difficulty understanding Trask, that there was "little lighting" and it was "almost dark,"[4] that Trask was standing five or six feet away, that Trask's heavy moustache obscured his mouth, and that Trask had to repeat himself "a lot of times." dui lawyer riverside 

Bircoll testified that Trask told him if Bircoll would do what Trask told him, Bircoll would be free to go. Trask began to administer field sobriety tests. According to Bircoll, when Trask began instructing him, Bircoll asked if Trask could "call somebody to help me out with this."[5] Trask did not do so, but instructed Bircoll to perform the tests. In his deposition, Bircoll admitted that he understood Trask was asking him to perform sobriety tests, but he did not understand why. dui lawyer riverside 

As to the first sobriety test, Trask instructed Bircoll on the Romberg balance exercise. In that test, the individual must keep his feet together, hold his arms by his side, tilt his head back, close his eyes, and count silently for thirty seconds. Trask gave Bircoll verbal instructions and a physical demonstration of the exercise. Trask testified that Bircoll passed this test. dui lawyer riverside 

Bircoll admits that he tried the Romberg balance test but contends that he did not complete this test. After he closed his eyes, Trask continued talking. Bircoll opened his eyes in order to read Trask's lips. When Trask ordered him to close his eyes, Bircoll stated that he needed to be able to see to read Trask's lips. Bircoll testified that he again suggested that they should get "a lawyer or somebody."[6] Bircoll also stated that Trask shined the flashlight in his eyes, that Trask had heavy facial hair, and that he had a hard time understanding Trask. Bircoll told Trask several times that he was deaf and could not hear. dui lawyer riverside 

As to the second test, Bircoll performed the one-leg stand exercise, standing on one leg for thirty seconds. Trask gave Bircoll verbal instructions and a physical demonstration of the exercise. Bircoll testified that he had no problems performing this test. Trask contends that Bircoll failed the test because he waved and raised his arms and shuffled his feet to maintain his balance. dui lawyer riverside 

As to the third test, Trask gave verbal instructions and demonstrated the walk-and-turn test. In that test, the individual must walk in a straight line, turn, and walk back in the same line. Bircoll understood the instructions and attempted to perform the test, but asked if he could remove his boots. Bircoll had trouble balancing because of his knee injury and his boots. According to Bircoll, after removing his 1078*1078 shoes, he had no trouble walking straight. Trask contends that Bircoll did not maintain his balance and failed the exercise. dui lawyer riverside 

As to the fourth test, Bircoll does not remember performing the finger-to-nose test, where the individual must tilt his head back, close his eyes, and touch his index finger to the tip of his nose. Bircoll denied that Trask ever asked him to do this, and testified that he did not complete any test that required him to close his eyes. Trask contends that he verbally instructed and demonstrated the test for Bircoll and that Bircoll failed the finger-to-nose test because he did not keep his eyes closed, missed the tip of his nose, and did not use the correct hand. dui lawyer riverside 

Around 3:30 a.m., or thirty minutes after the stop, Trask concluded that Bircoll was too impaired to drive and arrested him for driving under the influence. Trask told Bircoll he was under arrest for DUI, handcuffed Bircoll, and put him in the police car. According to Bircoll, Trask did not inform Bircoll that he was under arrest or read him his rights. After waiting for the tow truck for Bircoll's car, Trask and Bircoll arrived at the police station at 4:10 a.m. dui lawyer riverside 

D. Intoxilyzer Consent Form
 dui lawyer riverside 
Once Bircoll arrived at the police station, another police officer, Officer Everett Townsend, tried to communicate with him and obtain his consent to take an Intoxilyzer test. Bircoll told Townsend that he was deaf. Townsend sat down on Bircoll's left side about a foot away. Townsend had two copies of the Intoxilyzer consent form. Townsend read from one form and handed the other form to Bircoll to read. Bircoll acknowledges that Townsend handed him "a piece of paper" but denies that Townsend asked him to read it.[7] dui lawyer riverside 

The consent form advises a DUI arrestee that he will be offered a breath and/or urine test, and that if he refuses to take the test, his driver's license will be suspended, as follows: dui lawyer riverside 

You are under arrest for driving under the influence of alcohol and/or a chemical substance and/or a controlled substance. You will be offered a Breath Test for determining the alcohol content of you[r] breath and/or a Urine Test for detecting the presence of a chemical and/or controlled substance. Should you refuse to take either of the tests, the Department of Highway Safety and Motor Vehicles will suspend your privilege to operate a motor vehicle for a period of twelve (12) months. . . . Your refusal to submit to a breath and/or urine test upon request of a law enforcement official shall be admissible into evidence in any criminal proceeding. You may, at your own expense, have other Chemical or Physical Tests performed to determine the alcohol content of your blood or breath, or to detect the presence of a chemical and/or controlled substance.

Bircoll does not deny that Townsend read aloud the consent form twice. In fact, Bircoll states that he did not read the form himself because Townsend continued talking to Bircoll and Bircoll did not look away from Townsend's face and down at the 1079*1079 form he was given. However, Bircoll also states that because they were side by side and not facing each other, Bircoll had trouble understanding Townsend. Bircoll testified that Townsend "was talking towards the other way." dui lawyer riverside 

As Townsend read aloud the consent form for the first time, Bircoll asked if he could get his wallet, which contained a "Driver's Rights Card." This card states that any consent to a test is not voluntary, as follows: dui lawyer riverside 

In compliance with the requirements of Florida's Implied Consent Law I will consent to submit to tests of my breath, urine, blood or other bodily substances which you may designate, provided the test I am offered is properly done. . . . However, since I maintain that you do not have probable cause to make this request for a chemical test, my consent is given under protest and is no way voluntary. dui lawyer riverside 

Townsend stopped reading, photocopied the card, and wrote on the photocopy that Bircoll, upon being shown the consent language on the card, advised that his consent was not voluntary and he was "not consenting to anything." After copying the card, Townsend finished reading the consent form once and then read the form aloud a second time. dui lawyer riverside 

Bircoll claims that he requested an interpreter "many times" while he was at the police station. However, Townsend in his affidavit stated that "Bircoll never asked for an interpreter in my presence." Officer James Dooner was also there and stated that Bircoll never asked for an interpreter in his presence. dui lawyer riverside 

In addition, Townsend made notes on the two consent forms. On the first form, Townsend wrote "my copy I read from" and recorded that Bircoll said, "I hear you, but I don't understand the law. I understand what you said but I don't understand the law. I['m] not going to consent to anything." The notes on the back say that the consent form was read to Bircoll, that Bircoll was asked if he read English, and that Bircoll was given a consent form to read as well. dui lawyer riverside 

On the second form, Townsend wrote, "handed to defendant to read" and noted that he advised Bircoll that he would read aloud so that Bircoll could read his lips. The second form notes that Bircoll stated he would not sign anything. dui lawyer riverside 

Bircoll's version of the events differs materially. Bircoll denies that he ever said he understood what the police were saying but did not understand the law. Instead, Bircoll claims he told the officer that he did not understand what the officer was saying. Bircoll also denies saying that he would not consent to anything. Bircoll testified that he never refused to take the Intoxilyzer test and that the police never asked him to take it.

Townsend testified that "[a]lthough it is not usually the practice to give arrestees telephone calls at the Substation," he called Bircoll's girlfriend and informed her of Bircoll's situation. Bircoll's girlfriend stated in her deposition that she found out Bircoll had been arrested for DUI because "[t]he cops called me." dui lawyer riverside 

E. Jail dui lawyer riverside 

Around 9:15 a.m., Bircoll was transferred from the station to Turner Guilford Knight Correctional Facility ("TGK"). Pursuant to TGK's intake procedures, Bircoll's jail card, which contains information about Bircoll and his arrest, was affixed with an ADA stamp. dui lawyer riverside 

After he was fingerprinted and photographed, Bircoll was allowed to make phone calls. Bircoll pointed out to an officer that the phone was a pay phone and told him that he could not hear on a pay 1080*1080 phone. According to Bircoll, the officer replied that the pay phone was all that was available and that Bircoll could choose to use it or not. Bircoll then used a regular telephone by dialing his home number three or four times and screaming into it. He hoped that someone would listen to the messages on the answering machine and come get him. dui lawyer riverside 

Captain Greg Bennett of the Miami-Dade County Department of Corrections and Rehabilitation explained that under the standard operating procedures governing intake at TGK, a disabled arrestee who is unable to communicate will be provided with appropriate auxiliary aids, such as a TDD phone. Miami-Dade submitted evidence that three TDD phones were delivered to TGK on December 29, 2000. Bircoll testified, however, that he was never offered a TDD phone. dui lawyer riverside 

Bircoll was placed in a cell alone and separate from the other inmates. Bircoll was released at 2:16 p.m. the same day.[8] Bircoll's DUI charge was later nolle prossed. dui lawyer riverside 

II. PROCEDURAL HISTORY dui lawyer riverside 

On April 7, 2005, Bircoll filed this lawsuit alleging that: (1) Miami-Dade violated Title II of the ADA, 42 U.S.C. §§ 12131-12134, when it failed to provide him with an interpreter to assist him in communicating with police officers and denied him access to a TDD phone at the jail; and (2) Miami-Dade violated the Rehabilitation Act of 1973, 29 U.S.C. § 794, by discriminating against him when it denied him an interpreter, denied him a TDD phone, and placed him in solitary confinement.[9] Miami-Dade moved for summary judgment on these claims.[10] dui lawyer riverside 

As to the ADA claim, the district court noted that this Court has yet to address whether the ADA applies to a DUI arrest. See Bircoll v. Miami-Dade County, 410 F.Supp.2d 1280, 1283 (S.D.Fla.2006). The district court adopted the Fourth Circuit's approach in Rosen v. Montgomery County, 121 F.3d 154 (4th Cir.1997), and concluded that the ADA did not apply to police conduct during Bircoll's DUI arrest or at the station. Bircoll, 410 F.Supp.2d at 1283-84. The district court reasoned that the officers at the station "merely communicated the Breath Test consent form to Plaintiff and Plaintiff refused," and that "no `police investigative activities' ever took place." Id. at 1284-85. As to the Rehabilitation Act claim, the district court determined that a plaintiff who proceeds under a theory of inequal treatment must prove intentional discrimination or bad faith. Id. at 1286. The district court also noted that this Court has not addressed whether intentional discrimination in Rehabilitation Act claims can be proven by "deliberate indifference," but found that in any event Defendant's actions did not rise to the 1081*1081 level of intentional discrimination or deliberate indifference. Id.[11] dui lawyer riverside 

On appeal, Bircoll argues that the district court erred in concluding that Title II of the ADA did not apply to law enforcement activity during his DUI arrest on the roadside, at the police station, and at the jail. We first review the statutory language of Title II and relevant case law.[12]

III. TITLE II OF THE ADA dui lawyer riverside 

A. Statutory Language and Regulations dui lawyer riverside 

Congress enacted the ADA "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(1). Title II of the ADA prohibits a "public entity" from discriminating against "a qualified individual with a disability" on account of the individual's disability, as follows: dui lawyer riverside 
 dui lawyer riverside 
[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. dui lawyer riverside 

42 U.S.C. § 12132. Title II defines a "qualified individual with a disability" as "an individual with a disability who, with or without reasonable modifications . . . or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." 42 U.S.C. § 12131(2). The Supreme Court has instructed that a disabled prisoner can state a Title II-ADA claim if he is denied participation in an activity provided in state prison by reason of his disability. See Pa. Dep't of Corr. v. Yeskey, 524 U.S. 206, 211, 118 S.Ct. 1952, 1955, 141 L.Ed.2d 215 (1998). The words "eligibility" and "participation" in the statutory definition of a qualified individual with a disability "do not connote voluntariness" and do not require voluntariness on the part of an applicant who seeks a benefit from the state. Id. dui lawyer riverside 

Title II of the ADA also provides that "the Attorney General shall promulgate regulations" that implement Title II, Part A. 42 U.S.C. § 12134(a). The Department of Justice ("DOJ") has promulgated regulations implementing Title II's prohibition against discrimination. The DOJ's regulations provide that "[a] public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, 1082*1082 or activity." 28 C.F.R. § 35.130(b)(7).[13] dui lawyer riverside 

These same DOJ regulations also contain Subpart E, entitled "Communications," which provides that "[a] public entity shall take appropriate steps to ensure that communications with . . . members of the public with disabilities are as effective as communications with others." 28 C.F.R. § 35.160(a). These steps include furnishing "appropriate auxiliary aids and services" to afford a disabled individual equal opportunity to participate in an activity of the public entity, as follows: dui lawyer riverside 

A public entity shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity. dui lawyer riverside 

28 C.F.R. § 35.160(b)(1). The ADA defines "auxiliary aids and services" to include "qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments." 42 U.S.C. § 12102(1)(A). The DOJ regulations provide that "auxiliary aids and services" include, among other things, "[q]ualified interpreters" and "telecommunications devices for deaf persons (TDD's)." 28 C.F.R. § 35.104(1). Further, the Appendix to DOJ Regulation § 35.160 states that "[t]he public entity shall honor the [disabled individual's] choice [of auxiliary aid] unless it can demonstrate another effective means of communication exists or that use of the means chosen would not be required under § 35.164." 28 C.F.R. pt. 35, app. A; see also id. § 35.160(b)(2) ("In determining what type of auxiliary aid and service is necessary, a public entity shall give primary consideration to the requests of the individual with disabilities."). dui lawyer riverside 

The ADA's "reasonable modification" principle, however, does not require a public entity to employ any and all means to make auxiliary aids and services accessible to persons with disabilities, but only to make "reasonable modifications" that would not fundamentally alter the nature of the service or activity of the public entity or impose an undue burden. See Tennessee v. Lane, 541 U.S. 509, 531-32, 124 S.Ct. 1978, 1993-94, 158 L.Ed.2d 820 (2004) ("Title II does not require States to employ any and all means to make judicial services accessible to persons with disabilities. . . . It requires only `reasonable modifications' that would not fundamentally alter 1083*1083 the nature of the service provided. . . . [or] impose an undue financial or administrative burden."). dui lawyer riverside 

B. Circuit Law on Arrestees under the ADA
 dui lawyer riverside 
In order to state a Title II claim, a plaintiff generally must prove (1) that he is a qualified individual with a disability; (2) that he was either excluded from participation in or denied the benefits of a public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) that the exclusion, denial of benefit, or discrimination was by reason of the plaintiff's disability. See Shotz v. Cates, 256 F.3d 1077, 1079 (11th Cir.2001) (citing 42 U.S.C. § 12132). dui lawyer riverside 

The parties do not contest that Bircoll is a "qualified individual with a disability" under the first prong, or that Miami-Dade is a "public entity" under the second prong.[14] Rather, the dispute in this case is over whether Bircoll was excluded from participation in, or denied the benefit of, some "services, programs, or activities" of Miami-Dade by reason of his disability, or was "subjected to discrimination" by Miami-Dade by reason of his disability. 42 U.S.C. § 12132. dui lawyer riverside 

Relying heavily on the Fourth Circuit's decision in Rosen, in which a deaf person was arrested for DUI, Miami-Dade argues that arrests of deaf persons are not "services, programs, or activities" that fall within the parameters of the ADA. See Rosen, 121 F.3d at 157 ("[C]alling a drunk driving arrest a `program or activity' of the County, the `essential eligibility requirements' of which (in this case) are weaving in traffic and being intoxicated, strikes us as a stretch of the statutory language and of the underlying legislative intent."). In Rosen, the Fourth Circuit concluded that even "[i]f we assume, however, that the police were required [under the ADA] to provide auxiliary aids at some point in the process, that point certainly cannot be placed before the arrival at the stationhouse. The police do not have to get an interpreter before they can stop and shackle a fleeing bank robber, and they do not have to do so to stop a suspected drunk driver, conduct a field sobriety test, and make an arrest." Id. at 158.

In reply, Bircoll emphasizes that Rosen was decided before the Supreme Court's Yeskey decision, which concluded that a state prisoner has a cognizable ADA claim if he is denied participation in a required activity in prison by reason of his disability. Additionally, Bircoll relies on three other circuits' decisions indicating that arrestees may state cognizable ADA claims under Title II. See Hainze v. Richards, 207 F.3d 795 (5th Cir.2000); Gohier v. Enright, 186 F.3d 1216 (10th Cir.1999); Gorman v. Bartch, 152 F.3d 907 (8th Cir. 1998). However, none of these cases extends the ADA as far as Bircoll claims. dui lawyer riverside 

For example, in Hainze, the Fifth Circuit concluded that "Title II does not apply to an officer's on-the-street responses to reported disturbances or other similar incidents . . . prior to the officer's securing the scene and ensuring that there is no threat to human life." 207 F.3d at 801 (emphasis added). The police officers responded to a request to take a mentally ill individual, Hainze, to a hospital. Id. at 797. When they arrived at the scene, Hainze, with a knife in his hand, began to walk toward one of the officers. Id. In concluding that the ADA did not govern 1084*1084 the police officers' actions, the Fifth Circuit pointed out that officers "already face the onerous task of frequently having to instantaneously identify, assess, and react to potentially life-threatening situations." Id. at 801. The Fifth Circuit reasoned that requiring police officers called to the scene of a reported disturbance "to factor in whether their actions are going to comply with the ADA, in the presence of exigent circumstances and prior to securing the safety of themselves, other officers, and any nearby civilians, would pose an unnecessary risk to innocents." Id. dui lawyer riverside 

Nonetheless, the Fifth Circuit indicated that "[o]nce the area was secure and there was no threat to human safety . . . deputies would have been under a duty to reasonably accommodate Hainze's disability in handling and transporting him to a mental health facility." Id. at 802 (emphasis added).[15]
 dui lawyer riverside 
Likewise, the Eighth Circuit concluded that the ADA applies to police transportation of the arrestee from the scene to the police station. See Gorman, 152 F.3d at 912-13. In that case, the Eighth Circuit reasoned that "[t]ransportation of an arrestee to the station house is . . . a service of the police within the meaning of the ADA." Id. at 912. The Eighth Circuit decided that "the `benefit' [arrestee] Gorman sought . . . was to be handled and transported in a safe and appropriate manner consistent with his disability." Id. at 913 (citing 28 C.F.R. § 35.130(b)(1)). The Eighth Circuit ruled that "Gorman's allegations pass[ed] the threshold required to bring a case under the ADA and the Rehabilitation Act" and reversed the judgment for the defendants.[16] Id. dui lawyer riverside 

The Tenth Circuit also recognized the possibility that arrestees may be able to state an ADA claim based on police conduct during an arrest. Gohier, 186 F.3d at 1220-21. However, the Tenth Circuit ultimately left the theory of such a claim "an open question" in the circuit because the facts did not show a wrongful arrest based on a disability and the plaintiff made no claim that the police had failed to accommodate his disability during the arrest. Id. at 1221.[17]
 dui lawyer riverside 
We need not enter the circuits' debate about whether police conduct during an arrest is a program, service, or activity covered by the ADA. This is because Bircoll, in any event, could still attempt to show an ADA claim under the final clause in the Title II statute: that he was "subjected to discrimination" by a public entity, the police, by reason of his disability. See 42 U.S.C. § 12132. Indeed, this Court 1085*1085 already has explained that the final clause of § 12132 "protects qualified individuals with a disability from being `subjected to discrimination by any such entity,' and is not tied directly to the `services, programs, or activities' of the public entity." Bledsoe v. Palm Beach County Soil & Water Conservation Dist., 133 F.3d 816, 821-22 (11th Cir.1998) (quoting 42 U.S.C. § 12132). We said in Bledsoe that this final clause in Title II "`is a catch-all phrase that prohibits all discrimination by a public entity, regardless of the context.'" Id. at 822 (quoting Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 44-45 (2d Cir.1997), overruled on other grounds by Zervos v. Verizon N.Y., Inc., 252 F.3d 163 (2d Cir.2001)); see also Gohier, 186 F.3d at 1220 (noting that the magistrate judge "ignored the second basis for a Title II claim" and emphasizing the disjunctive language "or be subjected to discrimination" in the final clause of § 12132). dui lawyer riverside 

In this case, Bircoll identifies three separate points at which he contends Miami-Dade subjected him to discrimination by reason of his hearing disability: (1) the field sobriety tests on the roadside; (2) the consent warning and Intoxilyzer test at the police station; and (3) his incarceration at TGK. Specifically, Bircoll argues that he was entitled to effective communication with the police throughout his arrest; that he needed auxiliary aids, such as an oral interpreter, for effective communication during these tests; and that the police failed to make reasonable modifications to their procedures to ensure effective communication, thereby subjecting him to discrimination in violation of the ADA. dui lawyer riverside 

Bircoll claims that if he had been provided with auxiliary aids, he would have understood what the police were asking him to do, would have consented to and passed the Intoxilyzer test, and would not have lost his license or gone to jail. Even if he would have failed the Intoxilyzer test, Bircoll argues that he still was injured because with effective communication he would have consented to the Intoxilyzer test and would not have had his license automatically suspended. We examine each point at which Bircoll claims that he was denied effective communication and discriminated against because of his disability. dui lawyer riverside 

IV. FIELD SOBRIETY TESTS dui lawyer riverside 

We turn first to the field sobriety tests. As noted earlier, the Fifth Circuit in Hainze concluded that "Title II does not apply to an officer's on-the-street responses to reported disturbances or other similar incidents . . . prior to the officer's securing the scene and ensuring that there is no threat to human life." Hainze, 207 F.3d at 801 (emphasis added). In our view, the question is not so much one of the applicability of the ADA because Title II prohibits discrimination by a public entity by reason of Bircoll's disability. The exigent circumstances presented by criminal activity and the already onerous tasks of police on the scene go more to the reasonableness of the requested ADA modification than whether the ADA applies in the first instance. dui lawyer riverside 

In other words, the question is whether, given criminal activity and safety concerns, any modification of police procedures is reasonable before the police physically arrest a criminal suspect, secure the scene, and ensure that there is no threat to the public or officer's safety. The reasonable-modification inquiry in Title II-ADA cases is "a highly fact-specific inquiry." See Holbrook v. City of Alpharetta, 112 F.3d 1522, 1527 (11th Cir.1997) (stating, in a Title I-ADA reasonable accommodation case, that "what is reasonable for each individual employer is a highly fact-specific inquiry that will vary depending on the 1086*1086 circumstances and necessities of each employment situation"). We emphasize that terms like reasonable are relative to the particular circumstances of the case and the circumstances of a DUI arrest on the roadside are different from those of an office or school or even a police station. What is reasonable must be decided case-by-case based on numerous factors. dui lawyer riverside 

Here, Bircoll claims that he requested an interpreter, which Trask denies. Even assuming Bircoll asked for an oral interpreter,[18] we conclude that waiting for an oral interpreter before taking field sobriety tests is not a reasonable modification of police procedures given the exigent circumstances of a DUI stop on the side of a highway, the on-the-spot judgment required of police, and the serious public safety concerns in DUI criminal activity. In DUI stops, as opposed to minor traffic offenses, the danger to human life is high. To protect public safety, Trask had to determine quickly, on the roadside at 3:00 a.m., whether Bircoll was sober enough to drive his car further or whether to impound his car and arrest him. DUI stops involve a situation where time is of the essence. Forestalling all police activity at a roadside DUI stop until an oral interpreter arrives is not only impractical but also would jeopardize the police's ability to act in time to obtain an accurate measure of the driver's inebriation. Moreover, field sobriety exercises are short tests that can be physically and visually demonstrated. DUI stops do not involve lengthy communications and the suspect is not asked to give a written statement. In sum, field sobriety tests in DUI arrests involve exigencies that necessitate prompt action for the protection of the public and make the provision of an oral interpreter to a driver who speaks English and can read lips per se not reasonable. dui lawyer riverside 

We also reject Bircoll's alternative argument that once he told Trask of his deafness, Trask was required to accommodate his deafness by not asking him to perform any field sobriety tests and by immediately arresting him and taking him to the police station for the Intoxilyzer breath test. Bircoll's proposal, if anything, would force police to arrest deaf DUI suspects before even ascertaining if the suspect could communicate in some other way and understand the field sobriety tests. This would penalize deaf DUI suspects and not afford them the opportunity to perform the field tests and show their sobriety.
 dui lawyer riverside 
In any event, the actual communication between Trask and Bircoll was not so ineffective that an oral interpreter was necessary to guarantee that Bircoll was on equal footing with hearing individuals. See Kornblau v. Dade County, 86 F.3d 193, 194 (11th Cir.1996) ("The purpose of the [ADA] is to place those with disabilities on an equal footing, not to give them an unfair advantage."). Bircoll admits that he reads lips and usually understands fifty percent of what is said. In addition to verbal instructions, Trask gave physical demonstrations. During the traffic stop, Bircoll was able to respond to Trask's directions about getting out of the car and providing his driver's license and insurance. While the communication may not have been perfect, Bircoll, by his own admission, understood that he was being asked to perform field sobriety tests. Bircoll also admits he actually tried to perform at least three of those tests. For all of the foregoing reasons, we conclude that 1087*1087 Bircoll has failed to state an ADA claim regarding the field sobriety tests during his DUI arrest. dui lawyer riverside 

V. POLICE STATION dui lawyer riverside 

Once Bircoll was arrested and arrived at the police station at 4:10 a.m., the exigencies of the situation were greatly reduced. Nonetheless, time remained a factor in obtaining an Intoxilyzer test that accurately measured Bircoll's impairment, or lack thereof, while driving at 3:00 a.m. Townsend read the consent warning to Bircoll. Hearing individuals, even if impaired by alcohol, at least hear the consent warning, and Bircoll is entitled to be placed on equal footing with other arrestees at the police station. Thus, we conclude that at the police station, Townsend was required to take appropriate steps to ensure that his communication with Bircoll was as effective as with other individuals arrested for DUI.

What steps are reasonably necessary to establish effective communication with a hearing-impaired person after a DUI arrest and at a police station will depend on all the factual circumstances of the case, including, but not limited to: dui lawyer riverside 

(1) the abilities of, and the usual and preferred method of communication used by, the hearing-impaired arrestee; dui lawyer riverside 

(2) the nature of the criminal activity involved and the importance, complexity, context, and duration of the police communication at issue;

(3) the location of the communication and whether it is a one-on-one communication; and dui lawyer riverside 

(4) whether the arrestee's requested method of communication imposes an undue burden or fundamental change and whether another effective, but nonburdensome, method of communication exists. dui lawyer riverside 

In many circumstances, oral communication plus gestures and visual aids or note writing will achieve effective communication. In other circumstances, an interpreter will be needed. There is no bright-line rule, and the inquiry is highly fact-specific. Thus, we examine all factual circumstances to ascertain whether Townsend achieved effective communication with Bircoll. dui lawyer riverside 

As to his abilities and usual communication mode, Bircoll has a twenty percent hearing capacity when using his hearing aid and relies on lipreading to communicate. Bircoll can understand about half of what is said when he is lipreading. He can also read, write, and speak in English.

The police communication at issue — the consent warning — although important, is short and not complex. Moreover, even before that night, Bircoll already had some knowledge of what Townsend sought to communicate to him. In a deposition, when questioned about the Intoxilyzer test, Bircoll testified that "I know that if you fail the sobriety test, you have to do the breathalyzer test, yes." Bircoll also already knew that if he refused the Intoxilyzer, he would lose his license for a year.[19] dui lawyer riverside 

1088*1088 The communication at issue was one-on-one, with Townsend sitting next to Bircoll on a bench. Townsend read the consent form aloud to Bircoll twice. Townsend spoke to Bircoll in lighted conditions. Moreover, an effective, non-burdensome method of communication existed as to this short implied consent warning. Bircoll can read English, and Townsend gave him a copy of the form to read. Townsend thus accommodated Bircoll by giving him written material. Bircoll's own failure to read what Townsend provided him does not constitute discrimination.

We recognize that there are factual issues about whether Bircoll requested an interpreter "many times" at the station and whether Townsend was facing, or turning away from, Bircoll. Nonetheless, Bircoll admits that Townsend read the form aloud twice and gave him a copy. Even assuming the facts most favorable to Bircoll, we conclude that, under all the circumstances here and especially given Bircoll's admitted prior knowledge, Townsend established effective communication with Bircoll regarding the consent warning and Intoxilyzer test. Accordingly, Miami-Dade did not violate the ADA at the police station. dui lawyer riverside 

VI. TGK DETENTION

The corrections officers at TGK recognized Bircoll's hearing disability and affixed an ADA stamp to Bircoll's jail card. Miami-Dade does not deny that TGK has TDD phones available for disabled arrestees to use and that, under the ADA, it should accommodate Bircoll's hearing loss by making a TDD phone accessible at the jail. Instead, Miami-Dade asserts that even if Bircoll was denied access to a TDD phone, he cannot show he suffered any injury as a result.[20] dui lawyer riverside 

At the police station, Townsend agreed to place a phone call on Bircoll's behalf to his girlfriend. Townsend essentially acted as a relay operator for Bircoll and conveyed to Bircoll's girlfriend that Bircoll had been arrested and needed to be picked up. dui lawyer riverside 

Once at TGK, Bircoll used the regular phones to place several calls to his own home — where his girlfriend lived — and leave messages on his answering machine. Bircoll used the regular phones at TGK in the same way he regularly uses his cell phone: by making a phone call and doing the talking in hopes that his message will be received. When Bircoll was discharged, he was picked up by his girlfriend and another friend. His girlfriend successfully received the message that Bircoll had been arrested and picked him up when he was released. dui lawyer riverside 

Moreover, Bircoll does not identify whom he would have called from a TDD phone. Bircoll cites no adverse effects associated with his having to rely on the police at the station to make a phone call for him, or his own use of a regular phone at the jail. Because Bircoll has shown no injury, we affirm the grant of summary judgment for Miami-Dade on Bircoll's TDD claim.[21]
 dui lawyer riverside 
1089*1089 VII. CONCLUSION dui lawyer riverside 

For all of the foregoing reasons, we affirm the district court's order of January 17, 2006. dui lawyer riverside 

AFFIRMED.

[*] Honorable Pasco M. Bowman II, United States Circuit Judge for the Eighth Circuit, sitting by designation. dui lawyer riverside 

[1] We recite the facts in the light most favorable to Bircoll. See Vinyard v. Wilson, 311 F.3d 1340, 1343 n. 1 (11th Cir.2002). dui lawyer riverside 

[2] Bircoll as a teenager had a snowmobile accident that injured his legs. Because of that accident, one leg is shorter than the other. Bircoll has trouble balancing and standing for prolonged periods of time, cannot run, and sometimes limps when he walks. Bircoll's hearing impairment also affects his balance and causes dizziness. dui lawyer riverside 

[3] According to his depositions and affidavit, Trask knows the American Sign Language alphabet because he learned to use it fingerspelling with his developmentally delayed son. Bircoll's brief alleges that Trask spoke a made-up sign language, but Bircoll submitted no evidence to support this claim. dui lawyer riverside 

[4] Trask claims that he left his headlights on, and utility poles with lights were in the area. dui lawyer riverside 

[5] In his deposition, Bircoll was asked: dui lawyer riverside 

Q: Did you ask for an interpreter at that time? dui lawyer riverside 

A: As a matter of fact, I asked him to call somebody to help me out with this. dui lawyer riverside 

[6] In his deposition, Bircoll described this sobriety test as follows: dui lawyer riverside 

He told me close my eyes, put my head back, and then he was saying something, and I opened my eyes trying to listen to him. He said no, no, close your eyes, put your head back. I said, sir, I need to look at your face. I can't hear you when you are talking to me. dui lawyer riverside 

We did that a couple of times. He got animated and frustrated, and I knew there was a problem here. And then I told him maybe we should get a lawyer or somebody or at least call somebody because he was getting frustrated. dui lawyer riverside 

[7] Miami-Dade filed the deposition of Bircoll taken in a malpractice case that Bircoll filed against the attorney who represented him in his DUI case (the "malpractice deposition"). When questioned about the consent form (identified as Exhibit B) in the malpractice deposition, Bircoll admitted that the officer "handed me the piece of paper and I was trying to read it and he was trying to talk to me." When asked when the piece of paper was given to him, Bircoll said it was "[a]fter I was arrested" and "[a]t the police station." dui lawyer riverside 

In his deposition in this case, Bircoll stated that "I remember him handing me a piece of paper," but Bircoll denied that he was asked to read it.

[8] In Florida, a person arrested for DUI may not be released from custody: dui lawyer riverside 

(a) Until the person is no longer under the influence of alcoholic beverages . . . and affected to the extent that his or her normal faculties are impaired;

(b) Until the person's blood-alcohol level or breath-alcohol level is less than 0.05; or dui lawyer riverside 

(c) Until 8 hours have elapsed from the time the person was arrested. dui lawyer riverside 

Fla. Stat. § 316.193(9). dui lawyer riverside 

[9] Bircoll's complaint also contained a 42 U.S.C. § 1983 claim, but the district court granted Miami-Dade judgment on this count, and it is not involved in this appeal.

[10] Bircoll's complaint initially included the Miami-Dade County Police Department and the Miami-Dade County Department of Corrections and Rehabilitation as defendants. The complaint against the departments was dismissed because they are not legal entities subject to suit. The case proceeded against only Miami-Dade County. dui lawyer riverside 

[11] The district court also concluded that the police had probable cause to arrest Bircoll for DUI based on his erratic driving, red and watery eyes, and smell of alcohol; that the arrest was not based on Bircoll's disability; and that there was no causal connection between Bircoll's disability and the arrest made during the traffic stop. Bircoll, 410 F.Supp.2d at 1286. dui lawyer riverside 

In his brief on appeal, Bircoll does not advance a wrongful-arrest claim under the ADA but argues only a failure to accommodate his disability. At oral argument, Bircoll's lawyer acknowledged that Trask had probable cause to arrest Bircoll. Thus, we have no occasion to address whether a wrongful-arrest claim would be cognizable under the ADA. dui lawyer riverside 

[12] This Court reviews de novo the district court's grant of summary judgment, drawing all facts and inferences in the light most favorable to Bircoll. See Giddens v. Equitable Life Assurance Soc'y of the U.S., 445 F.3d 1286, 1292 n. 4 (11th Cir.2006). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Id. dui lawyer riverside 

[13] Title I, in its statutory text, notes that discrimination includes "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability." 42 U.S.C. § 12112(b)(5)(A). Title III, in its statutory text, notes that discrimination includes "a failure to make reasonable modifications in policies, practices, or procedures." 42 U.S.C. § 12182(b)(2)(A)(ii). There is no similar statutory language in Title II. dui lawyer riverside 

However, the DOJ regulations for Title II impose the requirement of "reasonable modifications" to procedures to avoid the discrimination prohibited by Title II. Compare 42 U.S.C. §§ 12111, 12112, and 42 U.S.C. § 12182, with 28 C.F.R. pt. 35. There is no claim in this case that the DOJ's Title II regulations go beyond the statutory authority of the ADA. In Olmstead v. L.C. ex rel. Zimring, the Supreme Court cited these same DOJ-Title II regulations, stating that "[w]e recite these regulations with the caveat that we do not here determine their validity." 527 U.S. 581, 592 119 S.Ct. 2176, 2183, 144 L.Ed.2d 540 (1999). The Supreme Court added, "we do not understand petitioners to challenge the regulatory formulations themselves as outside the congressional authorization." Id. Because Miami-Dade has not challenged the validity of the DOJ's regulations for Title II, we likewise interpret and apply the regulations but with the caveat that we do not here determine their validity. dui lawyer riverside 

[14] See Yeskey, 524 U.S. at 209-10, 118 S.Ct. at 1954-55 (quoting § 12131(1)(B) and concluding that state prisons "fall squarely within the statutory definition of `public entity,' which includes `any department, agency, special purpose district, or other instrumentality of a State or States or local government'"). dui lawyer riverside 

[15] Hainze was shot in the chest at the scene and transported by EMS, not the police. The Fifth Circuit's ultimate holding was that Hainze did not state a Title II claim against the police. See Hainze, 207 F.3d at 801. dui lawyer riverside 

[16] The Eighth Circuit remanded the case for development of the factual record, stating: dui lawyer riverside 

It remains to be determined whether Gorman can prove he was discriminated against or denied a benefit or service because of his disability or whether the defendants can show they made reasonable accommodations of his disability or if further accommodation would have been an undue burden. 29 U.S.C. § 794a(a)(1); 42 U.S.C. § 12133. dui lawyer riverside 

Gorman, 152 F.3d at 913. dui lawyer riverside 

[17] The Tenth Circuit described two potential theories of ADA-Title II liability: (1) "wrongful-arrest," where the police "wrongly arrested someone with a disability because they misperceived the effects of that disability as criminal activity"; and (2) "reasonable-accommodation-during-arrest," where the police properly investigate and arrest a person with a disability for a crime unrelated to that disability, but fail "to reasonably accommodate the person's disability in the course of investigation or arrest." Gohier, 186 F.3d at 1220-21; see supra note 11. dui lawyer riverside 

[18] Because Bircoll does not know sign language, we assume Bircoll wanted an oral interpreter trained to mouth words so that Bircoll could lip read accurately and to verbalize accurately Bircoll's messages based on his speech and mouth movements. dui lawyer riverside 

[19] In the malpractice deposition, Bircoll testified: dui lawyer riverside 

Q: You knew when you got a Florida driver's license, if you're stopped and suspected of drinking alcohol, that the officers will give you a breathalyzer test, and if you refuse it, you'll lose your license for a year?

A: I know that but, I don't take the test. I'll lose it. dui lawyer riverside 

Q: You were aware of that before you were stopped? dui lawyer riverside 

A: Yes. dui lawyer riverside 

[20] Bircoll's complaint also alleged a violation of the Rehabilitation Act for being placed in a cell alone and being held for "an inordinate and excessive amount of time." Miami-Dade responded that it provided preliminary protection to Bircoll by placing him in a cell separate from other inmates until it could be determined whether he could be held in an appropriate classification of the inmate general population. Because Bircoll did not argue these claims on appeal, we do not address them. See Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir.2005); Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n. 6 (11th Cir.1989). dui lawyer riverside 

[21] This Court may affirm on any ground supported by the record. See United States v. Mejia, 82 F.3d 1032, 1035 (11th Cir.1996). For the same reasons we affirm the district court's grant of summary judgment to Miami-Dade on Bircoll's ADA claims, we also affirm the summary judgment granted to Miami-Dade on Bircoll's Rehabilitation Act claims. See Cash v. Smith, 231 F.3d 1301, 1305 & n. 2 (11th Cir.2000) (stating that "[d]iscrimination claims under the Rehabilitation Act are governed by the same standards used in ADA cases," and "[c]ases decided under the Rehabilitation Act are precedent for cases under the ADA, and vice-versa"). dui lawyer riverside 




 dui lawyer riverside 
UNITED STATES
v.
NACHTIGAL

No. 92-609.

United States Supreme Court.Decided February 22, 1993.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

2*2 Per Curiam. dui lawyer riverside 

Respondent Jerry Nachtigal was charged with operating a motor vehicle in Yosemite National Park while under the influence of alcohol, in violation of 36 CFR §§ 4.23(a)(1) and (a)(2) (1992). Driving under the influence (DUI) is a class B misdemeanor and carries a maximum penalty of six months' imprisonment, § 1.3(a); 18 U. S. C. § 3581(b)(7), and a $5,000 fine, §§ 3571(b)(6) and (e). As an alternative to a term of imprisonment, the sentencing court may impose a term of probation not to exceed five years. §§ 3561(a)(3), (b)(2). The sentencing court has discretion to attach a host of discretionary conditions to the probationary term. § 3563(b). dui lawyer riverside 

Respondent moved for a jury trial. Applying our decision in Blanton v. North Las Vegas, 489 U. S. 538 (1989), the Magistrate Judge denied the motion. He reasoned that because DUI carries a maximum term of imprisonment of six months, it is presumptively a "petty" offense which is not embraced by the jury trial guaranty of the Sixth Amendment. He rejected respondent's contention that the additional penalties transformed DUI into a "serious" offense for Sixth Amendment purposes. Respondent was then tried by the Magistrate Judge and convicted of operating a motor vehicle under the influence of alcohol in violation of 36 CFR § 4.23(a)(1) (1992). He was fined $750 and placed on unsupervised probation for one year. dui lawyer riverside 

The District Court reversed the Magistrate Judge on the issue of entitlement to a jury trial, commenting that the language in our opinion in Blanton was "at variance with the Ninth Circuit precedent of United States v. Craner, [652 F. 2d 23 (1981)]," and electing to follow Craner because our opinion in Blanton did not "expressly overrule" Craner. App. to Pet. for Cert. 17a, 20a.
 dui lawyer riverside 
The Court of Appeals for the Ninth Circuit agreed with the District Court, holding that Blanton is "[in]apposite," that Craner controls, and that respondent is entitled to a jury trial. App. to Pet. for Cert. 3a-4a, judgt. order reported 3*3 at 953 F. 2d 1389 (1992). The Court of Appeals reasoned that since the Secretary of the Interior, and not Congress, set the maximum prison term at six months, "[t]here is no controlling legislative determination" regarding the seriousness of the offense. App. to Pet. for Cert. 4a; see also United States v. Craner, 652 F. 2d 23, 25 (CA9 1981). The court also found it significant that the Secretary of the Interior, in whom Congress vested general regulatory authority to fix six months as the maximum sentence for any regulatory offense dealing with the use and management of the national parks, monuments, or reservations, see 16 U. S. C. § 3, chose the harshest penalty available for DUI offenses. App. to Pet. for Cert. 3a-4a; see also Craner, supra, at 25. Finally, the court noted that seven of the nine States within the Ninth Circuit guarantee a jury trial for a DUI offense. App. to Pet. for Cert. 3a-4a; see also Craner, supra, at 27. dui lawyer riverside 

Unlike the Court of Appeals and the District Court, we think that this case is quite obviously controlled by our decision in Blanton. We therefore grant the United States' petition for certiorari and reverse the judgment of the Court of Appeals. The motion of respondent for leave to proceed in forma pauperis is granted. dui lawyer riverside 

In Blanton, we held that in order to determine whether the Sixth Amendment right to a jury trial attaches to a particular offense, the court must examine "objective indications of the seriousness with which society regards the offense." Blanton, 489 U. S., at 541 (internal quotation marks omitted). The best indicator of society's views is the maximum penalty set by the legislature. Ibid. While the word "penalty" refers both to the term of imprisonment and other statutory penalties, we stated that "[p]rimary emphasis . . . must be placed on the maximum authorized period of incarceration." Id., at 542. We therefore held that offenses for which the maximum period of incarceration is six months or less are presumptively "`petty.' " A defendant can overcome this presumption, and become entitled to a jury trial, 4*4 only by showing that the additional penalties, viewed together with the maximum prison term, are so severe that the legislature clearly determined that the offense is a "`serious' " one. Id., at 543. Finally, we expressly stated that the statutory penalties in other States are irrelevant to the question whether a particular legislature deemed a particular offense "`serious.' " Id., at 545, n. 11. dui lawyer riverside 

Applying the above rule, we held that DUI was a petty offense under Nevada law. Since the maximum prison term was six months, the presumption described above applied. We did not find it constitutionally significant that the defendant would automatically lose his license for up to 90 days, and would be required to attend, at his own expense, an alcohol abuse education course. Id., at 544, and n. 9. Nor did we believe that a $1,000 fine or an alternative sentence of 48 hours' co dui lawyer riverside mmunity service while wearing clothing identifying him as a DUI offender was more onerous than six months in jail. Id., at 544-545.

The present case, we think, requires only a relatively routine application of the rule announced in Blanton. Because the maximum term of imprisonment is six months, DUI under 36 CFR § 4.23(a)(1) (1992) is presumptively a petty offense to which no jury trial right attaches. The Court of Appeals refused to apply the Blanton presumption, reasoning that the Secretary of the Interior, and not Congress, ultimately determined the maximum prison term. But there is a controlling legislative determination present within the regulatory scheme. In 16 U. S. C. § 3, Congress set six months as the maximum penalty the Secretary could impose for a violation of any of his regulations. The Court of Appeals offered no persuasive reason why this congressional determination is stripped of its "legislative" character merely because the Secretary has final authority to decide, within the limits given by Congress, what the maximum prison sentence will be for a violation of a given regulation. dui lawyer riverside 

5*5 The additional penalties imposed under the regulations are not sufficiently severe to overcome this presumption. As we noted in Blanton, it is a rare case where "a legislature packs an offense it deems `serious' with onerous penalties that nonetheless do not puncture the 6-month incarceration line." Blanton, 489 U. S., at 543 (internal quotation marks omitted). Here, the federal DUI offense carries a maximum fine of $5,000, and respondent faced, as an alternative to incarceration, a maximum 5-year term of probation. While the maximum fine in this case is $4,000 greater than the one in Blanton, this monetary penalty "cannot approximate in severity the loss of liberty that a prison term entails." Id., at 542.

Nor do we believe that the probation alternative renders the DUI offense "serious."[*] Like a monetary penalty, the liberty infringement caused by a term of probation is far less intrusive than incarceration. Ibid. The discretionary probation conditions do not alter this conclusion; while they obviously entail a greater infringement on liberty than probation without attendant conditions, they do not approximate the severe loss of liberty caused by imprisonment for more than six months. dui lawyer riverside 

We hold that the Court of Appeals was wrong in refusing to recognize that this case was controlled by our opinion in Blanton rather than by its previous opinion in Craner. An individual convicted of driving under the influence in violation 6*6 of 36 CFR § 4.23(a)(1) (1992) is not constitutionally entitled to a jury trial. The petition of the United States for certiorari is accordingly granted, and the judgment of the Court of Appeals is reversed.
 dui lawyer riverside 
It is so ordered. dui lawyer riverside 

[*] There are 21 discretionary conditions which the sentencing court may impose upon a defendant. Under 18 U. S. C. § 3563(b),a court may require, among other things, that the defendant (1) pay restitution; (2) take part in a drug and alcohol dependency program offered by an institution, and if necessary, reside at the institution; (3) remain in the custody of the Bureau of Prisons during nights and weekends for a period not exceeding the term of imprisonment; (4) reside at or participate in a program of a community correctional facility for all or part of the probationary term; or (5) remain at his place of residence during nonworking hours, and, if necessary, this condition may be monitored by telephonic or electronic devices. §§ 3563(b)(3), (b)(10), (b)(11), (b)(12), (b)(20).
 dui lawyer riverside 





511 U.S. 738 (1994)
 dui lawyer riverside 
NICHOLS
v.
UNITED STATES dui lawyer riverside 

No. 92-8556.

United States Supreme Court.Argued January 10, 1994.
Decided June 6, 1994.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

739*739 Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, and Thomas, JJ., joined. Souter, J., filed an opinion concurring in the judgment, post, p. 749. Blackmun, J., filed a dissenting opinion, in which Stevens and Ginsburg, JJ., joined, post, p. 754. Ginsburg, J., filed a dissenting opinion, post, p. 765. dui lawyer riverside 

William B. Mitchell Carter, by appointment of the Court, 510 U. S. 942, argued the cause for petitioner. With him on the briefs was Mary Julia Foreman.
 dui lawyer riverside 
Deputy Solicitor General Bryson argued the cause for the United States. With him on the brief were Solicitor General Days, Assistant Attorney General Harris, Michael R. Dreeben, and Thomas E. Booth.[*] dui lawyer riverside 

740*740 Chief Justice Rehnquist delivered the opinion of the Court.
 dui lawyer riverside 
In this case, we return to the issue that splintered the Court in Baldasar v. Illinois, 446 U. S. 222 (1980): Whether the Constitution prohibits a sentencing court from considering a defendant's previous uncounseled misdemeanor conviction in sentencing him for a subsequent offense.

In 1990, petitioner Nichols pleaded guilty to conspiracy to possess cocaine with intent to distribute, in violation of 21 U. S. C. § 846. Pursuant to the United States Sentencing Commission's Guidelines (Sentencing Guidelines), petitioner was assessed three criminal history points for a 1983 federal felony drug conviction. An additional criminal history point was assessed for petitioner's 1983 state misdemeanor conviction for driving under the influence (DUI), for which petitioner was fined $250 but was not incarcerated.[1] This additional criminal history point increased petitioner's Criminal History Category from Category II to Category III.[2] As a result, petitioner's sentencing range under the Sentencing Guidelines increased from 168-210 months (under Criminal History Category II) to 188-235 months (under Category III).[3] dui lawyer riverside 

741*741 Petitioner objected to the inclusion of his DUI misdemeanor conviction in his criminal history score because he was not represented by counsel at that proceeding. He maintained that consideration of that uncounseled misdemeanor conviction in establishing his sentence would violate the Sixth Amendment as construed in Baldasar, supra. The United States District Court for the Eastern District of Tennessee found that petitioner's misdemeanor conviction was uncounseled and that, based on the record before it, petitioner had not waived his right to counsel.[4] 763 F. Supp. 277 (1991). But the District Court rejected petitioner's Baldasar argument, explaining that in the absence of a majority opinion, Baldasar "stands only for the proposition that a prior uncounseled misdemeanor conviction may not be used to create a felony with a prison term." 763 F. Supp., at 279. Because petitioner's offense was already defined as a felony, the District Court ruled that Baldasar was inapplicable to the facts of this case; thus, petitioner's constitutional rights were not violated by using his 1983 DUI conviction to enhance his sentence.[5] It sentenced petitioner to the maximum term allowed by the Sentencing Guidelines under its interpretation of Baldasar, a term 25 months longer than if the misdemeanor conviction had not been considered in calculating petitioner's criminal history score. dui lawyer riverside 

742*742 A divided panel of the Court of Appeals for the Sixth Circuit affirmed. 979 F. 2d 402 (1992). After reviewing the fractured decision in Baldasar and the opinions from other Courts of Appeals that had considered the issue, the court held that Baldasar limits the collateral use at sentencing of a prior uncounseled misdemeanor conviction only when the effect of such consideration is to convert a misdemeanor into a felony.[6] The dissent, while recognizing that "numerous courts have questioned whether [Baldasar] expresses any single holding, and, accordingly, have largely limited Baldasar to its facts," nevertheless concluded that Baldasar proscribed the use of petitioner's prior uncounseled DUI conviction to enhance his sentence under the Sentencing Guidelines. 979 F. 2d, at 407-408 (citations omitted). dui lawyer riverside 

We granted certiorari, 509 U. S. 953 (1993), to address this important question of Sixth Amendment law, and to thereby resolve a conflict among state courts[7] as well as Federal Courts of Appeals.[8] We now affirm. dui lawyer riverside 

743*743 In Scott v. Illinois, 440 U. S. 367 (1979), we held that where no sentence of imprisonment was imposed, a defendant charged with a misdemeanor had no constitutional right to counsel.[9] Our decision in Scott was dictated by Argersinger v. Hamlin, 407 U. S. 25 (1972), but we stated that "[e]ven were the matter res nova, we believe that the central premise of Argersinger —that actual imprisonment is a penalty different in kind from fines or the mere threat of imprisonment—is eminently sound and warrants adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel." Scott, supra, at 373. dui lawyer riverside 

One year later, in Baldasar v. Illinois, 446 U. S. 222 (1980), a majority of the Court held that a prior uncounseled misdemeanor conviction, constitutional under Scott, could nevertheless not be collaterally used to convert a second misdemeanor conviction into a felony under the applicable Illinois sentencing enhancement statute. The per curiam opinion in Baldasar provided no rationale for the result; instead, it referred to the "reasons stated in the concurring opinions." 744*744 446 U. S., at 224. There were three different opinions supporting the result. Justice Stewart, who was joined by Justices Brennan and Stevens, stated simply that the defendant "was sentenced to an increased term of imprisonment only because he had been convicted in a previous prosecution in which he had not had the assistance of appointed counsel in his defense," and that "this prison sentence violated the constitutional rule of Scott . . .." Ibid. Justice Marshall, who was also joined by Justices Brennan and Stevens, rested his opinion on the proposition that an uncounseled misdemeanor conviction is "not sufficiently reliable" to support imprisonment under Argersinger, and that it "does not become more reliable merely because the accused has been validly convicted of a subsequent offense." 446 U. S., at 227-228. Justice Blackmun, who provided the fifth vote, advanced the same rationale expressed in his dissent in Scott —that the Constitution requires appointment of counsel for an indigent defendant whenever he is charged with a "nonpetty" offense (an offense punishable by more than six months' imprisonment) or when the defendant is actually sentenced to imprisonment. 446 U. S., at 229-230. Under this rationale, Baldasar's prior misdemeanor conviction was invalid and could not be used for enhancement purposes because the initial misdemeanor was punishable by a prison term of more than six months. dui lawyer riverside 

Justice Powell authored the dissent, in which the remaining three Members of the Court joined. The dissent criticized the majority's holding as one that "undermines the rationale of Scott and Argersinger and leaves no coherent rationale in its place." Id., at 231. The dissent opined that the majority's result misapprehended the nature of enhancement statutes that "do not alter or enlarge a prior sentence," ignored the significance of the constitutional validity of the first conviction under Scott, and created a "hybrid" conviction, good for the punishment actually imposed but not available for sentence enhancement in a later prosecution. 745*745 446 U. S., at 232-233. Finally—and quite presciently—the dissent predicted that the Court's decision would create confusion in the lower courts. Id., at 234. dui lawyer riverside 

In Marks v. United States, 430 U. S. 188 (1977), we stated that "[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, `the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds . . . .' " Id., at 193, quoting Gregg v. Georgia, 428 U. S. 153, 169, n. 15 (1976). This test is more easily stated than applied to the various opinions supporting the result in Baldasar. A number of Courts of Appeals have decided that there is no lowest common denominator or "narrowest grounds" that represents the Court's holding. See, e. g., United States v. Castro-Vega, 945 F. 2d 496, 499-500 (CA2 1991); United States v. Eckford, 910 F. 2d 216, 219, n. 8 (CA5 1990); Schindler v. Clerk of Circuit Court, 715 F. 2d 341, 345 (CA7 1983), cert. denied, 465 U. S. 1068 (1984). Another Court of Appeals has concluded that the holding in Baldasar is Justice Blackmun's rationale, Santillanes v. United States Parole Comm'n, 754 F. 2d 887, 889 (CA10 1985); yet another has concluded that the "consensus" of the Baldasar concurrences is roughly that expressed by Justice Marshall's concurring opinion. United States v. Williams, 891 F. 2d 212, 214 (CA9 1989). State courts have similarly divided.[10] The Sentencing Guidelines have also reflected uncertainty over Baldasar.[11] We think it not useful 746*746 to pursue the Marks inquiry to the utmost logical possibility when it has so obviously baffled and divided the lower courts that have considered it. This degree of confusion following a splintered decision such as Baldasar is itself a reason for reexamining that decision. Payne v. Tennessee, 501 U. S. 808, 829-830 (1991); Miller v. California, 413 U. S. 15, 24-25 (1973). dui lawyer riverside 

Five Members of the Court in Baldasar —the four dissenters and Justice Stewart—expressed continued adherence to Scott v. Illinois, 440 U. S. 367 (1979). There the defendant was convicted of shoplifting under a criminal statute which provided that the penalty for the offense should be a fine of not more than $500, a term of not more than one year in jail, or both. The defendant was in fact fined $50, but he contended that since imprisonment for the offense was authorized by statute, the Sixth and Fourteenth Amendments to the United States Constitution required Illinois to provide trial counsel. We rejected that contention, holding that so long as no imprisonment was actually imposed, the Sixth Amendment right to counsel did not obtain. Id., at 373-374. We reasoned that the Court, in a number of decisions, had already expanded the language of the Sixth Amendment well beyond its obvious meaning, and that the line should be drawn between criminal proceedings that resulted in imprisonment, and those that did not. Id., at 372. dui lawyer riverside 

We adhere to that holding today, but agree with the dissent in Baldasar that a logical consequence of the holding is that an uncounseled conviction valid under Scott may be relied 747*747 upon to enhance the sentence for a subsequent offense, even though that sentence entails imprisonment. Enhancement statutes, whether in the nature of criminal history provisions such as those contained in the Sentencing Guidelines, or recidivist statutes that are commonplace in state criminal laws, do not change the penalty imposed for the earlier conviction. As pointed out in the dissenting opinion in Baldasar, "[t]his Court consistently has sustained repeat-offender laws as penalizing only the last offense committed by the defendant. E. g., Moore v. Missouri, 159 U. S. 673, 677 (1895); Oyler v. Boles, 368 U. S. 448, 451 (1962)." 446 U. S., at 232. dui lawyer riverside 

Reliance on such a conviction is also consistent with the traditional understanding of the sentencing process, which we have often recognized as less exacting than the process of establishing guilt. As a general proposition, a sentencing judge "may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come." United States v. Tucker, 404 U. S. 443, 446 (1972). "Traditionally, sentencing judges have considered a wide variety of factors in addition to evidence bearing on guilt in determining what sentence to impose on a convicted defendant." Wisconsin v. Mitchell, 508 U. S. 476, 485 (1993). One such important factor, as recognized by state recidivism statutes and the criminal history component of the Sentencing Guidelines, is a defendant's prior convictions. Sentencing courts have not only taken into consideration a defendant's prior convictions, but have also considered a defendant's past criminal behavior, even if no conviction resulted from that behavior. We have upheld the constitutionality of considering such previous conduct in Williams v. New York, 337 U. S. 241 (1949). We have also upheld the consideration of such conduct, in connection with the offense presently charged, in McMillan v. Pennsylvania, 477 U. S. 79 (1986). There we held that 748*748 the state could consider, as a sentence enhancement factor, visible possession of a firearm during the felonies of which defendant was found guilty. dui lawyer riverside 

Thus, consistently with due process, petitioner in the present case could have been sentenced more severely based simply on evidence of the underlying conduct that gave rise to the previous DUI offense. And the state need prove such conduct only by a preponderance of the evidence. Id., at 91. Surely, then, it must be constitutionally permissible to consider a prior uncounseled misdemeanor conviction based on the same conduct where that conduct must be proved beyond a reasonable doubt. dui lawyer riverside 
 dui lawyer riverside 
Petitioner contends that, at a minimum, due process requires a misdemeanor defendant to be warned that his conviction might be used for enhancement purposes should the defendant later be convicted of another crime. No such requirement was suggested in Scott, and we believe with good reason. In the first place, a large number of misdemeanor convictions take place in police or justice courts which are not courts of record. Without a drastic change in the procedures of these courts, there would be no way to memorialize any such warning. Nor is it at all clear exactly how expansive the warning would have to be; would a Georgia court have to warn the defendant about permutations and commutations of recidivist statutes in 49 other States, as well as the criminal history provision of the Sentencing Guidelines applicable in federal courts? And a warning at the completely general level—that if he is brought back into court on another criminal charge, a defendant such as Nichols will be treated more harshly—would merely tell him what he must surely already know. dui lawyer riverside 

Today we adhere to Scott v. Illinois, supra, and overrule Baldasar.[12] Accordingly we hold, consistent with the Sixth 749*749 and Fourteenth Amendments of the Constitution, that an uncounseled misdemeanor conviction, valid under Scott because no prison term was imposed, is also valid when used to enhance punishment at a subsequent conviction.

The judgment of the Court of Appeals is therefore Affirmed. dui lawyer riverside 

Justice Souter, concurring in the judgment. dui lawyer riverside 

I write separately because I do not share the Court's view that Baldasar v. Illinois, 446 U. S. 222 (1980), has a holding that can be "overrule[d]," ante, at 748, and because I wish to be clear about the narrow ground on which I think this case is properly decided. Baldasar is an unusual case, not because no single opinion enlisted a majority, but because no common ground united any five Justices. As I read the various opinions, eight Members of the Baldasar Court divided, four to four, over whether an uncounseled misdemeanor conviction that is valid because no prison sentence was imposed, see Scott v. Illinois, 440 U. S. 367 (1979), may be used for automatic enhancement of the prison sentence attached to a subsequent conviction. See Baldasar, 446 U. S., at 224 (Stewart, J., joined by Brennan and Stevens, JJ., concurring); id., at 224-229 (Marshall, J., joined by Brennan and Stevens, JJ., concurring); id., at 230-235 (Powell, J., joined by Burger, C. J., and White and Rehnquist, JJ., dissenting). 750*750 Instead of breaking the tie, the ninth Justice, Justice Blackmun, declined to accept the premise on which the others proceeded (that the prior uncounseled conviction was valid under Scott ), adhering to his earlier position that an uncounseled conviction of the sort involved in Baldasar was not valid for any purpose. See 446 U. S., at 229-230 (Blackmun, J., concurring) (discussing Scott, supra, at 389-390 (Blackmun, J., dissenting)). Significantly for present purposes, Justice Blackmun gave no indication of his view on whether an uncounseled conviction, if valid under Scott, could subsequently be used for automatic sentence enhancement. On the question addressed by the other eight Justices, then, the Baldasar Court was in equipoise, leaving a decision in the same posture as an affirmance by an equally divided Court, entitled to no precedential value, see United States v. Pink, 315 U. S. 203, 216 (1942). Cf. Waters v. Churchill, ante, p. 661; ante, at 685 (Souter, J., concurring); Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Mass., 383 U. S. 413 (1966) (discussed in Marks v. United States, 430 U. S. 188, 193-194 (1977)). dui lawyer riverside 

Setting Baldasar aside as controlling precedent (but retaining the case's even split as evidence), it seems safe to say that the question debated there is a difficult one. The Court in Scott, relying on Argersinger v. Hamlin, 407 U. S. 25 (1972), drew a bright line between imprisonment and lesser criminal penalties, on the theory, as I understand it, that the concern over reliability raised by the absence of counsel is tolerable when a defendant does not face the deprivation of his liberty. See Scott, supra, at 372-373; see also Argersinger, supra, at 34-37 (discussing studies showing that "the volume of misdemeanor cases . . . may create an obsession for speedy dispositions, regardless of the fairness of the result") (footnote omitted). There is an obvious and serious argument that the line drawn in Scott is crossed when, as Justice 751*751 Stewart put it in Baldasar, a defendant is "sentenced to an increased term of imprisonment only because he had been convicted in a previous prosecution in which he had not had the assistance of appointed counsel in his defense." 446 U. S., at 224 (concurring opinion) (emphasis in original); see also id., at 227 (Marshall, J., concurring) (petitioner's prison sentence "was imposed as a direct consequence of [the previous] uncounseled conviction and is therefore forbidden under Scott and Argersinger "). dui lawyer riverside  dui lawyer riverside 

Fortunately, the difficult constitutional question that argument raises need not be answered in deciding this case, cf. Ashwander v. TVA, 297 U. S. 288, 346-347 (1936) (Brandeis, J., concurring), for unlike the sentence-enhancement scheme involved in Baldasar, the United States Sentencing Commission's Guidelines (Guidelines) do not provide for automatic enhancement based on prior uncounseled convictions. Prior convictions, as the Court explains, serve under the Guidelines to place the defendant in one of six "criminal history" categories; the greater the number of prior convictions, the higher the category. See ante, at 740, and n. 2. But the Guidelines seek to punish those who exhibit a pattern of "criminal conduct," not a pattern of prior convictions as such, see United States Sentencing Commission, Guidelines Manual (USSG) ch. 4, pt. A (Nov. 1993) (intro. comment.), and accordingly do not bind a district court to the category into which simple addition places the defendant. Thus, while the Guidelines require that "uncounseled misdemeanor sentences where imprisonment was not imposed" are "to be counted in the criminal history score," USSG App. C, amdt. 353 (Nov. 1993), they also expressly empower the district court to depart from the range of sentences prescribed for a criminalhistory category that inaccurately captures the defendant's actual history of criminal conduct. See id., § 4A1.3. In particular, the Guidelines authorize downward departure "where the court concludes that a defendant's criminal history 752*752 category significantly over-represents the seriousness of a defendant's criminal history or the likelihood that the defendant will commit further crimes." Ibid.[*]

Under the Guidelines, then, the role prior convictions play in sentencing is presumptive, not conclusive, and a defendant has the chance to convince the sentencing court of the unreliability of any prior valid but uncounseled convictions in reflecting the seriousness of his past criminal conduct or predicting the likelihood of recidivism. A defendant may show, for example, that his prior conviction resulted from railroading an unsophisticated indigent, from a frugal preference for a low fine with no counsel fee, or from a desire to put the matter behind him instead of investing the time to fight the charges. dui lawyer riverside 

Because the Guidelines allow a defendant to rebut the negative implication to which a prior uncounseled conviction gives rise, they do not ignore the risk of unreliability associated with such a conviction. Moreover, as the Court observes, permitting a court to consider (in contrast to giving conclusive weight to) a prior uncounseled conviction is "consistent with the traditional understanding of the sentencing process," under which a "judge `may appropriately conduct an inquiry broad in scope, largely unlimited either as to the 753*753 kind of information he may consider, or the source from which it may come,' " at least as long as the defendant is given a reasonable opportunity to disprove the accuracy of information on which the judge may rely, and to contest the relevancy of that information to sentencing. Ante, at 747 (quoting United States v. Tucker, 404 U. S. 443, 446 (1972)). Where concern for reliability is accommodated, as it is under the Guidelines, nothing in the Sixth Amendment or our cases requires a sentencing court to ignore the fact of a valid uncounseled conviction, even if that conviction is a less confident indicator of guilt than a counseled one would be. Cf. United States Sentencing Commission, Sentencing Guidelines for United States Courts, 55 Fed. Reg. 5741 (1990) (explaining that valid, uncounseled convictions should be counted in determining a defendant's criminal history category because the alternative would "deprive the [sentencing] court of significant information relevant to the purposes of sentencing"). dui lawyer riverside 

I therefore agree with the Court that it is "constitutionally permissible" for a federal court to "consider a prior uncounseled misdemeanor conviction" in sentencing a defendant under the Guidelines. Ante, at 748. That is enough to answer the constitutional question this case presents, whether "[t]he District Court should . . . have considered [petitioner's] previous uncounseled misdemeanor in computing [his] criminal history score" under the Guidelines. Pet. for Cert. i; see also Brief for United States I (stating question presented as "[w]hether it violated the Constitution for the sentencing court to consider petitioner's prior uncounseled misdemeanor conviction in determining his criminal history score under the Sentencing Guidelines"). And because petitioner did not below, and does not here, contend that counting his 1983 uncounseled conviction for driving under the influence placed him in a criminal-history category that "significantly overrepresents the seriousness of [his] criminal history or the likelihood that [he] will commit further crimes," USSG 754*754 § 4A1.3, the Court properly rejects petitioner's challenge to his sentence.

I am shy, however, of endorsing language in the Court's opinion that may be taken as addressing the constitutional validity of a sentencing scheme that automatically requires enhancement for prior uncounseled convictions, a scheme not now before us. Because I prefer not to risk offending the principle that "[t]he Court will not `anticipate a question of constitutional law in advance of the necessity of deciding it,' " Ashwander, 297 U. S., at 346 (citation omitted), I concur only in the judgment. dui lawyer riverside 

Justice Blackmun, with whom Justice Stevens and Justice Ginsburg join, dissenting. dui lawyer riverside 

In 1983, petitioner Kenneth O. Nichols pleaded nolo contendere to driving under the influence of alcohol (DUI) and paid a $250 fine. He was not represented by counsel. Under Scott v. Illinois, 440 U. S. 367 (1979), this uncounseled misdemeanor could not have been used as the basis for any incarceration, not even a 1-day jail sentence. Seven years later, when Nichols pleaded guilty to a federal drug charge, this uncounseled misdemeanor, used to enhance his sentence, led directly to his imprisonment for over two years. The majority's holding that this enhancement does not violate the Sixth Amendment is neither compelled by Scott nor faithful to the concern for reliability that lies at the heart of our Sixth Amendment cases since Gideon v. Wainwright, 372 U. S. 335 (1963). Accordingly, I dissent. dui lawyer riverside 

I

The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." In Gideon v. Wainwright, this Court recognized the "Sixth Amendment's guarantee of counsel" as "`fundamental and essential to a fair trial,' " id., at 342, because "`[e]ven the intelligent and educated layman 755*755. . .requires the guiding hand of counsel at every step in the proceedings against him,' " id., at 345, quoting Powell v. Alabama, 287 U. S. 45, 69 (1932). dui lawyer riverside 

Both the plain wording of the Amendment and the reasoning in Gideon would support the guarantee of counsel in "all" criminal prosecutions, petty or serious, whatever their consequences. See Scott v. Illinois, 440 U. S., at 376, 379 (Brennan, J., dissenting). Although the Court never has read the guarantee of counsel that broadly, one principle has been clear, at least until today: No imprisonment may be imposed on the basis of an uncounseled conviction. Thus, in Argersinger v. Hamlin, 407 U. S. 25 (1972), the Court rejected a formalistic distinction between petty and non-petty offenses and applied Gideon to "any criminal trial, where an accused is deprived of his liberty." Id., at 32; id., at 41, 42 (Burger, C. J., concurring in result) (because "any deprivation of liberty is a serious matter," no individual "can be imprisoned unless he is represented by counsel"). dui lawyer riverside 

A year later, Scott confirmed that any deprivation of liberty, no matter how brief, triggers the Sixth Amendment's right to counsel: dui lawyer riverside 

"Even were the matter res nova, we believe that the central premise of Argersinger —that actual imprisonment is a penalty different in kind from fines or the mere threat of imprisonment—is eminently sound and warrants adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel. . . . We therefore hold that the Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense." 440 U. S., at 373-374. dui lawyer riverside 

Finally, although the Court, in Baldasar v. Illinois, 446 U. S. 222 (1980), in one sense, was "splintered," ante, at 740, a 756*756 majority of the Court concluded that an uncounseled conviction could not be used to support a prison term, either initially, to punish the misdemeanor, or later, to lengthen the jail time for a subsequent conviction. See Baldasar, 446 U. S., at 224 (Stewart, J., concurring) (sentencing an indigent "to an increased term of imprisonment only because he had been convicted in a previous prosecution in which he had not had the assistance of appointed counsel in his defense" violated Scott ); 446 U. S., at 226 (Marshall, J., concurring) (even on Scott `s terms, a "prior uncounseled misdemeanor conviction could not be used collaterally to impose an increased term of imprisonment upon a subsequent conviction"); 446 U. S., at 230 (Blackmun, J., concurring) (adhering to dissenting position in Scott that an uncounseled conviction is invalid not only where the defendant is sentenced to any actual incarceration but also where the defendant is convicted of an offense punishable by more than six months in prison).[1]

757*757 Thus, the animating concern in the Court's Sixth Amendment jurisprudence has been to ensure that no indigent is deprived of his liberty as a result of a proceeding in which he lacked the guiding hand of counsel. While the Court has grappled with, and sometimes divided over, extending this constitutional guarantee beyond convictions that lead to actual incarceration, it has never permitted, before now, an uncounseled conviction to serve as the basis for any jail time. dui lawyer riverside 

II

Although the Court now expressly overrules Baldasar v. Illinois, ante, at 748, it purports to adhere to Scott, describing its holding as a "logical consequence" of Scott, ante, at 746. This logic is not unassailable. To the contrary, as Justice Marshall stated in Baldasar, "a rule that held a conviction invalid for imposing a prison term directly, but valid for imposing a prison term collaterally, would be an illogical and unworkable deviation from our previous cases." 446 U. S., at 228-229 (concurring opinion). It is more logical, and more consistent with the reasoning in Scott, to hold that a conviction that is invalid for imposing a sentence for the offense itself remains invalid for increasing the term of imprisonment imposed for a subsequent conviction. dui lawyer riverside 

The Court skirts Scott `s actual imprisonment standard by asserting that enhancement statutes "do not change the penalty imposed for the earlier conviction," ante, at 747, because they punish only the later offense. Although it is undeniable that recidivist statutes do not impose a second punishment for the first offense in violation of the Double Jeopardy Clause, Moore v. Missouri, 159 U. S. 673, 677 (1895), it also is undeniable that Nichols' DUI conviction directly resulted in more than two years' imprisonment. In any event, our concern here is not with multiple punishments, but with reliability. Specifically, is a prior uncounseled misdemeanor 758*758 conviction sufficiently reliable to justify additional jail time imposed under an enhancement statute? Because imprisonment is a punishment "different in kind" from fines or the threat of imprisonment, Scott, 440 U. S., at 373, we consistently have read the Sixth Amendment to require that courts decrease the risk of unreliability, through the provision of counsel, where a conviction results in imprisonment. That the sentence in Scott was imposed in the first instance and the sentence here was the result of an enhancement statute is a distinction without a constitutional difference. dui lawyer riverside 

The Court also defends its position by arguing that the process of sentencing traditionally is "less exacting" than the process of establishing guilt. Ante, at 747. This may be true as a general proposition,[2] but it does not establish that 759*759 an uncounseled conviction is reliable enough for Sixth Amendment purposes to justify the imposition of imprisonment, even in the sentencing context. Nor does it follow that, because the state may attempt to prove at sentencing conduct justifying greater punishment, it also may rely on a prior uncounseled conviction. In McMillan v. Pennsylvania, 477 U. S. 79 (1986), for example, the State was permitted to prove at sentencing that the defendant visibly possessed a firearm during the commission of the felonies of which he was convicted.[3] Where, as in McMillan, the state sets out 760*760 to prove actual conduct rather than the fact of conviction in a sentencing proceeding at which the defendant is represented by counsel, counsel can put the state to its proof, examining its witnesses, rebutting its evidence, and testing the reliability of its allegations. See Argersinger, 407 U. S., at 31 (the accused "`requires the guiding hand of counsel at every step in the proceedings against him,' " quoting Powell v. Alabama, 287 U. S., at 69) (emphasis added). In contrast, where the state simply submits a record of a conviction obtained in a proceeding in which the defendant lacked the assistance of counsel, we lack similar confidence that the conviction reliably reflects the defendant's conduct. dui lawyer riverside 

Moreover, as a practical matter, introduction of a record of conviction generally carries greater weight than other evidence of prior conduct. Indeed, the United States Sentencing Commission's Guidelines (Guidelines) require a district court to assess criminal history points for prior convictions, and to impose a sentence within the range authorized by the defendant's criminal history, unless it concludes that a defendant's "criminal history category significantly overrepresents 761*761 the seriousness of a defendant's criminal history or the likelihood that a defendant will commit further crimes." United States Sentencing Commission, Guidelines Manual § 4A1.3 (Nov. 1993). Realistically, then, the conclusion that a state may prove prior conduct in a sentencing proceeding at which the defendant is aided by counsel does not support, much less compel, a conclusion that the state may, in lieu of proving directly the prior conduct, rely on a conviction obtained against an uncounseled defendant.[4] dui lawyer riverside 

762*762 III dui lawyer riverside 

Contrary to the rule set forth by the Court, a rule that an uncounseled misdemeanor conviction never can form the basis for a term of imprisonment is faithful to the principle born of Gideon and announced in Argersinger that an uncounseled misdemeanor, like an uncounseled felony, is not reliable enough to form the basis for the severe sanction of incarceration. This Court in Gideon stated that "reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him." 372 U. S., at 344. Gideon involved a felony, but we recognized in Argersinger, 407 U. S., at 31, that counsel was "often a requisite to the very existence of a fair trial" in misdemeanor cases, as well. In the absence of this "assurance" of or "requisite" to a fair trial, we cannot have confidence in the reliability of the conviction and, therefore, cannot impose a prison term based on it.

These reliability concerns have prompted this Court to hold that an uncounseled felony conviction cannot later be used to increase a prison term under a state recidivist statute, Burgett v. Texas, 389 U. S. 109 (1967), nor even be considered by a court in sentencing for a subsequent conviction, United States v. Tucker, 404 U. S. 443 (1972). The Court offers no reason and I can think of none why the same rules 763*763 should not apply with regard to uncounseled misdemeanor convictions. Counsel can have a profound effect in misdemeanor cases, where both the volume of cases and the pressure to plead are great. See Argersinger, 407 U. S., at 36 ("`[m]isdemeanants represented by attorneys are five times as likely to emerge from police court with all charges dismissed as are defendants who face similar charges without counsel,' " quoting American Civil Liberties Union, Legal Counsel for Misdemeanants, Preliminary Report 1 (1970)); Baldasar, 446 U. S., at 228, n. 2 (Marshall, J., concurring) (recognizing that misdemeanor convictions may be less reliable than felony convictions because they are obtained through "assembly-line justice" and because jurors may be less scrupulous in applying the reasonable-doubt standard to a minor offense). Given the utility of counsel in these cases, the inherent risk of unreliability in the absence of counsel, and the severe sanction of incarceration that can result directly or indirectly from an uncounseled misdemeanor, there is no reason in law or policy to construe the Sixth Amendment to exclude the guarantee of counsel where the conviction subsequently results in an increased term of incarceration. dui lawyer riverside 

Moreover, the rule that an uncounseled misdemeanor conviction can never be used to increase a prison term is eminently logical, as Justice Marshall made clear in Baldasar: dui lawyer riverside 

"An uncounseled conviction does not become more reliable merely because the accused has been validly convicted of a subsequent offense. For this reason, a conviction which is invalid for purposes of imposing a sentence of imprisonment for the offense itself remains invalid for purposes of increasing a term of imprisonment for a subsequent conviction under a repeatoffender statute." Id., at 227-228 (concurring opinion).[5] dui lawyer riverside 

764*764 Finally, this rule is workable. As the Court has engaged in "constitutional line drawing" to determine the "precise limits and . . . ramifications" of Gideon `s principles, Scott, 440 U. S., at 372, it has sought to draw a clear line, one that adequately informs judges, prosecutors, and defendants of the consequences of their actions and decisions. Under the clear rule that an uncounseled misdemeanor conviction can never justify any term of imprisonment, the judge and the parties will know, at the beginning of a misdemeanor trial, that no imprisonment may be imposed, directly or collaterally, based on that proceeding, unless counsel is appointed to represent the indigent accused. See Argersinger, 407 U. S., at 42 (Burger, C. J., concurring in result). Admittedly, this rule might cause the state to seek and judges to grant appointed counsel for more indigent defendants, in order to preserve the right to use the conviction later for enhancement purposes. The Sixth Amendment guarantee of counsel should not be subordinated to these costs. See id., at 43, 44 (Burger, C. J., concurring in result) (accepting that the Court's holding would require the appointment of more defense counsel). In any event, the majority's rule, which exposes indigent defendants to substantial sentence enhancements on the basis of minor offenses, may well have the same result by encouraging more indigent defendants to seek counsel and to litigate offenses to which they otherwise 765*765 might have pleaded. This case is illustrative. When charged with driving under the influence, petitioner sought out an attorney, who told him that he did not need a lawyer if he was pleading nolo contendere. This advice made sense if a $250 fine was the only consequence of the plea. Its soundness is less apparent where the consequences can include a 2-year increase in a prison sentence down the road. dui lawyer riverside 

IV

With scant discussion of Sixth Amendment case law or principles, the Court today approves the imposition of two years of incarceration as the consequence of an uncounseled misdemeanor conviction. Because uncounseled misdemeanor convictions lack the reliability this Court has always considered a prerequisite for the imposition of any term of incarceration, I dissent. dui lawyer riverside 

Justice Ginsburg, dissenting.
 dui lawyer riverside 
In Custis v. United States, ante, p. 485, the Court held that, with the sole exception of convictions obtained in violation of the right to counsel, a defendant in a federal sentencing proceeding has no right to attack collaterally a prior state conviction used to enhance his sentence under the Armed Career Criminal Act of 1984. This case is dispositively different. dui lawyer riverside 

Custis presented a forum question. The issue was where, not whether, the defendant could attack a prior conviction for constitutional infirmity. See ante, at 497 (Custis "may attack his state sentence in Maryland or through federal habeas review"). dui lawyer riverside 

Here, we face an uncounseled prior conviction tolerable under the Sixth Amendment "assistance of counsel" guarantee only because it did not expose defendant Nichols to the prospect of incarceration. See Scott v. Illinois, 440 U. S. 367 (1979). Today's decision enlarges the impact of that uncounseled conviction. It turns what was a disposition allowing 766*766 no jail time—a disposition made for one day and case alone— into a judgment of far heavier weight. Nichols does not attack his prior uncounseled conviction for what it was. He is seeking only to confine that conviction to the term (no incarceration) that rendered it constitutional. dui lawyer riverside 

Recognizing that the issue in this case is not like the one presented in Custis, I join Justice Blackmun's dissenting opinion. dui lawyer riverside 

[*] Susan N. Herman and Steven R. Shapiro filed a brief for the American Civil Liberties Union as amicus curiae urging reversal. dui lawyer riverside 

Kent S. Scheidegger and Charles L. Hobson filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging affirmance. dui lawyer riverside 

[1] At the time of his conviction, petitioner faced a maximum punishment of one year imprisonment and a $1,000 fine. Georgia law provided that a person convicted of driving under the influence of alcohol "shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by imprisonment for not less than ten days nor more than one year, or by a fine of not less than $100.00 nor more than $1,000.00, or by both such fine and imprisonment." Ga. Code Ann. § 40.6-391(c) (1982). dui lawyer riverside 

[2] There are six criminal history categories under the Sentencing Guidelines. United States Sentencing Commission, Guidelines Manual (USSG) ch. 5, pt. A (Nov. 1993) (Sentencing Table). A defendant's criminal history category is determined by the number of his criminal history points, which in turn is based on his prior criminal record. Id., ch. 4, p. A. dui lawyer riverside 

[3] The Sentencing Table provides a matrix of sentencing ranges. On the vertical axis of the matrix is the defendant's offense level representing the seriousness of the crime; on the horizontal axis is the defendant's criminal history category. The sentencing range is determined by identifying the intersection of the defendant's offense level and his criminal history category. Id., ch. 5, pt. A (Sentencing Table). dui lawyer riverside 

[4] The Government contends that, even if Baldasar v. Illinois, 446 U. S. 222 (1980), prohibits using the prior uncounseled misdemeanor conviction to enhance petitioner's sentence, the District Court applied the wrong legal standard in finding no valid waiver of the right to counsel. Based on Johnson v. Zerbst, 304 U. S. 458, 467-469 (1938), and Parke v. Raley, 506 U. S. 20, 28-29 (1992), the Government argues that petitioner failed to carry his burden to establish the absence of a valid waiver of counsel. We need not address this contention due to our resolution of the Baldasar issue.

[5] Petitioner's instant felony conviction was punishable under statute by not less than 10 years' imprisonment and not more than life imprisonment. See 21 U. S. C. § 841(b)(1)(B); 979 F. 2d 402, 413-414, 417-418 (CA6 1992). dui lawyer riverside 

[6] The court also stated that its decision was "logically compelled" by Charles v. Foltz, 741 F. 2d 834, 837 (CA6 1984), cert. denied, 469 U. S. 1193 (1985), 979 F. 2d, at 415-416, 418 ("`[E]vidence of prior uncounselled misdemeanor convictions for which imprisonment was not imposed . . . may be used for impeachment purposes' "). dui lawyer riverside 

[7] Cf. Lovell v. State, 283 Ark. 425, 428, 678 S. W. 2d 318, 320 (1984) (Baldasar bars any prior uncounseled misdemeanor conviction from enhancing a term of imprisonment following a second conviction); State v. Vares, 71 Haw. 617, 620, 801 P. 2d 555, 557 (1990) (same); State v. Laurick, 120 N. J. 1, 16, 575 A. 2d 1340, 1347 (Baldasar bars an enhanced penalty only when it is greater than that authorized in the absence of the prior offense or converts a misdemeanor into a felony), cert. denied, 498 U. S. 967 (1990); Hlad v. State, 565 So. 2d 762, 764-766 (Fla. App. 1990) (following the approach of Justice Blackmun, thereby limiting enhancement to situations where the prior uncounseled misdemeanor was punishable by six months' imprisonment or less), aff'd, 585 So. 2d 928, 930 (Fla. 1991); Sheffield v. Pass Christian, 556 So. 2d 1052, 1053 (Miss. 1990) (Baldasar establishes no barrier to the collateral use of valid, uncounseled misdemeanor convictions). dui lawyer riverside 

[8] The Sixth Circuit expressly joined the Fifth and Second Circuits in essentially limiting Baldasar to its facts. See Wilson v. Estelle, 625 F. 2d 1158, 1159, and n. 1 (CA5 1980) (a prior uncounseled misdemeanor conviction cannot be used under a sentence enhancement statute to convert a subsequent misdemeanor into a felony with a prison term), cert. denied, 451 U. S. 912 (1981); United States v. Castro-Vega, 945 F. 2d 496, 500 (CA2 1991) (Baldasar does not apply where "the court used an uncounseled misdemeanor conviction to determine the appropriate criminal history category for a crime that was already a felony"), cert. denied sub nom. Cintron-Rodriguez v. United States, 507 U. S. 908 (1992). But see, e. g., United States v. Brady, 928 F. 2d 844, 854 (CA9 1991) (Baldasar and the Sixth Amendment bar any imprisonment in a subsequent case imposed because of an uncounseled conviction in which the right to counsel was not waived).
 dui lawyer riverside 
[9] In felony cases, in contrast to misdemeanor charges, the Constitution requires that an indigent defendant be offered appointed counsel unless that right is intelligently and competently waived. Gideon v. Wainwright, 372 U. S. 335 (1963). We have held that convictions gained in violation of Gideon cannot be used "either to support guilt or enhance punishment for another offense," Burgett v. Texas, 389 U. S. 109, 115 (1967), and that a subsequent sentence that was based in part on a prior invalid conviction must be set aside, United States v. Tucker, 404 U. S. 443, 447-449 (1972). dui lawyer riverside 

[10] See n. 7, supra. dui lawyer riverside 

[11] The 1989 version of the Sentencing Guidelines stated that, in determining a defendant's criminal history score, an uncounseled misdemeanor conviction should be excluded only if it "would result in the imposition of a sentence of imprisonment under circumstances that would violate the United States Constitution." USSG § 4A1.2, Application Note 6 (Nov. 1989). Effective November 1, 1990, the Sentencing Commission amended § 4A1.2 by deleting the above quoted phrase and adding the following statement as background commentary: "Prior sentences, not otherwise excluded, are to be counted in the criminal history score, including uncounseled misdemeanor sentences where imprisonment was not imposed." USSG App. C, amdt. 353 (Nov. 1993). When the Sentencing Commission initially published the amendment for notice and comment, it included the following explanation: "The Commission does not believe the inclusion of sentences resulting from constitutionally valid, uncounseled misdemeanor convictions in the criminal history score is foreclosed by Baldasar v. Illinois, 446 U. S. 222 (1980)." 55 Fed. Reg. 5741 (1990). dui lawyer riverside 

[12] Of course States may decide, based on their own constitutions or public policy, that counsel should be available for all indigent defendants charged with misdemeanors. Indeed, many, if not a majority, of States guarantee the right to counsel whenever imprisonment is authorized by statute, rather than actually imposed. See, e. g., Alaska Stat. Ann. § 18.85.100 (1991) ("serious" crime means any crime where imprisonment authorized); Ariz. Rule Crim. Proc. 6.1(b) (indigent defendant shall be entitled to have attorney appointed in any criminal proceeding that may result in punishment by loss of liberty, or where court concludes that appointment satisfies the ends of justice); Cal. Penal Code Ann. § 15 (West 1988), Cal. Penal Code Ann. § 858 (West 1985); Brunson v. State, 182 Ind. App. 146, 394 N. E. 2d 229 (1979) (right to counsel in misdemeanor proceedings guaranteed by Ind. Const., Art. I, § 13); N. H. Rev. Stat. Ann. § 604-A:2 (1986 and Supp. 1992). dui lawyer riverside 

[*] "Congress gave the Sentencing Commission authority to `maintai[n] sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices.' 28 U. S. C. § 991(b)(1)(B). The Commission used this authority in adopting § 4A1.3, which it said was designed to `recognize[] that the criminal history score is unlikely to take into account all the variations in the seriousness of criminal history that may occur.' USSG § 4A1.3 (commentary)." United States v. Beckham, 968 F. 2d 47, 54 (CADC 1992); see also United States v. Shoupe, 988 F. 2d 440, 445 (CA3 1993) ("[I]n Guidelines § 4A1.3, the Commission specifically provided district courts with flexibility to adjust the criminal history category calculated through . . . rigid formulae"). Cf. Miller & Freed, Honoring Judicial Discretion Under the Sentencing Reform Act, 3 Fed. Sent. R. 235, 238 (1991) (discussing "Congress' desire to leave substantial sentencing discretion in the hands of the sentencing judge").

[1] I dissented in Scott v. Illinois, 440 U. S. 367 (1979), in which five Members of the Court held that the Sixth Amendment required counsel only for convictions that were punished by actual imprisonment, and not for offenses that were punishable by imprisonment, but where imprisonment was not imposed. Believing that the line the Court drew did not protect indigent defendants adequately or keep faith with our Sixth Amendment principles, I argued for a right to counsel not only where the defendant was convicted and sentenced to jail time, but also where the defendant was convicted of any offense punishable by more than six months' imprisonment, regardless of the punishment actually imposed. Id., at 389-390.

A year later, when the Court decided Baldasar v. Illinois, 446 U. S. 222 (1980), I adhered to this position, concurring in the Court's per curiam opinion and its judgment that the uncounseled conviction could not be used to justify increasing Baldasar's jail time. Although I based my decision on my belief that the uncounseled conviction was invalid in the first instance because Baldasar was charged with an offense punishable by more than six months in prison, I expressed no disagreement, and indeed had none, with the premise that an uncounseled conviction that was valid under Scott was invalid for purposes of imposing increased incarceration for a subsequent offense. 446 U. S., at 229-230. Obviously, logic dictates that, where the threat of imprisonment is enough to trigger the Sixth Amendment's guarantee of counsel, the actual imposition of imprisonment through an enhancement statute also requires the appointment of counsel.

[2] In support of its position, the majority cites several cases that refer to a sentencing judge's traditional discretion. The cases provide scant, if any, support for the majority's rule sanctioning the use of prior uncounseled convictions as the basis for increased terms of imprisonment. None even addresses the Sixth Amendment guarantee of counsel.

In McMillan v. Pennsylvania, 477 U. S. 79 (1986), the Court held 5 to 4 that a state statute defining visible possession of a firearm as a sentencing consideration that could be proved by a preponderance of the evidence, rather than as an element of the crime that must be proved beyond a reasonable doubt, did not violate due process. McMillan did not involve the use of a prior conviction in a subsequent proceeding. Additionally, McMillan involved only felony convictions, in which the defendants were entitled to counsel at every step of the proceedings to assist in proving or disproving the facts to be relied on in sentencing. The Court also noted that the "risk of error" in the challenged proceeding was "comparatively slight" because visible possession was "a simple, straightforward issue susceptible of objective proof." Id., at 84. The same cannot be said for the reliability of prior uncounseled misdemeanors. See Argersinger v. Hamlin, 407 U. S. 25, 34 (1972) (observing that the volume of misdemeanor cases "may create an obsession for speedy dispositions, regardless of the fairness of the result"); id., at 35 (noting that "`[t]he misdemeanor trial is characterized by insufficient and frequently irresponsible preparation,' " quoting Hellerstein, The Importance of the Misdemeanor Case on Trial and Appeal, 28 The Legal Aid Brief Case 151, 152 (1970)). Moreover, a finding of visible possession did not expose a defendant to a greater or additional punishment than otherwise authorized, McMillan, 477 U. S., at 88, while the prior conviction at issue here exposed petitioner to two additional years in prison.

Wisconsin v. Mitchell, 508 U. S. 476 (1993), in which the Court rejected a First Amendment challenge to a state statute that enhanced a penalty based on the defendant's motive, is no more helpful to the majority's position. The Court simply observed that the defendant's motive was a factor traditionally considered by sentencing judges; it said nothing about the validity of prior convictions or even about the standard required to prove the motive. Similarly, although United States v. Tucker, 404 U. S. 443, 446 (1972), made passing reference to a sentencing judge's broad inquiry, it held only that Gideon v. Wainwright, 372 U. S. 335 (1963), required resentencing where the sentencing court had considered prior felony convictions that later were found to have been uncounseled. dui lawyer riverside 

Finally, Williams v. New York, 337 U. S. 241 (1949), was a Confrontation Clause challenge to a sentencing judge's consideration of evidence obtained through a presentence investigation. The court did not rely on any prior convictions; the defendant, who was represented by counsel, did not challenge the accuracy of the information the judge considered, ask the judge to disregard it, or seek to refute or discredit it; and the consideration of this information did not expose the defendant to a greater or additional punishment. dui lawyer riverside 

[3] McMillan, of course, was a due process case. Curiously, the Court appears to rest its holding as much on the Due Process Clause as on the Sixth Amendment. See ante, at 748. But even if the use of a prior uncounseled conviction does not violate due process, that does not conclusively resolve the Sixth Amendment question. Compare Betts v. Brady, 316 U. S. 455, 462 (1942) (holding that the right to counsel was not required under the Due Process Clause of the Fourteenth Amendment and recognizing due process as a "concept less rigid and more fluid than those envisaged in other specific and particular provisions of the Bill of Rights"), with Gideon v. Wainwright, 372 U. S., at 339 (holding that the Sixth Amendment requires counsel in all state felony prosecutions). dui lawyer riverside 
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Nor do I read the majority's reliance on due process to reflect an understanding that due process requires only partial incorporation of the Sixth Amendment right to counsel in state courts. This Court long has recognized the "Sixth Amendment's guarantee of counsel" as "`fundamental and essential to a fair trial' " and therefore "made obligatory upon the States by the Fourteenth Amendment." Id., at 342; see also Johnson v. Zerbst, 304 U. S. 458, 462 (1938) (the assistance of counsel "is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty"); Grosjean v. American Press Co., 297 U. S. 233, 243-244 (1936) ("the fundamental right of the accused to the aid of counsel in a criminal prosecution" is "safeguarded against state action by the due process of law clause of the Fourteenth Amendment"). No decision of this Court even has intimated that the Sixth Amendment right to counsel somehow is diluted or truncated in state proceedings. dui lawyer riverside 

[4] Justice Souter concludes that this provision passes Sixth Amendment muster by providing the defendant a "reasonable opportunity" to disprove the accuracy of the prior conviction. Ante, at 753. Even assuming that the Guidelines would permit a sentencing court to depart downward in response to a defendant's claim that his conviction resulted from his lack of sophistication or his calculation that it was cheaper to plead and pay a low fine than to retain counsel and litigate the charge, such a safety valve still does not accommodate reliability concerns sufficiently. As Chief Justice Burger recognized in Argersinger, "[a]ppeal from a conviction after an uncounseled trial is not likely to be of much help to a defendant since the die is usually cast when judgment is entered on an uncounseled trial record." 407 U. S., at 41 (concurring opinion). A collateral proceeding holds forth no greater promise of relief. The uncounseled misdemeanor convictions that are considered inherently unreliable under Argersinger and Scott are presumptively valid under most sentence enhancement schemes, see, e. g., Custis v. United States, ante, p. 485 (limiting a defendant's right to attack as unconstitutional a prior conviction used to enhance a sentence under the Armed Career Criminal Act of 1984, 18 U. S. C. § 924(e)); Parke v. Raley, 506 U. S. 20 (1992) (presumption of validity that attaches to final judgments properly extended to prior convictions used for sentence enhancement under a state recidivism statute), and are presumptively reflected in a defendant's criminal history score—and sentence—under the Guidelines, see United States Sentencing Commission, Guidelines Manual App. C, amdt. 353 (Nov. 1993) ("Prior sentences, not otherwise excluded, are to be counted in the criminal history score, including uncounseled misdemeanor sentences where imprisonment was not imposed").
 dui lawyer riverside 
Moreover, although it might be salutary for courts to consider under the Guidelines a defendant's reasons other than culpability for pleading nolo contendere to a prior misdemeanor conviction, I do not share Justice Souter's confidence that such a benevolent review of a defendant's circumstances is occurring now. Even if it were, a district court, after the most probing review, generally may depart downward only in "atypical" cases, outside the "heartland" carved by each guideline,United States Sentencing Commission, Guidelines Manual, ch. 1, pt. A, comment., 4(b) (Nov. 1991). This does not alleviate our concern in Argersinger that the "typical" misdemeanor case presents pressures to plead guilty or nolo contendere, regardless of the fairness or accuracy of that plea. 407 U. S., at 34-36. Accordingly, I find the district court's authority to depart downward too tenuous a check on the use of unreliable misdemeanor convictions to salvage a sentencing scheme that is,in my view, a violation of Scott.

[5] From another perspective, the prior uncounseled conviction can be viewed as a "hybrid" conviction: valid for the purpose of imposing a sentence, but invalid for the purpose of depriving the accused of his liberty. See Baldasar, 446 U. S., at 232 (Powell, J., dissenting). There is nothing intuitively offensive about a "hybrid." See id., at 226 (Marshall, J., concurring) (noting and accepting that Baldasar's conviction was not valid for all purposes); see also 15 U. S. C. § 16(a) (certain consent decrees or consent judgments in favor of the Government in a civil or criminal antitrust action shall not be prima facie evidence in a subsequent proceeding brought by another party); § 16(h) (district court proceedings leading to a consent judgment proposed by the Government are inadmissible as evidence in subsequent proceedings); 10 J. von Kalinowski, Antitrust Laws and Trade Regulation § 105.02[10], p. 110 (1993) ("[A]llegations based on pleas of nolo contendere in government suits, and the judgments entered thereon, should not be included in the complaint" in a subsequent action).
 dui lawyer riverside 



VEHICLE CODE 
SECTION 21650-21664 
21650. Upon all highways, a vehicle shall be driven upon the right half of the roadway, except as follows: (a) When overtaking and passing another vehicle proceeding in the same direction under the rules governing that movement. (b) When placing a vehicle in a lawful position for, and when the vehicle is lawfully making, a left turn. (c) When the right half of a roadway is closed to traffic under construction or repair. (d) Upon a roadway restricted to one-way traffic. (e) When the roadway is not of sufficient width. (f) When the vehicle is necessarily traveling so slowly as to impede the normal movement of traffic, that portion of the highway adjacent to the right edge of the roadway may be utilized temporarily when in a condition permitting safe operation. (g) This section does not prohibit the operation of bicycles on any shoulder of a highway, on any sidewalk, on any bicycle path within a highway, or along any crosswalk or bicycle path crossing, where the operation is not otherwise prohibited by this code or local ordinance. (h) This section does not prohibit the operation of a transit bus on the shoulder of a state highway in conjunction with the implementation of a program authorized pursuant to Section 148.1 of the Streets and Highways Code on state highways within the areas served by the transit services of the Monterey-Salinas Transit District or the Santa Cruz Metropolitan Transit District. 21650.1. A bicycle operated on a roadway, or the shoulder of a highway, shall be operated in the same direction as vehicles are required to be driven upon the roadway. 21651. (a) Whenever a highway has been divided into two or more roadways by means of intermittent barriers or by means of a dividing section of not less than two feet in width, either unpaved or delineated by curbs, double-parallel lines, or other markings on the roadway, it is unlawful to do either of the following: (1) To drive any vehicle over, upon, or across the dividing section. (2) To make any left, semicircular, or U-turn with the vehicle on the divided highway, except through an opening in the barrier designated and intended by public authorities for the use of vehicles or through a plainly marked opening in the dividing section. (b) It is unlawful to drive any vehicle upon a highway, except to the right of an intermittent barrier or a dividing section which separates two or more opposing lanes of traffic. Except as otherwise provided in subdivision (c), a violation of this subdivision is a misdemeanor. (c) Any willful violation of subdivision (b) which results in injury to, or death of, a person shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code, or imprisonment in a county jail for a period of not more than six months. 21651.1. (a) The Department of Transportation, in consultation with the Department of the California Highway Patrol, shall update the June 1989 report entitled "Prevention of Wrong-Way Accidents" prepared by the Department of Transportation pursuant to Chapter 153 of the Statutes of 1987. The update shall account for technological advancements and innovation since publication of the 1989 report and shall include a review of methods studied or implemented by other jurisdictions, including state or local agencies within or outside the state, and methods studied by nongovernmental entities to prevent wrong-way drivers from entering state highways. A preliminary version of the updated report shall be provided to the Senate Committee on Housing and Transportation and the Assembly Committee on Transportation on or before December 1, 2015, and the final report shall be provided to those committees on or before July 1, 2016. The report shall identify any additional treatments and technologies with the potential to reduce the number of instances of wrong-way driving on state highways and shall include a plan to incorporate those treatments and technologies into the Department of Transportation's wrong way monitoring and mitigation program for the state highway system. (b) This section is repealed on January 1, 2021, pursuant to Section 10231.5 of the Government Code. 21652. When any service road has been constructed on or along any public highway and the main thoroughfare of the highway has been separated from the service road, it is unlawful for any person to drive any vehicle into the main thoroughfare from the service road or from the main thoroughfare into the service road except through an opening in the dividing curb, section, separation, or line. 21654. (a) Notwithstanding the prima facie speed limits, any vehicle proceeding upon a highway at a speed less than the normal speed of traffic moving in the same direction at such time shall be driven in the right-hand lane for traffic or as close as practicable to the right-hand edge or curb, except when overtaking and passing another vehicle proceeding in the same direction or when preparing for a left turn at an intersection or into a private road or driveway. (b) If a vehicle is being driven at a speed less than the normal speed of traffic moving in the same direction at such time, and is not being driven in the right-hand lane for traffic or as close as practicable to the right-hand edge or curb, it shall constitute prima facie evidence that the driver is operating the vehicle in violation of subdivision (a) of this section. (c) The Department of Transportation, with respect to state highways, and local authorities, with respect to highways under their jurisdiction, may place and maintain upon highways official signs directing slow-moving traffic to use the right-hand traffic lane except when overtaking and passing another vehicle or preparing for a left turn. 21655. (a) Whenever the Department of Transportation or local authorities with respect to highways under their respective jurisdictions determines upon the basis of an engineering and traffic investigation that the designation of a specific lane or lanes for the travel of vehicles required to travel at reduced speeds would facilitate the safe and orderly movement of traffic, the department or local authority may designate a specific lane or lanes for the travel of vehicles which are subject to the provisions of Section 22406 and shall erect signs at reasonable intervals giving notice thereof. (b) Any trailer bus, except as provided in Section 21655.5, and any vehicle subject to the provisions of Section 22406 shall be driven in the lane or lanes designated pursuant to subdivision (a) whenever signs have been erected giving notice of that designation. Except as otherwise provided in this subdivision, when a specific lane or lanes have not been so designated, any of those vehicles shall be driven in the right-hand lane for traffic or as close as practicable to the right edge or curb. If, however, a specific lane or lanes have not been designated on a divided highway having four or more clearly marked lanes for traffic in one direction, any of those vehicles may also be driven in the lane to the immediate left of that right-hand lane, unless otherwise prohibited under this code. When overtaking and passing another vehicle proceeding in the same direction, the driver shall use either the designated lane, the lane to the immediate left of the right-hand lane, or the right-hand lane for traffic as permitted under this code. This subdivision does not apply to a driver who is preparing for a left- or right-hand turn or who is entering into or exiting from a highway or to a driver who must necessarily drive in a lane other than the right-hand lane to continue on his or her intended route. 21655.5. (a) The Department of Transportation and local authorities, with respect to highways under their respective jurisdictions, may authorize or permit exclusive or preferential use of highway lanes for high-occupancy vehicles. Prior to establishing the lanes, competent engineering estimates shall be made of the effect of the lanes on safety, congestion, and highway capacity. (b) The Department of Transportation and local authorities, with respect to highways under their respective jurisdictions, shall place and maintain, or cause to be placed and maintained, signs and other official traffic control devices to designate the exclusive or preferential lanes, to advise motorists of the applicable vehicle occupancy levels, and, except where ramp metering and bypass lanes are regulated with the activation of traffic signals, to advise motorists of the hours of high-occupancy vehicle usage. No person shall drive a vehicle upon those lanes except in conformity with the instructions imparted by the official traffic control devices. A motorcycle, a mass transit vehicle, or a paratransit vehicle that is clearly and identifiably marked on all sides of the vehicle with the name of the paratransit provider may be operated upon those exclusive or preferential use lanes unless specifically prohibited by a traffic control device. (c) When responding to an existing emergency or breakdown in which a mass transit vehicle is blocking an exclusive or preferential use lane, a clearly marked mass transit vehicle, mass transit supervisor' s vehicle, or mass transit maintenance vehicle that is responding to the emergency or breakdown may be operated in the segment of the exclusive or preferential use lane being blocked by the mass transit vehicle, regardless of the number of persons in the vehicle responding to the emergency or breakdown, if both vehicles are owned or operated by the same agency, and that agency provides public mass transit services. (d) For purposes of this section, a "paratransit vehicle" is defined in Section 462. (e) For purposes of this section, a "mass transit vehicle" means a transit bus regularly used to transport paying passengers in mass transit service. (f) It is the intent of the Legislature, in amending this section, to stimulate and encourage the development of ways and means of relieving traffic congestion on California highways and, at the same time, to encourage individual citizens to pool their vehicular resources and thereby conserve fuel and lessen emission of air pollutants. (g) The provisions of this section regarding mass transit vehicles and paratransit vehicles shall only apply if the Director of Transportation determines that the application will not subject the state to a reduction in the amount of federal aid for highways. 21655.6. (a) Whenever the Department of Transportation authorizes or permits exclusive or preferential use of highway lanes for high-occupancy vehicles on any highway located within the territory of a transportation planning agency, as defined in Section 99214 of the Public Utilities Code, or a county transportation commission, the department shall obtain the approval of the transportation planning agency or county transportation commission prior to establishing the exclusive or preferential use of the highway lanes. (b) If the department authorizes or permits additional exclusive or preferential use of highway lanes for high-occupancy vehicles on that portion of State Highway Route 101 located within the boundaries of the City of Los Angeles, the department shall obtain the approval of the Los Angeles County Transportation Commission by at least a two-thirds majority vote of the entire membership eligible to vote prior to establishing the additional exclusion or preferential use of the highway lanes. (c) If the department restricts or requires the restriction of the use of any lane on any federal-aid highway in the unincorporated areas of Alameda County to high-occupancy vehicles, the Metropolitan Transportation Commission shall review the use patterns of those lanes and shall determine if congestion relief is being efficiently achieved by the creation of the high-occupancy vehicle lanes. The commission shall report its findings and recommendations in its HOV Master Plan Update for the San Francisco Bay area no later than two years after those high-occupancy vehicle lanes become operational. 21655.7. A local authority, with respect to any highway under its jurisdiction, may authorize or permit a portion of the highway to be used exclusively for a public mass transit guideway. 21655.8. (a) Except as required under subdivision (b), when exclusive or preferential use lanes for high-occupancy vehicles are established pursuant to Section 21655.5 and double parallel solid lines are in place to the right thereof, no person driving a vehicle may cross over these double lines to enter into or exit from the exclusive or preferential use lanes, and entrance or exit may be made only in areas designated for these purposes or where a single broken line is in place to the right of the exclusive or preferential use lanes. (b) Upon the approach of an authorized emergency vehicle displaying a red light or siren, as specified in Section 21806, a person driving a vehicle in an exclusive or preferential use lane shall exit that lane immediately upon determining that the exit can be accomplished with reasonable safety. (c) Raised pavement markers may be used to simulate painted lines described in this section. 21655.9. (a) (1) Whenever the Department of Transportation or a local authority authorizes or permits exclusive or preferential use of highway lanes or highway access ramps for high-occupancy vehicles pursuant to Section 21655.5, the use of those lanes or ramps shall also be extended to vehicles that are issued distinctive decals, labels, or other identifiers pursuant to Section 5205.5 regardless of vehicle occupancy or ownership. (2) A local authority during periods of peak congestion shall suspend for a lane the access privileges extended pursuant to paragraph (1) for those vehicles issued distinctive decals, labels, or other identifiers pursuant to Section 5205.5, if a periodic review of lane performance by that local authority discloses both of the following factors regarding the lane: (A) The lane, or a portion of the lane, exceeds a level of service C, as described in subdivision (b) of Section 65089 of the Government Code. (B) The operation or projected operation of vehicles in the lane, or a portion of the lane, will significantly increase congestion. (b) A person shall not drive a vehicle described in subdivision (a) of Section 5205.5 with a single occupant upon a high-occupancy vehicle lane pursuant to this section unless the decal, label, or other identifier issued pursuant to Section 5205.5 is properly displayed on the vehicle, and the vehicle registration described in Section 5205.5 is with the vehicle. (c) A person shall not operate or own a vehicle displaying a decal, label, or other identifier, as described in Section 5205.5, if that decal, label, or identifier was not issued for that vehicle pursuant to Section 5205.5. A violation of this subdivision is a misdemeanor. (d) If the provisions in Section 5205.5 authorizing the department to issue decals, labels, or other identifiers to hybrid and alternative fuel vehicles are repealed, vehicles displaying those decals, labels, or other identifiers shall not access high-occupancy vehicle lanes without meeting the occupancy requirements otherwise applicable to those lanes. (e) This section shall become inoperative on January 1, 2019, or the date the federal authorization pursuant to Section 166 of Title 23 of the United States Code expires, or the date the Secretary of State receives the notice described in subdivision (i) of Section 5205.5, whichever occurs first, and, as of January 1, 2019, is repealed, unless a later enacted statute, that becomes operative on or before January 1, 2019, deletes or extends the dates on which it becomes inoperative and is repealed. 21656. On a two-lane highway where passing is unsafe because of traffic in the opposite direction or other conditions, a slow-moving vehicle, including a passenger vehicle, behind which five or more vehicles are formed in line, shall turn off the roadway at the nearest place designated as a turnout by signs erected by the authority having jurisdiction over the highway, or wherever sufficient area for a safe turnout exists, in order to permit the vehicles following it to proceed. As used in this section a slow-moving vehicle is one which is proceeding at a rate of speed less than the normal flow of traffic at the particular time and place. 21657. The authorities in charge of any highway may designate any highway, roadway, part of a roadway, or specific lanes upon which vehicular traffic shall proceed in one direction at all or such times as shall be indicated by official traffic control devices. When a roadway has been so designated, a vehicle shall be driven only in the direction designated at all or such times as shall be indicated by traffic control devices. 21658. Whenever any roadway has been divided into two or more clearly marked lanes for traffic in one direction, the following rules apply: (a) A vehicle shall be driven as nearly as practical entirely within a single lane and shall not be moved from the lane until such movement can be made with reasonable safety. (b) Official signs may be erected directing slow-moving traffic to use a designated lane or allocating specified lanes to traffic moving in the same direction, and drivers of vehicles shall obey the directions of the traffic device. 21659. Upon a roadway which is divided into three lanes a vehicle shall not be driven in the extreme left lane at any time, nor in the center lane except when overtaking and passing another vehicle where the roadway ahead is clearly visible and the center lane is clear of traffic within a safe distance, or in preparation for a left turn, or where the center lane is at the time allocated exclusively to traffic moving in the direction the vehicle is proceeding and is signposted to give notice of such allocation. This section does not apply upon a one-way roadway. 21660. Drivers of vehicles proceeding in opposite directions shall pass each other to the right, and, except when a roadway has been divided into traffic lanes, each driver shall give to the other at least one-half of the main traveled portion of the roadway whenever possible. 21661. Whenever upon any grade the width of the roadway is insufficient to permit the passing of vehicles approaching from opposite directions at the point of meeting, the driver of the vehicle descending the grade shall yield the right-of-way to the vehicle ascending the grade and shall, if necessary, back his vehicle to a place in the highway where it is possible for the vehicles to pass. 21662. The driver of a motor vehicle traveling through defiles or canyons or upon mountain highways shall hold the motor vehicle under control at all times and shall do the following when applicable: (a) If the roadway has no marked centerline, the driver shall drive as near the right-hand edge of the roadway as is reasonably possible. (b) If the roadway has insufficient width to permit a motor vehicle to be driven entirely to the right of the center of the roadway, the driver shall give audible warning with the horn of the motor vehicle upon approaching any curve where the view is obstructed within a distance of 200 feet along the highway. 21663. Except as expressly permitted pursuant to this code, including Sections 21100.4 and 21114.5, no person shall operate or move a motor vehicle upon a sidewalk except as may be necessary to enter or leave adjacent property. 21664. It is unlawful for the driver of any vehicle to enter or exit any freeway which has full control of access and no crossings at grade, except upon a designated on ramp with respect to entering the freeway or a designated off ramp with respect to exiting the freeway.


VEHICLE CODE
SECTION 23635
23635. When an allegation of a violation of Section 23152 is dismissed by the court, an allegation of a different or lesser offense is substituted for an allegation of a violation of Section 23152, or an allegation of a separate conviction is dismissed or stricken, the court shall specify on the record its reason or reasons for the order. The court shall also specify on the record whether Dui Lawyer the dismissal, substitution, or striking was requested by the prosecution and whether the prosecution concurred in or opposed the dismissal, substitution, or striking. When the prosecution makes a motion for a dismissal or substitution, or for the  Dui Lawyer striking of a separate conviction, the prosecution shall submit a written statement which shall become part of the court record and which gives the reasons for the motion. The reasons shall include, but need not be limited to, problems of proof, the interests of justice, why another offense is more properly charged, if applicable, and any other pertinent reasons. If the reasons include the "interests of justice," the written statement shall specify all of the factors which contributed to this conclusion. Dui Lawyer


VEHICLE CODE
SECTION 23600-23602
23600. (a) If any person is convicted of a violation of Section 23152 or 23153, the court shall not stay or suspend pronouncement of sentencing, and shall pronounce sentence in conjunction with Dui Lawyer the conviction in a reasonable time, including time for receipt of any presentence investigation report ordered pursuant to Section 23655. (b) If any person is convicted of a violation of Section 23152 or 23153 and is granted probation, the terms and conditions of probation shall include, but not be limited to, the following: (1) Notwithstanding Section 1203a of the Penal Code, a period of probation not less than three Dui Lawyer nor more than five years; provided, however, that if the maximum sentence provided for the offense may exceed five years in the state prison, the period during which the sentence may be suspended and terms of probation enforced may be for a longer period than three years but may not exceed the maximum time for which sentence of imprisonment may be pronounced. (2) A requirement  Dui Lawyer that the person shall not drive a vehicle with any measurable amount of alcohol in his or Dui Lawyer her blood. (3) A requirement that the person, if arrested for a violation of Section 23152 or 23153, shall not refuse to submit to a chemical test of his or her blood, breath, or urine, pursuant to Section 23612, for the purpose of determining the alcoholic content of his or her blood. (4) A requirement that the person shall not commit Dui Lawyer any criminal offense. (c) The court shall not absolve a person who is convicted of a violation of Section 23152 or 23153 from the obligation of spending the minimum time in confinement, if any, or of paying the minimum fine imposed by law. (d) In addition to any other provision of law, if any person violates paragraph (2) or (3) of subdivision (b) and the person had a blood alcohol concentration of over 0.04 percent as determined by a chemical test, the court shall revoke or terminate the person's probation as provided by Section 23602, regardless of any other proceeding, and shall only grant a new term of probation of not more than five years on the added condition that the person be confined in the county jail for not less than 48 hours for each of these violations of probation, except in unusual cases where the interests of justice would best be served if this additional condition were not imposed. 23601. (a) Except as provided in subdivision (c), an order to pay any fine, restitution, or assessment, imposed as a condition of the grant of probation or as part of a judgment of conditional sentence for a violation of Section 23152 or 23153, may be enforced in the same manner Dui Lawyer provided for the enforcement of money judgments. (b) A willful failure to pay any fine, restitution, or assessment during the term of probation is a violation of the terms and conditions of probation. (c) If an order to pay a fine as a condition of probation is stayed, a writ of execution shall not be issued, and any failure to pay the fine is not willful, until the stay is removed. 23602. Except as otherwise expressly provided in this code, if a person has been convicted of a violation of Section 23152 or 23153 and the court has suspended execution of the sentence for that conviction and has granted probation, and during the time of that probation, the person is found by the court to have violated a required term or condition of that probation, the Dui Lawyer court shall revoke the suspension of sentence, revoke or terminate probation, and shall proceed in the manner provided in subdivision (c) of Section 1203.2 of the Penal Code.


VEHICLE CODE
SECTION 23598
23598. In lieu of the alcohol or drug education program prescribed by Section 23538, 23542, 23548, 23552, 23556, 23562, or 23568, a court may impose, as a condition of probation, that the person complete, subsequent to the underlying conviction, a program specified in Section 8001 of the Penal Code, if the person consents and has been accepted into Dui Lawyer that program. Acceptance into that program shall be verified by a certification, under penalty of perjury, by the director of the program.


VEHICLE CODE
SECTION 23592-23597
23592. (a) (1) Whenever a person is convicted of any of the  Dui Lawyer following offenses committed while driving a motor vehicle of which he or she is the owner, the court, at the time sentence is imposed on the person, may order the motor vehicle impounded for a period of not more than six months for a first conviction, and not more than 12 months for a second or subsequent conviction: (A) Driving with a suspended or revoked driver's license. (B) A violation of Section 2800.2 resulting Dui Lawyer in an accident or Section 2800.3, if either violation occurred within seven years of one or more separate convictions for a violation of any of the following: (i) Section 23103, if the vehicle involved in the violation was driven at a speed of 100 or more miles per hour. (ii) Section 23152. (iii) Section 23153. (iv) Subdivisions (a) and (b) of Section 191.5 of the Penal Code. (v) Subdivision (c) of Section 192 of the Penal Code. (vi) Subdivision (a) of Dui Lawyer Section 192.5 of the Penal Code. (2) The cost of keeping the vehicle is a lien on the vehicle pursuant to Chapter 6.5 (commencing with Section 3067) of Title 14 of Part 4 of Division 3 of the Civil Code. (b) Notwithstanding subdivision (a), a motor vehicle impounded pursuant to this section that is subject to a chattel mortgage, conditional sale contract, or lease contract shall be released by the court to the legal owner upon the filing of an affidavit by the legal owner that the chattel mortgage, conditional sale contract, or lease contract is in default and shall be delivered to the legal owner upon payment of the accrued cost of keeping the vehicle. 23593. (a) The court shall advise a person convicted of a violation of Section 23103, as specified in Section 23103.5, or a violation of Section 23152 or 23153, as follows: "You are hereby advised that being under the influence of alcohol or drugs, or both, impairs your ability to safely operate a motor vehicle. Therefore, it is extremely dangerous to human life to drive while under the influence of alcohol or drugs, or both. If you continue to drive while under the influence of alcohol or drugs, or both, and, as a result of that driving, someone is killed, you can be charged with murder." (b) The Dui Lawyer advisory statement may be included in a plea form, if used, or the fact that the advice was  Dui Lawyer given may be specified on the record. (c) The court shall include on the abstract of the conviction or violation submitted to the department under Section 1803 or 1816, the fact that the person has been advised as required under subdivision (a). 23594. (a) Except as provided in subdivision (b), the interest of any registered owner of a motor vehicle that has been used in the commission of a violation of Section 23152 or 23153 for which the owner was convicted, is subject to impoundment as provided in this section. Upon conviction, the court may order the vehicle impounded at the registered owner's expense for not less than one nor more than 30 days. If the offense occurred within five years of a prior offense which resulted in conviction of a violation of Section 23152 or 23153, the prior conviction shall also be charged in the accusatory pleading and if admitted or found to be true by the jury upon a jury trial or by the court upon a court trial, the court shall, except in an unusual case where the Dui Lawyer interests of justice would best be served by not ordering impoundment, order the vehicle impounded at the registered owner's expense for not less than one nor more than 30 days. If the offense occurred within five years of two or more prior offenses which resulted in convictions of violations of Section 23152 or 23153, the prior convictions shall also be charged in the accusatory pleading and if admitted or found to be true by the jury upon a jury trial or by the court upon a court trial, the court shall, except in an unusual case where the interests of justice would best be served by not ordering impoundment, order the vehicle impounded at the registered owner's expense for not less than one nor more than 90 days. For the purposes of this section, the court may consider in the interests of justice factors such as whether impoundment of the vehicle would result in a loss of employment of the offender or the offender's family, impair the ability of the offender or the offender' s family to attend school or obtain medical care, result in the loss of the vehicle because of inability to pay impoundment fees, or unfairly infringe upon  Dui Lawyer community property rights or any other facts the court finds relevant. When no impoundment is ordered in an unusual case pursuant to this section, the court shall specify on the record and shall enter in the minutes the circumstances indicating that the interests of justice Dui Lawyer would best be served by that disposition. (b) No vehicle which may be lawfully driven on the highway with a class C or class M driver's license, as specified in Section 12804.9, is subject to impoundment under this section if there is a community property interest in the vehicle owned by a person other than the defendant and the vehicle is the sole vehicle available to the defendant's immediate family which may be operated on the highway with a class C or class M driver's license. 23596. (a) (1) Upon its own motion or upon motion of the prosecutor in a criminal action for a violation of any of the following offenses, the court with jurisdiction over the offense, notwithstanding Section 86 of the Code of Civil Procedure and any other provision of law otherwise prescribing the jurisdiction of the court based upon the value of the property involved, may declare the motor vehicle driven by the defendant to be a nuisance if the defendant is the registered owner of the vehicle: (A) A violation of Section 191.5 of, or subdivision (a) of Section 192.5 of, the Penal Code. (B) A violation of Section 23152 that occurred within seven years of two or more separate offenses of Section 191.5 of, or subdivision (a) of Section 192.5 of, the Penal Code, or Section 23152 or 23153, or any combination thereof, that resulted in convictions. (C) A violation of Section 23153 that occurred within seven years of one or more separate offenses of Section 191.5 of, or subdivision (a) of Section 192.5 of, the Penal Code, or Section 23152 or 23153, that resulted in convictions. (2) The court or the prosecutor shall give notice of the motion to the defendant, and the court shall  Dui Lawyer hold a hearing before a motor vehicle may be declared a nuisance under this section. (b) Except as provided in subdivision (g), upon the conviction of the Dui Lawyer defendant and at the time of pronouncement of sentence, the court with jurisdiction over the offense shall order a vehicle declared to be a nuisance pursuant to subdivision (a) to be sold. A vehicle ordered to be sold pursuant to this subdivision shall be surrendered to the sheriff of the county or the chief of police of the city in which the violation occurred. The officer to whom the vehicle is surrendered shall promptly ascertain from the department the names and addresses of all legal and registered owners of the vehicle and, within five days of receiving that information, shall send by certified mail a notice to all legal and registered owners of the vehicle other than the defendant, at the addresses obtained from the department, informing them that the vehicle has been declared a nuisance and will be sold or otherwise disposed of pursuant to this section and of the approximate date and location of the sale or other disposition. The notice shall also inform a legal owner of its right to conduct the sale pursuant to subdivision (c). (c) The legal owner who is a motor vehicle dealer, bank, credit union, acceptance corporation, or other licensed finance institution legally operating in this state, or the agent of that legal owner, may take possession and conduct the sale of the vehicle declared to be a nuisance if it notifies the officer to whom the vehicle is surrendered of its intent to conduct the sale within 15 days of the mailing of the notice pursuant to subdivision (b). Sale of the vehicle pursuant to this subdivision may be  Dui Lawyer conducted at the time, in the manner, and on the notice usually given for the sale of repossessed or surrendered vehicles. The proceeds of a sale conducted by the legal owner shall be disposed of as provided in subdivision (e). A notice pursuant to this subdivision may be presented in person, by certified mail, by facsimile transmission, or by electronic mail. The agent of a legal owner acting pursuant to this subdivision shall be licensed, or exempt from licensure, pursuant to Chapter 11 (commencing with Section 7500) of Division 3 of the Business and Professions Code. (d) If the legal owner or the agent of the legal owner does not notify the officer to whom the vehicle is surrendered of its intent to conduct the sale as provided in subdivision (c), the officer shall offer the vehicle for sale at public auction within 60 days of receiving the vehicle. At least 10 days but not more than 20 days prior to the sale, not counting the day of the sale, the officer shall give notice of the sale by advertising once in a newspaper of general circulation published in the city or county, as the case may be, in which the vehicle is located, that notice shall contain a description of the make, year, model, identification number, and license number of the vehicle and the date, time, and location of the sale. For motorcycles, the engine number shall also be included. If there is no newspaper of general circulation published in the county, notice shall be given by posting a notice of sale containing the information required by this subdivision in three of the most Dui Lawyer public places in the city or county in which the vehicle is located, and at the place where the vehicle is to be sold, for 10 consecutive days prior to and including the day of the sale. (e) The proceeds of a sale conducted pursuant to this section shall be disposed of in the following priority: (1) To satisfy the costs of the sale, including costs incurred with respect to the taking and keeping of the vehicle pending sale. (2) To the legal owner in an amount to satisfy the indebtedness owed to the legal owner remaining as of the date of the sale, including accrued interest or finance charges and delinquency charges. (3) To the holder of a subordinate lien or Dui Lawyer encumbrance on the vehicle to satisfy any indebtedness so secured if written notification of demand is received before distribution  Dui Lawyer of the proceeds is completed. The holder of a subordinate lien or encumbrance, if requested, shall reasonably furnish reasonable proof of its interest and, unless it does so on request, is not entitled to distribution pursuant to this paragraph. (4) To any other person who can establish an interest in the vehicle, including a community property interest, to the extent of his or her provable interest. (5) If the vehicle was forfeited as a result of a felony violation of subdivision (a) of Section 191.5 of, or subdivision (a) of Section 192.5 of, the Penal Code, or of Section 23153 that resulted in serious bodily injury to a person other than the defendant, the balance, if any, to the city or county in which the violation occurred, to be deposited in its general fund. (6) Except as provided in paragraph (5), the balance, if any, to the city or county in which the violation occurred, to be expended for community-based adolescent substance abuse treatment services. The person conducting the sale shall disburse the proceeds of the sale as provided in this subdivision, and provide a written accounting regarding the disposition to all persons entitled to or claiming a share of the proceeds, within 15 days after the sale is conducted. (f) If the vehicle to be sold under this section is not of the type that can readily be sold to the public generally, the vehicle shall be destroyed or donated to an eleemosynary institution. (g) No vehicle shall be sold Dui Lawyer pursuant to this section in either of the following circumstances: (1) The vehicle is stolen, unless the identity of the legal and registered owners of the vehicle cannot be reasonably ascertained. (2) The vehicle is owned by another, or there is a community property interest in the vehicle owned by a person other than the defendant and the vehicle is the only vehicle available to the defendant's immediate family that may be operated on the highway with a class 3 or class 4 driver's license. (h) The Legislature finds and declares it to be the public policy of this state that no policy of insurance shall afford benefits that would alleviate the financial detriment suffered by a person as a direct or indirect result of a confiscation of a vehicle pursuant to this section. 23597. (a) Notwithstanding Sections Dui Lawyer 13202.5, 13203, and 13352, a court may order a 10-year revocation of the driver's license of a person who has been Dui Lawyer convicted of three or more separate violations of Section 23152 or 23153, the last of which is punishable under Section 23546, 23550, 23550.5, or 23566. When making this order, the court shall consider all of the following: (1) The person's level of remorse for the acts. (2) The period of time that has elapsed since the person's previous convictions. (3) The person's blood-alcohol level at the time of the violation. (4) The person's participation in Dui Lawyer an alcohol treatment program. (5) The person's risk to traffic or public safety. (6) The person's ability to install a certified ignition interlock device in each motor vehicle that he or she owns or operates. (b) Upon receipt of a duly certified abstract of the record of the court showing the court has ordered a 10-year revocation of a driver' s license pursuant to this section, the department shall revoke the person's driver's license for 10 years, except as provided in subdivision (c). (c) (1) Five years from the date of the last conviction of a violation of Section 23152 or 23153, a person whose license was revoked pursuant to subdivision (a) may apply to the department to have his or her privilege to operate a motor vehicle reinstated, subject to the condition that the person submits the "Verification of Installation" form described in paragraph (2) of subdivision (h) of Section 13386 and agrees to maintain the ignition interlock device as required under subdivision (g) of Section 23575. Notwithstanding Chapter 5 (commencing with Section 23700) or subdivision (f) of Section 23575, the ignition interlock device shall remain on the person's motor vehicle for two years following the reinstatement of the person's driving privilege pursuant to this section. (2) The department shall reinstate the person's license pursuant to paragraph (1), if the person satisfies all of the following conditions: (A) The person was not convicted of any drug- or alcohol-related offenses, under state law, during the driver's license revocation period. (B) The person successfully completed a driving-under-the-influence program, licensed pursuant to Section 11836 of the Health and Safety Code, following the Dui Lawyer date of the last conviction of a violation of Section 23152 or 23153. (C) The person was not convicted of violating Section 14601, 14601.1, 14601.2, 14601.4, or 14601.5 during the driver's license revocation period. (3) The department shall immediately terminate the restriction Dui Lawyer issued pursuant to this section and shall immediately revoke the privilege to operate a motor vehicle of a person who attempts to remove, bypass, or tamper with the device, who has the device removed prior to the termination date of the restriction, or who fails three or more times  Dui Lawyer to comply with any requirement for the maintenance or calibration of the ignition interlock device. The privilege shall remain revoked for the remaining period of the original revocation and until all reinstatement requirements are met. (d) This section shall become operative on January 1, 2012.


VEHICLE CODE
SECTION 23572-23573
23572. (a) If any person is convicted of a violation of Section 23152 and a minor under 14 years of age was a passenger in the vehicle at the time of the offense, the court shall impose the following penalties in addition to any other penalty prescribed: (1) If the person is convicted of a violation of Section 23152 punishable under Section 23536, the Dui Lawyer punishment shall be enhanced by an imprisonment of 48 continuous hours in the county jail, whether or not probation is granted, no part of which shall be stayed. (2) If a Dui Lawyer person is convicted of a violation of Section 23152  Dui Lawyer punishable under Section 23540, the punishment shall be enhanced by an imprisonment of 10 days in the county jail, whether or not probation is granted, no part of which may be stayed. (3) If a person is convicted  Dui Lawyer of a violation of Section 23152 punishable under Section 23546, the punishment shall be enhanced by an imprisonment of 30 days in the county jail, whether or not probation is granted, no part of which may be stayed. (4) If a person is convicted of a violation of Section 23152 which is punished as a misdemeanor under Section 23550, the punishment shall be enhanced by an imprisonment of 90 days in the county jail, whether or not probation is granted, no part of which may be stayed. (b) The driving of a vehicle in which a minor under 14 years of age was a passenger shall be pled and proven. (c) No punishment enhancement  Dui Lawyer shall be imposed pursuant to this section if the person is also convicted of a violation of Section 273a of the Penal Code arising out of the same facts and incident. 23573. (a) The Department of Motor Vehicles, upon receipt of the court's abstract of conviction for a violation listed in subdivision (j), shall inform the convicted person of the requirements of this section and the term for which the person is required to have a certified ignition interlock device installed. The records of the department shall reflect the mandatory use of the device for the term required and the time when the device is required to be installed pursuant to this code. (b) The department shall advise the person that installation of an Dui Lawyer ignition  Dui Lawyer interlock device on a vehicle does not allow the person to drive without a valid driver's license. (c) A person who is notified by the department pursuant to subdivision (a) shall, within 30 days of notification, complete all of the following: (1) Arrange for each vehicle owned or operated by the person to be fitted with an ignition interlock device by a certified ignition interlock device provider under Section 13386. (2) Notify the department and provide to the department proof of installation by submitting the "Verification of Installation" form described in paragraph (2) of subdivision (g) of Section 13386. (3) Pay to the department a fee sufficient to cover the costs of administration of this section, including startup costs, as determined by the department. (d) The department shall place a restriction on the driver's license record of the convicted person that states the driver is restricted to driving only vehicles equipped with a certified ignition interlock device. (e) (1) A person who is notified by the department pursuant to subdivision (a) shall arrange for each  Dui Lawyer vehicle with an ignition interlock device to be serviced by the installer at least once every 60 days in order for the installer to recalibrate and monitor the  Dui Lawyer operation of the device. (2) The installer shall notify the department if the device is removed or indicates that the person has attempted to remove, bypass, or tamper with the device, or if the person fails three or more times to comply with any requirement for the maintenance or calibration of the ignition interlock device. (f) The department shall monitor the installation and maintenance of the ignition Dui Lawyer interlock device installed pursuant to subdivision (a). (g) (1) A person who is notified by the department, pursuant to subdivision (a), is exempt from the requirements of subdivision (c) if all of the following circumstances occur: (A) Within 30 days of the notification, the person certifies to the department all of the following: (i) The person does not own a vehicle. (ii) The person does not have access to a vehicle at his or her residence. (iii) The person no longer has access to the vehicle being driven by the person when he or she was arrested for a violation that subsequently resulted in a conviction for a violation listed in subdivision (j). (iv) The person acknowledges that he or she is only allowed to drive a vehicle that is fitted with an operating ignition interlock device and that he or she is required to have a valid driver's license before he or she can drive. (v) The person is subject to the requirements of this section when he or she purchases or has access to a vehicle. (B) The person's driver's license record has been restricted pursuant to subdivision (d). (C) The person complies with this section immediately upon commencing ownership or operation of a vehicle subject to the required installation of an ignition interlock device. (2) A person who has been granted an exemption pursuant to this subdivision and who subsequently drives a vehicle in violation of the exemption is subject to the penalties of subdivision (i) in addition to any other applicable penalties in law. (h) This section does not permit a person to drive Dui Lawyer without a valid driver's license. (i) A person who is required under subdivision (c) to install an Dui Lawyer ignition interlock device who willfully fails to install the ignition interlock device within the time period required under subdivision (c) is guilty of a misdemeanor and shall be punished by imprisonment in the county jail for not more than six months or by a fine of not more than five thousand dollars ($5,000), or by both that fine and imprisonment. (j) In addition to all other requirements of this code, a person convicted of any of the following violations shall be punished as follows: (1) Upon a conviction of a violation of Section 14601.2, 14601.4, or 14601.5 subsequent to one prior conviction of a violation of Section 23103.5, 23152, or 23153, within a 10-year period, the person shall immediately install a certified ignition interlock device, pursuant to this section, in all vehicles owned or operated by that person for a term of one year. (2) Upon a conviction of a violation of Section 14601.2, 14601.4, or 14601.5 subsequent to two prior convictions of a violation of Section 23103.5, 23152, or 23153, within a 10-year period, or one prior conviction of Section 14601.2, 14601.4, or 14601.5, within a 10-year period, the person shall immediately install a certified ignition interlock device, pursuant to this section, in all vehicles owned or operated by that person for a term of two years. (3) Upon a conviction of a violation of Section 14601.2, 14601.4, or 14601.5 subsequent to three or more prior convictions of a violation of Section 23103.5, 23152, or 23153, within a 10-year period, or two or more prior convictions of Section 14601.2, 14601.4, or 14601.5,  Dui Lawyer within a 10-year period, the person shall immediately install a certified ignition interlock device, pursuant to this section, in all vehicles owned or operated by that person for a term of three years. (k) The department shall notify the court if a person subject to this section has failed to  Dui Lawyer show proof of installation within 30 days of the department informing the person he or she is required to install a certified ignition interlock device. (l) Subdivisions (j), (k), (m), (n), and (o) of Section 23575 apply to this section. (m) The requirements of this section are in addition to any other requirements of law. (n) This section shall become operative on July 1, 2009.


VEHICLE CODE
SECTION 23572-23573
23572. (a) If any person is convicted of a violation of Section 23152 and a minor under 14 years of age was a passenger in the vehicle at the time of the offense, the court shall impose the following penalties in addition to any other penalty prescribed: (1) If the person is convicted of a violation of Section 23152 punishable under Section 23536, the punishment shall be enhanced by an imprisonment of 48 continuous hours in the county jail, whether or not probation is granted, no part Dui Lawyer of which shall be stayed. (2) If a person is convicted of a violation of Section 23152 punishable under Section 23540, the punishment shall be enhanced by an imprisonment of 10 days in the county jail, whether or not probation is granted, no part of which may be stayed.  Dui Lawyer (3) If a person is convicted of a violation of Section 23152 punishable under Section 23546, the punishment shall be enhanced by an imprisonment of 30 days in the county jail, whether or not probation is granted, no part of which may be stayed. (4) If a person is  Dui Lawyer convicted of a violation of Section 23152 which is punished as a misdemeanor under Section 23550, the punishment shall be enhanced by an imprisonment of 90 days in the county jail, whether or not probation is granted, no part of which may be stayed. (b) The driving of a vehicle in which a minor under 14 years of age was a passenger shall be pled and proven. (c) No punishment enhancement shall be imposed pursuant to this section if the person is also convicted of a violation of Section 273a of the Penal Code arising out of the same facts and incident. 23573. (a) The Department of Motor Vehicles, upon receipt of the court's abstract of conviction for a violation listed in subdivision (j), shall inform the convicted person of the requirements of this section and the term for which the person is required to have a certified ignition interlock device installed. The records of the department shall reflect the mandatory use of the device for the term required and the time when the device is required to be installed pursuant to this code. (b) The department shall advise the person that installation of an ignition interlock device on a vehicle does not allow the person to drive without a valid driver's license. (c) A person who is notified by the department pursuant to subdivision (a) shall, within 30 days of notification, complete all of the following: (1) Arrange for each vehicle owned or operated by the Dui Lawyer person to be fitted with an ignition interlock device by a certified ignition interlock device provider under Section 13386. (2) Notify the department and provide to the Dui Lawyer department proof of installation by submitting the "Verification of Installation" form described in paragraph (2) of subdivision (g) of Section 13386. (3) Pay to the department a fee sufficient to cover the costs of administration of this section, including startup costs, as determined by the department. (d) The department shall place a restriction on the driver's license record of the convicted person that states the driver is restricted to driving only vehicles equipped with a certified ignition interlock device. (e) (1) A person who is notified by the department pursuant to subdivision (a) shall arrange for each vehicle with an ignition interlock device to be serviced by the installer at least once every 60 days in order for the installer to recalibrate and monitor the operation of the device. (2) The installer shall notify the department if the device is removed or indicates that the person has attempted to remove, bypass, or tamper with the device, or if the person fails three or more times to comply with any requirement for the maintenance or calibration of the ignition interlock device. (f) The department shall  Dui Lawyer monitor the installation and maintenance of the ignition interlock device installed pursuant to subdivision  Dui Lawyer (a). (g) (1) A person who is notified by the department, pursuant to subdivision (a), is exempt from the requirements of subdivision (c) if all of the following circumstances occur: (A) Within 30 days of the notification, the person certifies to the department all of the following: (i) The person does not own a vehicle. (ii) The person does not have access to a vehicle at his or her residence. (iii) The person no longer has access to the vehicle being driven by the person when he or she was arrested for a violation that subsequently resulted in a conviction for a violation listed in subdivision (j). (iv) The person acknowledges that he or she is only allowed to drive a vehicle that is fitted with an operating ignition interlock device and that he or she is required to have a valid driver's license before he or she can drive. (v) The person is subject to the requirements of this section when he or she purchases or has access to a vehicle. (B) The person's driver's license record has been restricted pursuant to subdivision (d). (C) The person complies with this section immediately upon commencing ownership or operation of a vehicle subject to the required installation of an ignition interlock device. (2) A person who has been granted an exemption pursuant to this subdivision and who subsequently drives a vehicle in violation of the exemption is subject to the penalties of subdivision (i) in addition to any other applicable penalties in law. (h) This section does not permit a person to drive without a valid driver's license. (i) A person who is required under subdivision (c) to install an ignition interlock device who willfully fails to install the ignition interlock device within the time period required under subdivision (c) is guilty of a misdemeanor and shall be punished by imprisonment in the county jail Dui Lawyer for not more than six months or by a fine of not more than five thousand dollars ($5,000), or by both that fine and imprisonment. (j) In addition to all other requirements of this code, a person convicted of any of the following violations shall be punished as follows: (1) Upon a conviction of a violation of Section 14601.2, 14601.4, or 14601.5 subsequent to one prior conviction of a violation of Section 23103.5, 23152, or 23153, within a 10-year period, the person shall immediately install a certified ignition interlock device, pursuant to this section, in all vehicles  Dui Lawyer owned or operated by that person for a term of one year. (2) Upon a conviction of a violation of Section 14601.2, 14601.4, or 14601.5 subsequent to two prior convictions of a violation of Section 23103.5, 23152, or 23153, within a 10-year period, or one prior conviction of Section 14601.2, 14601.4, or 14601.5, within a 10-year period, the person shall immediately install a certified ignition interlock device, pursuant to this section, in all vehicles owned or operated by that person for a term of two years. (3) Upon a conviction of a violation of Section 14601.2, 14601.4, or 14601.5 subsequent to three or more prior convictions of a violation of Section 23103.5, 23152, or 23153, within a 10-year period, or two or more prior convictions of Section 14601.2, 14601.4, or 14601.5, within a 10-year period, the person shall immediately install a certified ignition interlock device, pursuant to this section, in all vehicles owned or operated by that person for a term of three years. (k) The department shall notify the court if a person subject to this section has failed to show proof of installation within 30 days of the department informing the person he or she is required to install a certified ignition interlock device. (l) Subdivisions (j), (k), (m), (n), and (o) of Section 23575 apply to this section. (m) The requirements of this section are in addition to any other requirements of law. (n) This section shall become operative on July 1, 2009.


VEHICLE CODE
SECTION 23536-23552
23536. (a) If a person is convicted of a first violation of Section 23152, that person Dui Lawyer 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  Dui Lawyer 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 Dui Lawyer 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. 23538. (a) (1) If the court  Dui Lawyer grants probation to person punished under Section 23536, in addition to the provisions of Section 23600 and any other terms and conditions imposed by the court, the court shall impose as a condition of probation that the person pay a fine of at least three hundred ninety dollars ($390), but not more than one thousand dollars ($1,000). The court may also impose, as a condition of probation,  Dui Lawyer that the person be confined in a county jail for at least 48 hours, but not more than six months. (2) 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. (3) 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  Dui Lawyer 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. (b) In any county where the board of supervisors has approved, and the State Department of Health Care Services has licensed, a program or programs described in Section 11837.3 of the Health and Safety Code, the court shall also impose as a condition of probation that the driver shall enroll and participate in, and successfully complete a driving-under-the-influence program, licensed pursuant to Section 11836 of the Health and Safety Code, in the  Dui Lawyer driver's county of residence or employment, as designated by the court. For the purposes of this subdivision, enrollment in, participation in, and completion of an approved program shall be subsequent to the date of the current violation. Credit may not be given for any program activities completed prior to the date of the current violation. (1) The court shall refer a first offender whose blood-alcohol concentration was less than 0.20 percent, by weight, to participate for at least three months or longer, as ordered by the court, in a licensed program that consists of at least 30 hours of program activities, including those education, group counseling, and individual interview sessions described in Chapter 9 (commencing with Section 11836) of Part 2 of Division 10.5 of the Health and Safety Code. (2) The court shall refer a first offender whose blood-alcohol concentration was 0.20 percent or more, by weight, or who refused to take a chemical test, to participate for at least nine months or longer, as ordered by the court, in a licensed program that consists of at least 60 hours of program activities, including those education, group counseling, and individual interview sessions described in Chapter 9 (commencing with Section 11836) of Part 2 of Division 10.5 of the Health and Safety Code. (3) The court shall advise the person at the time of sentencing that the  Dui Lawyer driving privilege shall not be restored until proof satisfactory to the department of successful completion of a driving-under-the-influence program of the length required under this code that is licensed pursuant to Section 11836 of the Health and Safety Code has been received in the department's headquarters. (c) (1) The court shall revoke the person's probation pursuant to Section 23602, except for good cause shown, for the failure to enroll in, participate in, or complete a program specified in subdivision (b). (2) The court, in establishing reporting requirements, shall consult with the county alcohol program administrator. The county alcohol program administrator shall coordinate the reporting requirements Dui Lawyer with the department and with the State Department of Health Care Services. That reporting shall ensure that all persons who, after being ordered to attend and complete a program, may be identified for either (A) failure to enroll in, or failure to successfully complete, the program, or (B) successful completion of the program as ordered. 23540. (a) If a person is convicted of a violation of Section 23152 and the offense occurred within 10 years of a separate violation of Section 23103, as specified in Section 23103.5, 23152, or 23153, that resulted in a conviction, that person shall be punished by imprisonment in the county jail for not less than 90 days nor more than one year and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000). The person's privilege to operate a motor  Dui Lawyer vehicle shall be suspended by the department pursuant to paragraph (3) of subdivision (a) of Section 13352. The court shall require the person to surrender the driver's license to the court in accordance with Section 13550. (b) 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 (3) of subdivision (a) of Section 13352, the court may disallow the issuance of a restricted driver's license required under Section 13352.5. (c) This section shall become operative on September 20, 2005. 23542. (a) (1) If the court grants probation to a person punished under Section 23540, in addition to the provisions of Section 23600 and any other terms and conditions imposed by the court, the court shall impose as conditions of probation that the person be vconfined in county jail and fined under either of the following: (A) For at least 10 days, but not more than one year, and pay a fine of at least three hundred ninety dollars ($390), but not more than one thousand dollars ($1,000). (B) For at least 96 hours, but not more than one year, and pay a fine of at least three hundred ninety dollars ($390), but not more than one thousand dollars ($1,000). A sentence of 96 hours of confinement shall be served in two increments consisting of a continuous 48 hours each. The two 48-hour increments may be served nonconsecutively. (2) The person's privilege to operate a motor vehicle shall be suspended by the department under paragraph (3) of subdivision (a) of Section 13352. The court shall require the person to surrender the driver's license to the court in accordance with Section 13550. (b) In addition to the conditions specified in subdivision (a), the court shall require the person to do either of the following: (1) Enroll and participate, for at least 18 months subsequent to the date of the underlying violation and in a manner satisfactory to the court, in a driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code, as designated by the court. The person shall complete the entire program subsequent to, and shall not be given any credit for any program activities completed prior to, the date of the current violation. The program shall provide for persons who cannot afford the program fee pursuant to paragraph (2) of subdivision (b) of Section 11837.4 of the Health and Safety Code in order to enable those persons to participate. (2) Enroll and participate, for at least 30 months subsequent to the date of the underlying violation and in a manner satisfactory to the court, in a driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code. The person shall complete the entire program subsequent to, and shall not be given any credit for any program activities completed prior to, the date of the current violation. (c) The court shall advise the person at the time of sentencing that the driving privilege shall not be restored until proof satisfactory to the Department of Motor Vehicles of successful completion of a driving-under-the-influence program of the length required under this code licensed pursuant to Section 11836 of the Health and Safety Code has been received in the department's headquarters. (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 (3) of subdivision (a) of Section 13352, the court may disallow the issuance of a restricted driver's license required under Section 13352.5. (e) This section shall become operative on September 20, 2005. 23546. (a) If a person is convicted of a violation of Section 23152 and the offense occurred within Dui Lawyer 10 years of two separate violations of Section 23103, as specified in Section 23103.5, 23152, or 23153, or any combination thereof, that resulted in convictions, that person shall be punished by imprisonment in the county jail for not less than 120 days nor more than one year and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000). The person's privilege to operate a motor vehicle shall be revoked by the Department of Motor Vehicles as required in paragraph (5) of subdivision (a) of Section 13352. The court shall require the person to surrender his or her driver's license to the court in accordance with Section 13550. (b) A person convicted of a violation of Section 23152 punishable under this section shall be designated as a habitual traffic offender for a period of three years, subsequent  Dui Lawyer to the conviction. The person shall be advised of this designation pursuant to subdivision (b) of Section 13350. 23548. (a) (1) If the court grants probation to any person punished under Section 23546, in addition to the provisions of Section 23600 and any other terms and conditions imposed by the court, the court shall impose as conditions of probation that the person be confined in the county jail for at least 120 days but not more than one year and pay a fine of at least three hundred ninety dollars ($390) but not more than one thousand dollars ($1,000). (2) The Dui Lawyer person's privilege to operate a motor vehicle shall be revoked by the department under paragraph (5) of subdivision (a) of Section 13352. The court shall require the person to surrender the driver's license to the court in accordance with Section 13550. (b) In addition to subdivision (a), if the court grants probation to any person punished under Section 23546, the court may order as a condition of probation that the person participate, for at least 30 months subsequent to the underlying conviction and in a manner satisfactory to the court, in a driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code. In lieu of the minimum term of imprisonment specified in subdivision (a), the court shall impose as a condition of probation under this subdivision that the person be confined in the county jail for  Dui Lawyer at least 30 days but not more than one year. The court shall not order the treatment prescribed by this subdivision unless the person makes a specific request and shows good cause for the order, whether or not the person has previously completed a treatment program pursuant to paragraph (4) of subdivision (b) of Section 23542 or paragraph (4) of subdivision (b) of Section 23562. In order to enable all required persons to participate, each person shall pay the program costs commensurate with the person's ability to pay as determined pursuant to Section 11837.4 of the Health and Safety Code. No condition of probation required pursuant to this subdivision is a basis for reducing any other probation requirement in this section or Section 23600 or for avoiding the mandatory license revocation provisions of paragraph (5) of subdivision (a) of Section 13352. (c) In addition to the provisions of Section 23600 and subdivision (a), if the court grants probation to any person punished under Section 23546 who has not previously completed a treatment program pursuant to paragraph (4) of subdivision (b) of Section 23542 or paragraph (4) of subdivision (b) of Section 23562, and unless the person is ordered to participate in and complete a driving-under-the-influence program under subdivision (b), the court shall impose as a condition of probation that the person, subsequent to the date of the current violation, enroll and participate, for at least 18 months and in a manner satisfactory to the court, in a driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code, as designated by the court. The person shall complete the entire program subsequent to, and shall not be given any credit for program activities completed prior to, the date of the current violation. Any person who has previously completed a 12-month or 18-month program licensed pursuant to Section 11836 of the Health and Safety Code shall not be eligible for referral pursuant to this subdivision unless a 30-month licensed driving-under-the-influence program is not available for referral in the county of the person's residence or employment. The program shall provide for persons who cannot afford the program fee pursuant to paragraph (2) of subdivision (b) of Section 11837.4 of the Health and Safety Code in order to enable those persons to participate. No condition of probation required pursuant to this subdivision is a basis for reducing any other probation requirement in this section or Section 23600 or for avoiding the mandatory license revocation provisions of paragraph (5) of subdivision (a) of Section 13352. (d) The court shall advise the person at the time of sentencing that the driving privilege may not be restored until the person provides proof satisfactory to the department of successful completion of a driving-under-the-influence program of the length required under this code that is licensed pursuant to Section 11836 of the Health and Safety Code. (e) This section shall become operative on September 20, 2005. 23550. (a) If a person is convicted of a violation of Section 23152 and the offense occurred within 10 years of three or more separate violations of Section 23103, as specified in Section 23103.5, or Section 23152 or 23153, or any combination thereof, that resulted in convictions, that person shall be punished by imprisonment pursuant to subdivision (h) of Section Dui Lawyer 1170 of the Penal Code, or in a county jail for not less than 180 days nor more than one year, and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000). The person's privilege to operate a motor vehicle shall be revoked by the Department of Motor Vehicles pursuant to paragraph (7) of subdivision (a) of Section 13352. The court shall require the person to surrender the driver's license to the court in accordance with Section 13550. (b) A person convicted of a violation of Section 23152 punishable under this section shall be designated as a habitual traffic offender for a period of three years, subsequent to the conviction. The person shall be advised of this designation pursuant to subdivision (b) of Section 13350. 23550.5. (a) A person is guilty of a public offense, punishable by imprisonment in the state prison or confinement in a county jail for not more than one year and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000) if that person is convicted of a violation of Section 23152 or 23153, and the offense occurred within 10 years of any of the following: (1) A separate violation of Section 23152 that was punished as a felony under Section 23550 or this section, or both, or under former Section 23175 or former Section 23175.5, or both. (2) A separate violation of Section 23153 that was punished as a felony. (3) A separate violation of paragraph (1) of subdivision (c) of Section 192 of the Penal Code that was punished as a felony. (b) Each person who, having previously been convicted of a violation of subdivision (a) of Section 191.5 of the Penal Code, a felony violation of subdivision (b) of Section 191.5, or a violation of subdivision (a) of Section 192.5 of the Penal Code, is subsequently convicted of a violation of Section 23152 or 23153 is guilty of a public offense punishable by imprisonment in the state prison or confinement in a county jail for not more than one year and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000). (c) The privilege to operate a motor vehicle of a person convicted of a violation that is punishable under subdivision (a) or (b) shall be revoked by the department pursuant to paragraph (7) of subdivision (a) of Section 13352, unless paragraph (6) of subdivision (a) of Section 13352 is also applicable, in which case the privilege shall be revoked under that provision. The court shall require the person to surrender the driver's license to the court in accordance with Section 13550. (d) A person convicted of a violation of Section 23152 or 23153 that is punishable under this section shall be designated as a habitual traffic offender for a period of three years, subsequent to the conviction. The person shall be advised of this designation under subdivision (b) of Section 13350. 23552. (a) (1) If the court grants probation to a person punished under Section 23550, in addition to the provisions of Section 23600 and any other terms and conditions imposed by the court, the court shall impose as conditions of probation that the person be confined in a county jail for at least 180 days but not more than one year and pay a fine of at least three hundred ninety dollars ($390) but not more than one thousand dollars ($1,000). (2) The person's privilege to operate a motor vehicle shall be revoked by the department under paragraph (7) of subdivision (a) of Section 13352. The court shall require the person to surrender the driver's license to the court in accordance with Section 13550. (b) In addition to subdivision (a), if the court grants probation to any person punished under Section 23550, the court may order as a condition of probation that the person participate, for at least 30 months subsequent to the underlying conviction and in a manner satisfactory to the court, in a driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code. In lieu of the minimum term of imprisonment in subdivision (a), the court shall impose as a condition of probation under this subdivision that the person be confined in the county jail for at least 30 days but not more than one year. The court shall not order the treatment prescribed by this subdivision unless the person makes a specific request and shows good cause for the order, whether or not the person has previously completed a treatment program pursuant to subdivision (b) of Section 23542 or paragraph (4) of subdivision (b) of Section 23562. In order to enable all required persons to participate, each person shall pay the program costs commensurate with the person's ability to pay as determined pursuant to Section 11837.4 of the Health and Safety Code. No condition of probation required pursuant to this subdivision is a basis for reducing any other probation requirement in this section or Section 23600 or for avoiding the mandatory license revocation provisions of paragraph (7) of subdivision (a) of Section 13352. (c) In addition to Section 23600 and subdivision (a), if the court grants probation to any person punished under Section 23550 who has not previously completed a treatment program pursuant to subdivision (b) of Section 23542 or paragraph (4) of subdivision (b) of Section 23562, and unless the person is ordered to participate in, and complete, a program under subdivision (b), the court shall impose as a condition of probation that the person, subsequent to the date of the current violation, enroll in and participate, for at least 18 months and in a manner satisfactory to the court, in a driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code, as designated by the court. The person shall complete the entire program subsequent to, and shall not be given any credit for program activities completed prior to, the date of the current violation. A person who has previously completed a 12-month or 18-month driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code shall not be eligible for referral pursuant to this subdivision unless a 30-month driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code is not available for referral in the county of the person's residence or employment. A condition of probation required pursuant to this subdivision is not a basis for reducing any other probation requirement in this section or Section 23600 or for avoiding the mandatory license revocation provisions of paragraph (7) of subdivision (a) of Section 13352. (d) The court shall advise the person at the time of sentencing that the driving privilege may not be restored until the person provides proof satisfactory to the department of successful completion of a driving-under-the-influence program of the length required under this code that is licensed pursuant to Section 11836 of the Health and Safety Code.


VEHICLE CODE
SECTION 23536-23552
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. 23538. (a) (1) If the court grants probation to person punished under Section 23536, in addition to the provisions of Section 23600 and any other terms and conditions imposed by the court, the court shall impose as a condition of probation that the person pay a fine of at least three hundred ninety dollars ($390), but not more than one thousand dollars ($1,000). The court may also impose, as a condition of probation, that the person be confined in a county jail for at least 48 hours, but not more than six months. (2) 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. (3) 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. (b) In any county where the board of supervisors has approved, and the State Department of Health Care Services has licensed, a program or programs described in Section 11837.3 of the Health and Safety Code, the court shall also impose as a condition of probation that the driver shall enroll and participate in, and successfully complete a driving-under-the-influence program, licensed pursuant to Section 11836 of the Health and Safety Code, in the driver's county of residence or employment, as designated by the court. For the purposes of this subdivision, enrollment in, participation in, and completion of an approved program shall be subsequent to the date of the current violation. Credit may not be given for any program activities completed prior to the date of the current violation. (1) The court shall refer a first offender whose blood-alcohol concentration was less than 0.20 percent, by weight, to participate for at least three months or longer, as ordered by the court, in a licensed program that consists of at least 30 hours of program activities, including those education, group counseling, and individual interview sessions described in Chapter 9 (commencing with Section 11836) of Part 2 of Division 10.5 of the Health and Safety Code. (2) The court shall refer a first offender whose blood-alcohol concentration was 0.20 percent or more, by weight, or who refused to take a chemical test, to participate for at least nine months or longer, as ordered by the court, in a licensed program that consists of at least 60 hours of program activities, including those education, group counseling, and individual interview sessions described in Chapter 9 (commencing with Section 11836) of Part 2 of Division 10.5 of the Health and Safety Code. (3) The court shall advise the person at the time of sentencing that the driving privilege shall not be restored until proof satisfactory to the department of successful completion of a driving-under-the-influence program of the length required under this code that is licensed pursuant to Section 11836 of the Health and Safety Code has been received in the department's headquarters. (c) (1) The court shall revoke the person's probation pursuant to Section 23602, except for good cause shown, for the failure to enroll in, participate in, or complete a program specified in subdivision (b). (2) The court, in establishing reporting requirements, shall consult with the county alcohol program administrator. The county alcohol program administrator shall coordinate the reporting requirements with the department and with the State Department of Health Care Services. That reporting shall ensure that all persons who, after being ordered to attend and complete a program, may be identified for either (A) failure to enroll in, or failure to successfully complete, the program, or (B) successful completion of the program as ordered. 23540. (a) If a person is convicted of a violation of Section 23152 and the offense occurred within 10 years of a separate violation of Section 23103, as specified in Section 23103.5, 23152, or 23153, that resulted in a conviction, that person shall be punished by imprisonment in the county jail for not less than 90 days nor more than one year and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000). The person's privilege to operate a motor vehicle shall be suspended by the department pursuant to paragraph (3) of subdivision (a) of Section 13352. The court shall require the person to surrender the driver's license to the court in accordance with Section 13550. (b) 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 (3) of subdivision (a) of Section 13352, the court may disallow the issuance of a restricted driver's license required under Section 13352.5. (c) This section shall become operative on September 20, 2005. 23542. (a) (1) If the court grants probation to a person punished under Section 23540, in addition to the provisions of Section 23600 and any other terms and conditions imposed by the court, the court shall impose as conditions of probation that the person be confined in county jail and fined under either of the following: (A) For at least 10 days, but not more than one year, and pay a fine of at least three hundred ninety dollars ($390), but not more than one thousand dollars ($1,000). (B) For at least 96 hours, but not more than one year, and pay a fine of at least three hundred ninety dollars ($390), but not more than one thousand dollars ($1,000). A sentence of 96 hours of confinement shall be served in two increments consisting of a continuous 48 hours each. The two 48-hour increments may be served nonconsecutively. (2) The person's privilege to operate a motor vehicle shall be suspended by the department under paragraph (3) of subdivision (a) of Section 13352. The court shall require the person to surrender the driver's license to the court in accordance with Section 13550. (b) In addition to the conditions specified in subdivision (a), the court shall require the person to do either of the following: (1) Enroll and participate, for at least 18 months subsequent to the date of the underlying violation and in a manner satisfactory to the court, in a driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code, as designated by the court. The person shall complete the entire program subsequent to, and shall not be given any credit for any program activities completed prior to, the date of the current violation. The program shall provide for persons who cannot afford the program fee pursuant to paragraph (2) of subdivision (b) of Section 11837.4 of the Health and Safety Code in order to enable those persons to participate. (2) Enroll and participate, for at least 30 months subsequent to the date of the underlying violation and in a manner satisfactory to the court, in a driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code. The person shall complete the entire program subsequent to, and shall not be given any credit for any program activities completed prior to, the date of the current violation. (c) The court shall advise the person at the time of sentencing that the driving privilege shall not be restored until proof satisfactory to the Department of Motor Vehicles of successful completion of a driving-under-the-influence program of the length required under this code licensed pursuant to Section 11836 of the Health and Safety Code has been received in the department's headquarters. (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 (3) of subdivision (a) of Section 13352, the court may disallow the issuance of a restricted driver's license required under Section 13352.5. (e) This section shall become operative on September 20, 2005. 23546. (a) If a person is convicted of a violation of Section 23152 and the offense occurred within 10 years of two separate violations of Section 23103, as specified in Section 23103.5, 23152, or 23153, or any combination thereof, that resulted in convictions, that person shall be punished by imprisonment in the county jail for not less than 120 days nor more than one year and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000). The person's privilege to operate a motor vehicle shall be revoked by the Department of Motor Vehicles as required in paragraph (5) of subdivision (a) of Section 13352. The court shall require the person to surrender his or her driver's license to the court in accordance with Section 13550. (b) A person convicted of a violation of Section 23152 punishable under this section shall be designated as a habitual traffic offender for a period of three years, subsequent to the conviction. The person shall be advised of this designation pursuant to subdivision (b) of Section 13350. 23548. (a) (1) If the court grants probation to any person punished under Section 23546, in addition to the provisions of Section 23600 and any other terms and conditions imposed by the court, the court shall impose as conditions of probation that the person be confined in the county jail for at least 120 days but not more than one year and pay a fine of at least three hundred ninety dollars ($390) but not more than one thousand dollars ($1,000). (2) The person's privilege to operate a motor vehicle shall be revoked by the department under paragraph (5) of subdivision (a) of Section 13352. The court shall require the person to surrender the driver's license to the court in accordance with Section 13550. (b) In addition to subdivision (a), if the court grants probation to any person punished under Section 23546, the court may order as a condition of probation that the person participate, for at least 30 months subsequent to the underlying conviction and in a manner satisfactory to the court, in a driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code. In lieu of the minimum term of imprisonment specified in subdivision (a), the court shall impose as a condition of probation under this subdivision that the person be confined in the county jail for at least 30 days but not more than one year. The court shall not order the treatment prescribed by this subdivision unless the person makes a specific request and shows good cause for the order, whether or not the person has previously completed a treatment program pursuant to paragraph (4) of subdivision (b) of Section 23542 or paragraph (4) of subdivision (b) of Section 23562. In order to enable all required persons to participate, each person shall pay the program costs commensurate with the person's ability to pay as determined pursuant to Section 11837.4 of the Health and Safety Code. No condition of probation required pursuant to this subdivision is a basis for reducing any other probation requirement in this section or Section 23600 or for avoiding the mandatory license revocation provisions of paragraph (5) of subdivision (a) of Section 13352. (c) In addition to the provisions of Section 23600 and subdivision (a), if the court grants probation to any person punished under Section 23546 who has not previously completed a treatment program pursuant to paragraph (4) of subdivision (b) of Section 23542 or paragraph (4) of subdivision (b) of Section 23562, and unless the person is ordered to participate in and complete a driving-under-the-influence program under subdivision (b), the court shall impose as a condition of probation that the person, subsequent to the date of the current violation, enroll and participate, for at least 18 months and in a manner satisfactory to the court, in a driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code, as designated by the court. The person shall complete the entire program subsequent to, and shall not be given any credit for program activities completed prior to, the date of the current violation. Any person who has previously completed a 12-month or 18-month program licensed pursuant to Section 11836 of the Health and Safety Code shall not be eligible for referral pursuant to this subdivision unless a 30-month licensed driving-under-the-influence program is not available for referral in the county of the person's residence or employment. The program shall provide for persons who cannot afford the program fee pursuant to paragraph (2) of subdivision (b) of Section 11837.4 of the Health and Safety Code in order to enable those persons to participate. No condition of probation required pursuant to this subdivision is a basis for reducing any other probation requirement in this section or Section 23600 or for avoiding the mandatory license revocation provisions of paragraph (5) of subdivision (a) of Section 13352. (d) The court shall advise the person at the time of sentencing that the driving privilege may not be restored until the person provides proof satisfactory to the department of successful completion of a driving-under-the-influence program of the length required under this code that is licensed pursuant to Section 11836 of the Health and Safety Code. (e) This section shall become operative on September 20, 2005. 23550. (a) If a person is convicted of a violation of Section 23152 and the offense occurred within 10 years of three or more separate violations of Section 23103, as specified in Section 23103.5, or Section 23152 or 23153, or any combination thereof, that resulted in convictions, that person shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code, or in a county jail for not less than 180 days nor more than one year, and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000). The person's privilege to operate a motor vehicle shall be revoked by the Department of Motor Vehicles pursuant to paragraph (7) of subdivision (a) of Section 13352. The court shall require the person to surrender the driver's license to the court in accordance with Section 13550. (b) A person convicted of a violation of Section 23152 punishable under this section shall be designated as a habitual traffic offender for a period of three years, subsequent to the conviction. The person shall be advised of this designation pursuant to subdivision (b) of Section 13350. 23550.5. (a) A person is guilty of a public offense, punishable by imprisonment in the state prison or confinement in a county jail for not more than one year and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000) if that person is convicted of a violation of Section 23152 or 23153, and the offense occurred within 10 years of any of the following: (1) A separate violation of Section 23152 that was punished as a felony under Section 23550 or this section, or both, or under former Section 23175 or former Section 23175.5, or both. (2) A separate violation of Section 23153 that was punished as a felony. (3) A separate violation of paragraph (1) of subdivision (c) of Section 192 of the Penal Code that was punished as a felony. (b) Each person who, having previously been convicted of a violation of subdivision (a) of Section 191.5 of the Penal Code, a felony violation of subdivision (b) of Section 191.5, or a violation of subdivision (a) of Section 192.5 of the Penal Code, is subsequently convicted of a violation of Section 23152 or 23153 is guilty of a public offense punishable by imprisonment in the state prison or confinement in a county jail for not more than one year and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000). (c) The privilege to operate a motor vehicle of a person convicted of a violation that is punishable under subdivision (a) or (b) shall be revoked by the department pursuant to paragraph (7) of subdivision (a) of Section 13352, unless paragraph (6) of subdivision (a) of Section 13352 is also applicable, in which case the privilege shall be revoked under that provision. The court shall require the person to surrender the driver's license to the court in accordance with Section 13550. (d) A person convicted of a violation of Section 23152 or 23153 that is punishable under this section shall be designated as a habitual traffic offender for a period of three years, subsequent to the conviction. The person shall be advised of this designation under subdivision (b) of Section 13350. 23552. (a) (1) If the court grants probation to a person punished under Section 23550, in addition to the provisions of Section 23600 and any other terms and conditions imposed by the court, the court shall impose as conditions of probation that the person be confined in a county jail for at least 180 days but not more than one year and pay a fine of at least three hundred ninety dollars ($390) but not more than one thousand dollars ($1,000). (2) The person's privilege to operate a motor vehicle shall be revoked by the department under paragraph (7) of subdivision (a) of Section 13352. The court shall require the person to surrender the driver's license to the court in accordance with Section 13550. (b) In addition to subdivision (a), if the court grants probation to any person punished under Section 23550, the court may order as a condition of probation that the person participate, for at least 30 months subsequent to the underlying conviction and in a manner satisfactory to the court, in a driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code. In lieu of the minimum term of imprisonment in subdivision (a), the court shall impose as a condition of probation under this subdivision that the person be confined in the county jail for at least 30 days but not more than one year. The court shall not order the treatment prescribed by this subdivision unless the person makes a specific request and shows good cause for the order, whether or not the person has previously completed a treatment program pursuant to subdivision (b) of Section 23542 or paragraph (4) of subdivision (b) of Section 23562. In order to enable all required persons to participate, each person shall pay the program costs commensurate with the person's ability to pay as determined pursuant to Section 11837.4 of the Health and Safety Code. No condition of probation required pursuant to this subdivision is a basis for reducing any other probation requirement in this section or Section 23600 or for avoiding the mandatory license revocation provisions of paragraph (7) of subdivision (a) of Section 13352. (c) In addition to Section 23600 and subdivision (a), if the court grants probation to any person punished under Section 23550 who has not previously completed a treatment program pursuant to subdivision (b) of Section 23542 or paragraph (4) of subdivision (b) of Section 23562, and unless the person is ordered to participate in, and complete, a program under subdivision (b), the court shall impose as a condition of probation that the person, subsequent to the date of the current violation, enroll in and participate, for at least 18 months and in a manner satisfactory to the court, in a driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code, as designated by the court. The person shall complete the entire program subsequent to, and shall not be given any credit for program activities completed prior to, the date of the current violation. A person who has previously completed a 12-month or 18-month driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code shall not be eligible for referral pursuant to this subdivision unless a 30-month driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code is not available for referral in the county of the person's residence or employment. A condition of probation required pursuant to this subdivision is not a basis for reducing any other probation requirement in this section or Section 23600 or for avoiding the mandatory license revocation provisions of paragraph (7) of subdivision (a) of Section 13352. (d) The court shall advise the person at the time of sentencing that the driving privilege may not be restored until the person provides proof satisfactory to the department of successful completion of a driving-under-the-influence program of the length required under this code that is licensed pursuant to Section 11836 of the Health and Safety Code.


VEHICLE CODE
SECTION 23520-23521
23520. (a) Whenever, in any county specified in subdivision (b), a judge of a juvenile court, a juvenile hearing officer, or referee of a juvenile court finds that a person has committed a first violation of Section 23152 or 23153, the person shall be required to participate in and successfully complete an alcohol or drug education program, or both of those programs, as designated by the court. The expense of the person's attendance in the program shall be paid by the person's parents or guardian so long as the person is under the age of 18 years, and shall be paid by the person thereafter. However, in approving the program, each county shall require the program to provide for the payment of the fee for the program in installments by any person who cannot afford to pay the full fee at the commencement of the program and shall require the program to provide for the waiver of the fee for any person who is indigent, as determined by criteria for indigency established by the board of supervisors. Whenever it can be done without substantial additional cost, each county shall require that the program be provided for juveniles at a separate location from, or at a different time of day than, alcohol and drug education programs for adults. (b) This section applies only in those counties that have one or more alcohol or drug education programs certified by the county alcohol program administrator and approved by the board of supervisors. 23521. (a) Any finding of a juvenile court judge, juvenile hearing officer, or referee of a juvenile court of a commission of an offense in any state, territory, possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or the Dominion of Canada that, if committed in this state, would be a violation of Section 23152, is a conviction of a violation of Section 23152 for the purposes of Sections 13352, 13352.3, 13352.4, and 13352.5, and the finding of a juvenile court judge, juvenile hearing officer, or referee of a juvenile court of a commission of an offense that, if committed in this state, would be a violation of Section 23153 is a conviction of a violation of Section 23153 for the purposes of Sections 13352 and 13352.3. (b) This section shall become operative on September 20, 2005.


VEHICLE CODE
SECTION 23509-23518.5
23509. This article shall be known and may be cited as the "Youthful Drunk Driver Visitation Program Act." 23510. The Legislature finds and declares all of the following: (a) Young drivers often do not realize the consequences of drinking alcohol or ingesting any other drugs, whether legal or not, and driving a motor vehicle while their physical capabilities to drive safely are impaired by those substances. (b) Young drivers who use alcohol or other drugs are likely to become dependent on those substances and prompt intervention is needed to protect other persons, as well as the young driver, from death or serious injury. (c) The conviction of a young driver for driving under the influence of an alcoholic beverage, a drug, or both, identifies that person as a risk to the health and safety of others, as well as that young driver, because of the young driver's inability to control his or her conduct. (d) It has been demonstrated that close observation of the effects on others of alcohol and other drugs, both chronic and acute, by a young driver convicted of driving under the influence has a marked effect on recidivism and should therefore be encouraged by the courts, prehospital emergency medical care personnel, and other officials charged with cleaning up the carnage and wreckage caused by drunk drivers. (e) The program prescribed in this article provides guidelines for the operation of an intensive program to discourage recidivism by convicted young drunk drivers. 23512. For the purposes of this article, "program" means the Youthful Drunk Driver Visitation Program prescribed in this article. 23514. (a) If a person is found to be in violation of Section 23140, is convicted of, or is adjudged a ward of the juvenile court for, a violation of Section 21200.5, 23140, or 23152 punishable under Section 23536, or Section 23220, 23221, or 23222, subdivision (a) or (b) of Section 23224, or Section 23225 or 23226, and is granted probation, the court may order, with the consent of the defendant or ward, as a term and condition of probation in addition to any other term and condition required or authorized by law, that the defendant or ward participate in the program. (b) The court shall give preference for participation in the program to defendants or wards who were less than 21 years of age at the time of the offense if the facilities of the program in the jurisdiction are limited to fewer than the number of defendants or wards eligible and consenting to participate. (c) The court shall require that the defendant or ward not drink any alcoholic beverage at all before reaching the age of 21 years and not use illegal drugs. 23516. The court shall investigate and consult with the defendant or ward, defendant's or ward's counsel, if any, and any proposed supervisor of a visitation under the program, and the court may consult with any other person whom the court finds may be of value, including, but not limited to, the defendant's or ward's parents or other family members, in order to ascertain that the defendant or ward is suitable for the program, that the visitation will be educational and meaningful to the defendant or ward, and that there are no physical, emotional, or mental reasons to believe the program would not be appropriate or would cause any injury to the defendant or ward. 23517. (a) To the extent that personnel and facilities are made available to the court, the court may include a requirement for supervised visitation by the defendant or ward to all, or any, of the following: (1) A trauma facility, as defined in Section 1798.160 of the Health and Safety Code, a base hospital designated pursuant to Section 1798.100 or 1798.101 of the Health and Safety Code, or a general acute care hospital having a basic emergency medical services special permit issued pursuant to subdivision (c) of Section 1277 of the Health and Safety Code that regularly receives victims of vehicle accidents, between the hours of 10 p.m. and 2 a.m. on a Friday or Saturday night to observe appropriate victims of vehicle accidents involving drinking drivers, under the supervision of any of the following: (A) A registered nurse trained in providing emergency trauma care or prehospital advanced life support. (B) An emergency room physician. (C) An emergency medical technician-paramedic or an emergency medical technician II. (2) A facility that cares for advanced alcoholics, such as a chemical dependency recovery hospital, as defined in Section 1250.3 of the Health and Safety Code, to observe persons in the terminal stages of alcoholism or drug abuse, under the supervision of appropriately licensed medical personnel. (3) If approved by the county coroner, the county coroner's office or the county morgue to observe appropriate victims of vehicle accidents involving drinking drivers, under the supervision of the coroner or a deputy coroner. (b) As used in this section, "appropriate victims" means victims whose condition is determined by the visitation supervisor to demonstrate the results of accidents involving drinking drivers without being excessively gruesome or traumatic to the probationer. (c) If persons trained in counseling or substance abuse are made available to the court, the court may coordinate the visitation program or the visitations at any facility designated in subdivision (a) through those persons. (d) Any visitation shall include, before any observation of victims or disabled persons by the probationer, a comprehensive counseling session with the visitation supervisor at which the supervisor shall explain and discuss the experiences which may be encountered during the visitation in order to ascertain whether the visitation is appropriate for the probationer. (e) If at any time, whether before or during a visitation, the supervisor of the probationer determines that the visitation may be or is traumatic or otherwise inappropriate for the probationer, or is uncertain whether the visitation may be traumatic or inappropriate, the visitation shall be terminated without prejudice to the probationer. 23518. (a) The program may include a personal conference after the visitations described in Section 23517 between the sentencing judge or judicial officer or the person responsible for coordinating the program for the judicial district and the probationer, his or her counsel, and, if available, the probationer's parents to discuss the experiences of the visitation and how those experiences may impact the probationer's future conduct. (b) If a personal conference described in subdivision (a) is not practicable, because of the probationer's absence from the jurisdiction, conflicting time schedules, or other reasons, the program should provide for a written report or letter by the probationer to the court discussing the experiences and their impact on the probationer. 23518.5. The county, a court, any facility visited pursuant to the program, the agents, employees, or independent contractors of the court, county, or facility visited pursuant to the program, and any person supervising a probationer during the visitation, is not liable for any civil damages resulting from injury to the probationer, or civil damages caused by the probationer, during, or from any activities relating to, the visitation, except for willful or grossly negligent acts intended to, or reasonably expected to result in, that injury or damage and except for workers' compensation for the probationer as prescribed by law if the probationer performs community service at the facility as an additional term or condition of probation.


VEHICLE CODE
SECTION 23502
23502. (a) Notwithstanding any other provision of law, if a person who is at least 18 years of age is convicted of a first violation of Section 23140, in addition to any penalties, the court shall order the person to attend a program licensed under Section 11836 of the Health and Safety Code, subject to a fee schedule developed under paragraph (2) of subdivision (b) of Section 11837.4 of the Health and Safety Code. (b) The attendance in a licensed driving-under-the-influence program required under subdivision (a) shall be as follows: (1) If, within 10 years of the current violation of Section 23140, the person has not been convicted of a separate violation of Section 23140, 23152, or 23153, or of Section 23103, with a plea of guilty under Section 23103.5, or of Section 655 of the Harbors and Navigation Code, or of Section 191.5 of, or subdivision (a) of Section 192.5 of, the Penal Code, the person shall complete, at a minimum, the education component of that licensed driving-under-the-influence program. (2) If the person does not meet the requirements of paragraph (1), the person shall complete, at a minimum, the program described in paragraph (1) of subdivision (c) of Section 11837 of the Health and Safety Code. (c) The person's privilege to operate a motor vehicle shall be suspended by the department as required under Section 13352.6, and the court shall require the person to surrender his or her driver's license to the court in accordance with Section 13550. (d) The court shall advise the person at the time of sentencing that the driving privilege will not be restored until the person has provided the department with proof satisfactory to the department that the person has successfully completed the driving-under-the-influence program required under this section.


SECTION 2435-2436.7
2435. (a) The Legislature finds and declares that the emergency roadside assistance provided by highway service organizations is a valuable service that benefits millions of California motorists. The Legislature further finds and declares that emergency roadside assistance is provided statewide, in cooperation with, and shares resources with, public safety agencies. The Legislature also finds that the Department of the California Highway Patrol, in cooperation with the Department of Transportation, is responsible for the rapid removal of impediments to traffic on highways within the state and that the Department of the California Highway Patrol may enter into agreements with employers for freeway service patrol operations under an agreement or contract with a regional or local entity. The Legislature declares that it is important to the public safety that drivers who provide emergency roadside service not have criminal records that include violent crimes against persons. (b) dui The Legislature also declares that the Department of the California Highway Patrol, in cooperation with the Department of Transportation, shall be responsible for establishing the minimum training standards for highway service organization employees and employers who participate in freeway service patrol operations pursuant to an agreement or contract with a regional or local entity. 2436. For the purposes of this article, each of the following terms has the meaning given in this section: (a) "Emergency road service" is the adjustment, repair, or replacement by a  dui highway service organization of the equipment, tires, or mechanical parts of a motor vehicle so as to permit it to be operated under its own power. "Towing service" is the drafting or moving by a highway service organization of a motor vehicle from one place to another under power other than its own. (b) "Emergency roadside assistance" means towing service or emergency road service. (c) "Employer" has the same meaning as defined in Section 2430.1. (d) "Freeway service patrol" has the same meaning as defined in Section 2561 of the Streets and Highways Code. (e) dui "Highway service organization" means a motor club, as defined by Section 12142 of the Insurance Code and, in addition, includes any person or organization that operates or directs the operation of highway service vehicles to provide emergency roadside assistance to motorists, or any person or organization that is reimbursed or reimburses others for the cost of providing emergency roadside assistance, and any employer and includes any person or organization that directly or indirectly, with or without compensation, provides emergency roadside assistance. (f) "Regional or local entity" has the same meaning as defined in Section 2430.1. (g) "Tow truck driver" has the same meaning as defined in Section 2430.1. 2436.3. (a) On and after July 1, 1992, every employer shall obtain from the department a carrier identification number. Application for a carrier identification number shall be on forms furnished by the department. The number shall be displayed on both sides of each tow truck utilized in any freeway service patrol operation, in accordance with Section 27907. (b)  dui No employer shall operate a tow truck in any freeway service patrol operation if the carrier identification number issued pursuant to subdivision (a) has been suspended by the commissioner pursuant to Section 2432.1. (c) The carrier identification number shall be removed before sale, transfer, or other disposal of the vehicle, or upon termination of an agreement or contract for freeway service patrol operations. dui (d) A violation of this section is a misdemeanor. 2436.5. (a) The department, in cooperation with the Department of Transportation, shall provide training, pursuant to a reimbursable agreement or contract with a regional or local entity, for all employers and tow truck drivers who are involved in freeway service patrol operations pursuant to an agreement or contract with the regional or local entity. Dispatchers for freeway service patrol operations shall be employees of the department or the Department of Transportation.  dui (b) The training shall include, but not be limited to, all of the following: (1) Tow truck driver and motorist safety. (2) Patrol responsibility. (3) Vehicle operation. (4) Traffic control and scene management. (5) Communication procedures. (6) Demeanor and courtesy. 2436.7. (a) Every tow truck driver and employer, involved in a freeway service patrol operation under an agreement or contract with a regional or local entity, shall attend the training specified in subdivision (b) of Section 2436.5. (b) Upon successful completion of the training, each trainee shall be issued a certificate of completion. The certificate shall state the name of the training organization, the name and signature of the trainer, the name of the trainee, and the date of completion of the training. (c) The trainee shall provide a copy of the certificate of training to the employer. The employer shall maintain this information in the tow truck driver files established pursuant to subdivision (c) of Section 2430.5. (d) Every employer shall make the file available for inspection by the department at the employer's primary place of business in this state. dui





VEHICLE CODE dui
SECTION 100-680





VEHICLE CODE dui
SECTION 2430-2432.3
2430. (a) The Legislature hereby creates a pilot project to develop recommendations for requiring emergency road service organizations and their specified employees, within the state, to be certified and receive specified training in the interest of public safety. The project shall be limited to freeway service patrol operations for major urban areas. The project includes, but is not limited to, the issuance of tow truck driver certificates to employees and employers involved in freeway service patrol operations, criminal history checks for convictions of specified crimes, and training for enhancement of public safety. The purpose of the project shall be to develop recommendations for requiring all emergency road service organizations and specified employees, within the state, to be certified and receive specified training in the interest of public safety. (b) This project shall be for a period of two years commencing on July 1, 1992. The department shall submit a report to the Legislature not later than September 1, 1994. The report shall include, but not be limited to, all of the following: (1) The number of criminal history checks processed by the department. (2) The number of specified tow truck driver certificates issued. (3) The number of persons rejected for freeway service patrol operations as a result of the criminal history checks. (4) The names of participating emergency road service organizations. (5) An accounting of the number of certified persons who were subsequently disqualified for convictions of specified crimes, including the number of certified persons subsequently disqualified for convictions of specified crimes against those receiving service. (6) The training received by specified personnel. (7) Recommendations developed by the Emergency Roadside Assistance Advisory Committee regarding training, as specified in Section 2438, and guidelines for motorist safety, as specified in Section 2439. (8) Information compiled from reports submitted by highway service organizations pursuant to subdivision (a) of Section 2440. (9) Recommendations for extending the requirements of this article and Article 3.5 (commencing with Section 2435) to all highway service organizations and their specified employees within the state. (c) The Legislature declares that it is important to the public safety that tow truck drivers, who perform freeway service patrol operations under agreement with any specified public transportation planning entity, do not have criminal records which include violent crimes against persons. 2430.1. As used in this article, each of the following terms has the following meaning: (a) "Tow truck driver" means a person who operates a tow truck, who renders towing service or emergency road service to motorists while involved in freeway service patrol operations, pursuant to an agreement with a regional or local entity, and who has or will have direct and personal contact with the individuals being transported or assisted. As used in this subdivision, "towing service" has the same meaning as defined in Section 2436. (b) "Employer" means a person or organization that employs those persons defined in subdivision (a), or who is an owner-operator who performs the activity specified in subdivision (a), and who is involved in freeway service patrol operations pursuant to an agreement or contract with a regional or local entity. (c) "Regional or local entity" means a public organization established as a public transportation planning entity pursuant to Title 7.1 (commencing with Section 66500) of the Government Code or authorized to impose a transaction and use tax for transportation purposes by the Public Utilities Code or the service authority for freeway emergencies described in Section 2551 of the Streets and Highways Code. (d) "Emergency road service" has the same meaning as defined in Section 2436. (e) "Freeway service patrol" has the same meaning as defined in Section 2561 of the Streets and Highways Code. 2430.2. "Regional or local entity," as defined by subdivision (c) of Section 2430.1, also includes the transportation planning entity established pursuant to Section 130050.1 of the Public Utilities Code or the service authority for freeway emergencies described in Section 2551 of the Streets and Highways Code. 2430.3. (a) Every freeway service patrol tow truck driver and any California Highway Patrol rotation tow truck operator shall notify each of his or her employers and prospective employers and the Department of the California Highway Patrol of an arrest or conviction of any crime specified in paragraph (1), (2), (3), or (4) of subdivision (a) of Section 13377 prior to beginning the next workshift for that employer. (b) For the purpose of conducting criminal history and driver history checks of any California Highway Patrol rotation tow truck operator, the commissioner may utilize the California Law Enforcement Telecommunications System (CLETS). 2430.5. (a) Every employer intending to hire a tow truck driver on or after July 1, 1992, shall require the applicant for employment to submit a temporary tow truck driver certificate issued by the department or a permanent tow truck driver certificate issued by the Department of Motor Vehicles. The employer shall review the certificate and obtain a copy to be maintained as required by subdivision (c). The employer shall not hire any tow truck driver in any freeway service patrol operations who does not provide a temporary tow truck driver certificate issued by the department or a permanent tow truck driver certificate issued by the Department of Motor Vehicles. The employer shall not allow a tow truck driver who is not certified to participate in any freeway service patrol operations. If the issuance date on the certificate is more than 90 days from the proposed date of hire, the employer shall contact the department to re verify eligibility. (b) On or after July 1, 1992, every employer, whose currently employed tow truck drivers are required to obtain a tow truck driver certificate pursuant to Section 12520, shall require the employees to submit to the employer a temporary tow truck driver certificate issued by the department or a permanent tow truck driver certificate issued by the Department of Motor Vehicles. The employer shall review the certificate and obtain a copy to be maintained as required by subdivision (c). (c) Every employer shall maintain a tow truck driver certificate file for all tow truck drivers hired on or after July 1, 1992, or all currently employed tow truck drivers who are required to obtain a tow truck driver certificate pursuant to Section 12520. The employer shall retain employee rosters and copies of tow truck driver certificates for all tow truck drivers. The roster shall be comprised of the following two lists: (1) Drivers who have valid tow truck driver certificates. (2) Drivers who would be prohibited, pursuant to subdivision (a) of Section 13377, from involvement in any freeway service patrol operation. Every employer shall make available for inspection by the department at the employer's primary place of business in this state. In addition, the employer shall maintain a personnel roster, also available for inspection, of all current tow truck drivers and their date of hire by the employer. (d) Upon notification that a tow truck driver has been arrested for, or convicted of, any crime specified in paragraph (1), (2), (3), or (4) of subdivision (a) of Section 13377, the employer shall remove that tow truck driver from any position involving freeway service patrol operations. (e) A violation of this section by an employer is a misdemeanor. 2431. (a) For the purposes of conducting criminal history and driver history screening of tow truck drivers and employers, the commissioner shall do all of the following: (1) Obtain fingerprints from tow truck drivers and employers. The fingerprint cards will be submitted to the Department of Justice for criminal history checks. (2) Obtain a second set of fingerprints from applicants who have not continuously resided in the state for the previous seven years, and submit that card to the Federal Bureau of Investigation for out-of-state criminal history checks. The department may charge a fee sufficient to cover the additional expense of processing the fingerprint cards through the Federal Bureau of Investigation. (3) Verify that the tow truck driver or employer, or both, have a valid California driver's license, through the use of the automated records system. (b) On and after July 1, 1992, all tow truck drivers shall submit an application for the issuance of a tow truck driver certificate with the department and pay an application fee equal to the actual costs of a criminal history check and issuance of the tow truck driver's certificate, but not more than fifty dollars ($50). Applicants for the renewal of an expired tow truck driver certificate or applicants for a duplicate tow truck driver certificate shall submit an application for issuance of a new tow truck driver certificate to the Department of Motor Vehicles and pay an application fee of twelve dollars ($12). All fees collected pursuant to this section shall be deposited in the Motor Vehicle Account in the State Transportation Fund. An amount equal to the fees paid shall be made available, upon appropriation, to the Department of Motor Vehicles for its administrative costs, for the cost of criminal history checks to be conducted by the Department of Justice, and to the department for its administrative costs. In no case shall the fees collected exceed the costs of administering this section. (c) Applicants for an original tow truck driver certificate shall be fingerprinted by the department, on a form issued by the department, for submission to the Department of Justice for the purpose of determining whether the applicant has been convicted for a violation of a crime specified in paragraph (1), (2), (3), or (4) of subdivision (a) of Section 13377. (d) Information released to the department or the Department of Motor Vehicles shall be related to their inquiry and shall remain confidential. (e) The department shall issue a temporary tow truck driver certificate, provided by the Department of Motor Vehicles, to applicants who have cleared the specified criminal history check pursuant to paragraph (1) of subdivision (a) and the driver history check through the automated records system, and who meet all other applicable provisions of this code. The term of the temporary tow truck driver's certificate shall be for a period of 90 days from the date of issuance. 2432. (a) It is unlawful for a freeway service patrol tow truck driver to knowingly provide false information on the application prepared and submitted to the department pursuant to subdivision (b) of Section 2431. (b) It is unlawful for a California Highway Patrol rotation tow truck operator, including, but not limited to, a freeway service patrol tow truck driver, to fail to comply with the notification requirements in Section 2430.3. (c) A violation of this section is punishable as a misdemeanor. 2432.1. (a) If the commissioner determines that an employer has failed to comply with the requirements of this article or Article 3.5 (commencing with Section 2435), the commissioner may, after a hearing, suspend the highway safety carrier's identification number issued pursuant to Section 2436.3 for a period not to exceed two years. (b) If the commissioner determines that an employer has failed to comply with the requirements of this article or Article 3.5 (commencing with Section 2435) twice within a period of 24 consecutive months, the commissioner may, after a hearing, prohibit the employer from participating in any freeway service patrol operation for two years. (c) Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code does not apply to the hearing specified in subdivision (a) or (b). 2432.3. (a) This article does not preempt the authority of any city, city and county, or county to regulate, pursuant to subdivision (g) of Section 21100, any of the matters covered by this article. (b) (1) For the purposes of verifying the criminal history of individuals involved in the operation of tow truck services, law enforcement agencies of any city, city and county, or county may conduct criminal history checks for all of the following: (A) Applicants for employment to drive tow trucks. (B) Those who drive tow trucks. (C) Tow truck owners-operators. (2) The law enforcement agency may obtain the fingerprints of the individuals on a form approved by the Department of Justice and provided by the agency. The fingerprint samples shall be submitted to the Department of Justice for the purpose of determining whether the individual has been convicted of any violation, including, but not limited to, Section 220, subdivision (1), (2), (3), or (4) of Section 261, or Section 264.1, 267, 288, or 289 of the Penal Code, or any felony or three misdemeanors as set forth in subparagraph (B) of paragraph (2) of subdivision (a) of Section 5164 of the Public Resources Code. (3) For purposes of conducting criminal history screening of tow truck driver applicants, employees, and employers who have not resided continuously in the state for the previous seven years, the law enforcement agency of any city, city and county, or county, may obtain a second set of fingerprints, when necessary, and may submit that card to the Federal Bureau of Investigation for out-of-state criminal history checks. (c) The law enforcement agency of any city, city and county, or county may charge a fee sufficient to cover the cost of obtaining and processing the fingerprint cards through the Department of Justice. (d) For the purposes of conducting driver history screening of applicants to drive tow trucks, employees, and owners-operators, the law enforcement agency of any city, city and county, or county may verify that the applicant or owner-operator, as the case may be, has a valid California driver's license of the proper class, through the use of the automated records system. (e) The Department of Justice shall develop a procedure whereby it will notify the requesting law enforcement agency if the person fingerprinted has been convicted of any of the specified crimes or is convicted of a specified crime subsequent to employment or beginning operation of a tow service. The Department of Justice shall release the requested information to the requesting agency. (f) Information released to the requesting agency may be utilized for licensing and regulating procedures established pursuant to subdivision (g) of Section 21100. (g) Information released to the requesting agency shall be related to its inquiry, shall remain confidential, and shall not be made public. dui dui
100. Unless the provision or context otherwise requires, these definitions shall govern the construction of this code. 102. "Ability to respond in damages" means financial responsibility. 105. An "agricultural water-well boring rig" is a motor vehicle which is used exclusively in the boring of water-wells on agricultural property. 108. "Airbrakes" means a brake system using compressed air either for actuating the service brakes at the wheels of the vehicle or as a source of power for controlling or applying service brakes which are actuated through hydraulic or other intermediate means. 109. "Alcoholic beverage" includes any liquid or solid material intended to be ingested by a person which contains ethanol, also known as ethyl alcohol, drinking alcohol, or alcohol, including, but not limited to, alcoholic beverages as defined in Section 23004 of the Business and Professions Code, intoxicating liquor, malt beverage, beer, wine, spirits, liqueur, whiskey, rum, vodka, cordials, gin, and brandy, and any mixture containing one or more alcoholic beverages. Alcoholic beverage includes a mixture of one or more alcoholic beverages whether found or ingested separately or as a mixture. For purposes of the Driver License Compact, "intoxicating liquor" as used in Section 15023 has the same meaning as "alcoholic beverage" as used in this code. 110. "Alley" is any highway having a roadway not exceeding 25 feet in width which is primarily used for access to the rear or side entrances of abutting property; provided, that the City and County of San Francisco may designate by ordinance or resolution as an "alley" any highway having a roadway not exceeding 25 feet in width. 111. (a) "All-terrain vehicle" means a motor vehicle subject to subdivision (a) of Section 38010 that is all of the following: (1) Designed for operation off of the highway by an operator with no more than one passenger. (2) Fifty inches or less in width. (3) Nine hundred pounds or less unladen weight. (4) Suspended on three or more low-pressure tires. (5) Has a single seat designed to be straddled by the operator, or a single seat designed to be straddled by the operator and a seat for no more than one passenger. (6) Has handlebars for steering control. (b) Notwithstanding subdivision (a), for purposes of Chapter 6 (commencing with Section 3000) of Division 2 and Chapter 4 (commencing with Section 11700) of Division 5, "all-terrain vehicle" also means a recreational off-highway vehicle as defined in Section 500 and a utility-terrain vehicle as defined in Section 531. 111.3. An "all-terrain vehicle safety instructor" is a person who is sponsored by an all-terrain vehicle safety training organization, who has completed a course in all-terrain vehicle safety instruction administered by an approved all-terrain vehicle safety training organization, and who has been licensed by the department pursuant to Section 11105.1. 111.5. An "all-terrain vehicle safety training organization" is any organization which is approved to offer a program of instruction in all-terrain vehicle safety, including all-terrain vehicle safety instruction training, by the Off-Highway Vehicle Safety Education Committee and which has been issued a license by the department pursuant to Section 11105.6. 112. "Amber" has the same meaning as "yellow," and is within the chromaticity coordinate boundaries for yellow specified in regulations adopted by the Department of the California Highway Patrol. 115. An "armored car" is a vehicle that is equipped with materials on either the front, sides, or rear for the protection of persons therein from missiles discharged from firearms. 165. An authorized emergency vehicle is: (a) Any publicly owned and operated ambulance, lifeguard, or lifesaving equipment or any privately owned or operated ambulance licensed by the Commissioner of the California Highway Patrol to operate in response to emergency calls. (b) Any publicly owned vehicle operated by the following persons, agencies, or organizations: (1) Any federal, state, or local agency, department, or district employing peace officers as that term is defined in Chapter 4.5 (commencing with Section 830) of Part 2 of Title 3 of the Penal Code, for use by those officers in the performance of their duties. (2) Any forestry or fire department of any public agency or fire department organized as provided in the Health and Safety Code. (c) Any vehicle owned by the state, or any bridge and highway district, and equipped and used either for fighting fires, or towing or servicing other vehicles, caring for injured persons, or repairing damaged lighting or electrical equipment. (d) Any state-owned vehicle used in responding to emergency fire, rescue, or communications calls and operated either by the Office of Emergency Services or by any public agency or industrial fire department to which the Office of Emergency Services has assigned the vehicle. (e) Any vehicle owned or operated by any department or agency of the United States government when the vehicle is used in responding to emergency fire, ambulance, or lifesaving calls or is actively engaged in law enforcement work. (f) Any vehicle for which an authorized emergency vehicle permit has been issued by the Commissioner of the California Highway Patrol. 165.5. No act or omission of any rescue team operating in conjunction with an authorized emergency vehicle as defined in Section 165, while attempting to resuscitate any person who is in immediate danger of loss of life, shall impose any liability upon the rescue team or the owners or operators of any authorized emergency vehicle, if good faith is exercised. For the purposes of this section, "rescue team" means a special group of physicians and surgeons, nurses, volunteers, or employees of the owners or operators of the authorized emergency vehicle who have been trained in cardiopulmonary resuscitation and have been designated by the owners or operators of the emergency vehicle to attempt to resuscitate persons who are in immediate danger of loss of life in cases of emergency. This section shall not relieve the owners or operators of any other duty imposed upon them by law for the designation and training of members of a rescue team or for any provisions regarding maintenance of equipment to be used by the rescue team. Members of a rescue team shall receive the training in a program approved by, or conforming to, standards prescribed by an emergency medical care committee established pursuant to Article 3 (commencing with Section 1797.270) of Chapter 4 of Division 2.5 of the Health and Safety Code, or a voluntary area health planning agency established pursuant to Section 127155 of the Health and Safety Code. 166.  duiAn "autobroker" or "auto buying service" is a dealer, as defined in Section 285, who engages in the business of brokering, as defined in Section 232.5. 175. An "autoette" is a motor vehicle, located on a natural island with an area in excess of 20,000 acres and that is within a county having a population in excess of 4,000,000, that meets all of the following requirements: (a) Has three or more wheels in contact with the ground. (b) Has an unladed weight of no greater than 1,800 pounds. (c) Has an overall length of no more than 120 inches, including the front and rear bumpers. (d) Has a width of no more than 55 inches, as measured from its widest part. 210. An "automated enforcement system" is any system operated by a governmental agency, in cooperation with a law enforcement agency, that photographically records a driver's responses to a rail or rail transit signal or crossing gate, or both, or to an official traffic control signal described in Section 21450, and is designed to obtain a clear photograph of a vehicle's license plate and the driver of the vehicle. 220.  duiAn "automobile dismantler" is any person not otherwise expressly excluded by Section 221 who: (a) Is engaged in the business of buying, selling, or dealing in vehicles of a type required to be registered under this code, including nonrepairable vehicles, for the purpose of dismantling the vehicles, who buys or sells the integral parts and component materials thereof, in whole or in part, or deals in used motor vehicle parts. This section does not apply to the occasional and incidental dismantling of vehicles by dealers who have secured dealers plates from the department for the current year whose principal business is buying and selling new and used vehicles, or by owners who desire to dismantle not more than three personal vehicles within any 12-month period. (b) Notwithstanding the provisions of subdivision (a), keeps or maintains on real property owned by him, or under his possession or control, two or more unregistered motor vehicles no longer intended for, or in condition for, legal use on the highways, whether for the purpose of resale of used parts, for the purpose of reclaiming for use some or all of the materials, whether metal, glass, fabric, or otherwise, or to dispose of them, or for any other purpose. 221. (a) The term "automobile dismantler" does not include any of the following: (1) The owner or operator of any premises on which two or more unregistered and inoperable vehicles are held or stored, if the vehicles are used for restoration or replacement parts or otherwise, in conjunction with any of the following: (A) Any business of a licensed dealer, manufacturer, or transporter. (B) The operation and maintenance of any fleet of motor vehicles used for the transportation of persons or property. (C) Any agricultural, farming, mining, or ranching business that does not sell parts of the vehicles, except for either of the following purposes: (i) For use in repairs performed by that business. (ii) For use by a licensed dismantler or an entity described in paragraph (3). (D) Any motor vehicle repair business registered with the Bureau of Automotive Repair, or those exempt from registration under the Business and Professions Code or applicable regulations, that does not sell parts of the vehicles, except for either of the following purposes: (i) For use in repairs performed by that business. (ii) For use by a licensed dismantler or an entity described in paragraph (3). (2) Any person engaged in the restoration of vehicles of the type described in Section 5004 or in the restoration of other vehicles having historic or classic significance. (3) The owner of a steel mill, scrap metal processing facility, or similar establishment purchasing vehicles of a type subject to registration, not for the purpose of selling the vehicles, in whole or in part, but exclusively for the purpose of reducing the vehicles to their component materials, if either the facility obtains, on a form approved or provided by the department, a certification by the person from whom the vehicles are obtained that each of the vehicles has been cleared for dismantling pursuant to Section 5500 or 11520, or the facility complies with Section 9564. (4) Any person who acquires used parts or components for resale from vehicles which have been previously cleared for dismantling pursuant to Section 5500 or 11520. Nothing in this paragraph permits a dismantler to acquire or sell used parts or components during the time the dismantler license is under suspension. (b) Any vehicle acquired for the purpose specified in paragraph (3) of subdivision (a) from other than a licensed dismantler, or from other than an independent hauler who obtained the vehicle, or parts thereof from a licensed dismantler, shall be accompanied by either a receipt issued by the department evidencing proof of clearance for dismantling under Section 5500, or a copy of the ordinance or order issued by a local authority for the abatement of the vehicle pursuant to Section 22660. The steel mill, scrap metal processing facility, or similar establishment acquiring the vehicle shall attach the form evidencing clearance or abatement to the certification required pursuant to this section. All forms specified in paragraph (3) of subdivision (a) and in this subdivision shall be available for inspection by a peace officer during business hours. 223. Any reference in this code to "automobile driver training" shall be deemed to refer to the laboratory phase of driver education described by Section 51852 of the Education Code. 225. An "auxiliary dolly" is a vehicle, not designed for carrying persons or property on its own structure, which is so constructed and used in conjunction with a semitrailer as to support a portion of the weight of the semitrailer and any load thereon, but not permanently attached to the semitrailer, although a part of the weight of such dolly may rest on another vehicle. 230. An "axle" is a structure or portion of a structure consisting of one or more shafts, spindles, or bearings in the same vertical transverse plane by means of which, in conjunction with wheels mounted on said shafts, spindles, or bearings, a portion of the weight of a vehicle and its load, if any, is continuously transmitted to the roadway when the vehicle is in motion. 230.5.  dui A "B-train assembly" is a rigid frame extension attached to the rear frame of a semitrailer which allows for a fifth wheel connection point for a second semitrailer. 231. A bicycle is a device upon which any person may ride, propelled exclusively by human power through a belt, chain, or gears, and having one or more wheels. Persons riding bicycles are subject to the provisions of this code specified in Sections 21200 and 21200.5. 231.5. A "bicycle path" or "bike path" is a Class I bikeway, as defined in subdivision (a) of Section 890.4 of the Streets and Highways Code. 231.6. (a) A "bicycle path crossing" is either of the following: (1) That portion of a roadway included within the prolongation or connection of the boundary lines of a bike path at intersections where the intersecting roadways meet at approximately right angles. (2) Any portion of a roadway distinctly indicated for bicycle crossing by lines or other markings on the surface. (b) Notwithstanding subdivision (a), there shall not be a bicycle path crossing where local authorities have placed signs indicating no crossing. 232. The "board" is the New Motor Vehicle Board. 232.5. "Brokering" is an arrangement under which a dealer, for a fee or other consideration, regardless of the form or time of payment, provides or offers to provide the service of arranging, negotiating, assisting, or effectuating the purchase of a new or used motor vehicle, not owned by the dealer, for another or others. 233. (a) Except as provided in subdivision (b), a "bus" is any vehicle, including a trailer bus, designed, used, or maintained for carrying more than 15 persons including the driver. (b) A vehicle designed, used, or maintained for carrying more than 10 persons, including the driver, which is used to transport persons for compensation or profit, or is used by any nonprofit organization or group, is also a bus. (c) This section does not alter the definition of a schoolbus, school pupil activity bus, general public paratransit vehicle, farm labor vehicle, or youth bus. (d) A vanpool vehicle is not a bus. 234. A "business" includes a proprietorship, partnership, corporation, and any other form of commercial enterprise. 235. A "business district" is that portion of a highway and the property contiguous thereto (a) upon one side of which highway, for a distance of 600 feet, 50 percent or more of the contiguous property fronting thereon is occupied by buildings in use for business, or (b) upon both sides of which highway, collectively, for a distance of 300 feet, 50 percent or more of the contiguous property fronting thereon is so occupied. A business district may be longer than the distances specified in this section if the above ratio of buildings in use for business to the length of the highway exists. 236. A "business representative" means a proprietor, a limited or general partner, a managerial employee, a stockholder, a director, or an officer who is active in the management, direction, and control of that part of a business which is a licensed activity. 240. In determining whether a highway is within a business or residence district, the following limitations shall apply and shall qualify the definitions in Sections 235 and 515: (a) No building shall be regarded unless its entrance faces the highway and the front of the building is within 75 feet of the roadway. (b) Where a highway is physically divided into two or more roadways only those buildings facing each roadway separately shall be regarded for the purpose of determining whether the roadway is within a district. (c) All churches, apartments, hotels, multiple dwelling houses, clubs, and public buildings, other than schools, shall be deemed to be business structures. (d) A highway or portion of a highway shall not be deemed to be within a district regardless of the number of buildings upon the contiguous property if there is no right of access to the highway by vehicles from the contiguous property. 241. A "buy-here-pay-here" dealer is a dealer, as defined in Section 285, who is not otherwise expressly excluded by Section 241.1, and who does all of the following: (a) Enters into conditional sale contracts, within the meaning of subdivision (a) of Section 2981 of the Civil Code, and subject to the provisions of Chapter 2b (commencing with Section 2981) of Title 14 of Part 4 of Division 3 of the Civil Code, or lease contracts, within the meaning of Section 2985.7 of the Civil Code, and subject to the provisions of Chapter 2d (commencing with Section 2985.7) of Title 14 of Part 4 of Division 3 of the Civil Code. (b) Assigns less than 90 percent of all unrescinded conditional sale contracts and lease contracts to unaffiliated third-party finance or leasing sources within 45 days of the consummation of those contracts. (c) For purposes of this section, a conditional sale contract does not include a contract for the sale of a motor vehicle if all amounts owed under the contract are paid in full within 30 days. (d) The department may promulgate regulations as necessary to implement this section. 241. A "buy-here-pay-here" dealer is a dealer, as defined in Section 285, who is not otherwise expressly excluded by Section 241.1, and who does all of the following: (a) Enters into conditional sale contracts, within the meaning of subdivision (a) of Section 2981 of the Civil Code, and subject to the provisions of Chapter 2b (commencing with Section 2981) of Title 14 of Part 4 of Division 3 of the Civil Code, or lease contracts, within the meaning of Section 2985.7 of the Civil Code, and subject to the provisions of Chapter 2d (commencing with Section 2985.7) of Title 14 of Part 4 of Division 3 of the Civil Code. (b) Assigns less than 90 percent of all unrescinded conditional sale contracts and lease contracts to unaffiliated third-party finance or leasing sources within 45 days of the consummation of those contracts. (c) For purposes of this section, a conditional sale contract does not include a contract for the sale of a motor vehicle if all amounts owed under the contract are paid in full within 30 days. (d) The department may promulgate regulations as necessary to implement this section. 241.1. The term "buy-here-pay-here" dealer does not include any of the following: (a) A lessor who primarily leases vehicles that are two model years old or newer. (b) A dealer that does both of the following: (1) Certifies 100 percent of used vehicle inventory offered for sale at retail price pursuant to Section 11713.18. (2) Maintains an onsite service and repair facility that is licensed by the Bureau of Automotive Repair and employs a minimum of five master automobile technicians that are certified by the National Institute for Automotive Service Excellence. 241.1. The term "buy-here-pay-here" dealer does not include any of the following: (a) A lessor who primarily leases vehicles that are two model years old or newer. (b) A dealer that does both of the following: (1) Certifies 100 percent of used vehicle inventory offered for sale at retail price pursuant to Section 11713.18. (2) Maintains an onsite service and repair facility that is licensed by the Bureau of Automotive Repair and employs a minimum of five master automobile technicians that are certified by the National Institute for Automotive Service Excellence. 242. A "camp trailer" is a vehicle designed to be used on a highway, capable of human habitation for camping or recreational purposes, that does not exceed 16 feet in overall length from the foremost point of the trailer hitch to the rear extremity of the trailer body and does not exceed 96 inches in width and includes any tent trailer. Where a trailer telescopes for travel, the size shall apply to the trailer as fully extended. Notwithstanding any other provision of law, a camp trailer shall not be deemed to be a trailer coach. 243. A "camper" is a structure designed to be mounted upon a motor vehicle and to provide facilities for human habitation or camping purposes. A camper having one axle shall not be considered a vehicle. 245. A "carry-all" is that type of earth-moving equipment which is not self-propelled but which is designed for use behind tractors or other motive power and which is self-loading by means of a cutting blade which is lowered at an angle to dig into the ground. The term includes, but is not limited to, such types of vehicles as carry the trade names of LaPlant-Choate, LeTourneau, and Be Ge. 246. A "certificate of compliance" for the purposes of this code is an electronic or printed document issued by a state agency, board, or commission, or authorized person, setting forth that the requirements of a particular law, rule or regulation, within its jurisdiction to regulate or administer has been satisfied. 250. A "chop shop" is any building, lot, or other premises where any person has been engaged in altering, destroying, disassembling, dismantling, reassembling, or storing any motor vehicle or motor vehicle part known to be illegally obtained by theft, fraud, or conspiracy to defraud, in order to do either of the following: (a) Alter, counterfeit, deface, destroy, disguise, falsify, forge, obliterate, or remove the identity, including the vehicle identification number, of a motor vehicle or motor vehicle part, in order to misrepresent the identity of the motor vehicle or motor vehicle part, or to prevent the identification of the motor vehicle or motor vehicle part. (b) Sell or dispose of the motor vehicle or motor vehicle part. 255. "City" includes every city and city and county within this State. 257. A "clean fuel vehicle" means any passenger or commercial vehicle or pickup truck that is fueled by alternative fuels, as defined in Section 301 of the Energy Policy Act of 1992 (P.L. 102-486), and produces emissions which do not exceed whichever of the following standards, as defined by regulations of the State Air Resources Board in effect on January 1, 1994, is applicable to the model year of the vehicle: (a) For a vehicle of the 1994 to 1996, inclusive, model year, the emission standard applicable to a transitional low-emission vehicle. (b) For a vehicle of the 1997 model year, the emission standard applicable to a low-emission vehicle. (c) For a vehicle of the 1998 to 2000, inclusive, model year, the emission standard applicable to an ultra low-emission vehicle. 259. "Collector motor vehicle" means a motor vehicle owned by a collector, as defined in subdivision (a) of Section 5051, and the motor vehicle is used primarily in shows, parades, charitable functions, and historical exhibitions for display, maintenance, and preservation, and is not used primarily for transportation. 260. (a) A "commercial vehicle" is a motor vehicle of a type required to be registered under this code used or maintained for the transportation of persons for hire, compensation, or profit or designed, used, or maintained primarily for the transportation of property. (b) Passenger vehicles and house cars that are not used for the transportation of persons for hire, compensation, or profit are not commercial vehicles. This subdivision shall not apply to Chapter 4 (commencing with Section 6700) of Division 3. (c) Any vanpool vehicle is not a commercial vehicle. (d) The definition of a commercial vehicle in this section does not apply to Chapter 7 (commencing with Section 15200) of Division 6. 265. The "commissioner" is the Commissioner of the California Highway Patrol. 266. A "consignment" is an arrangement under which a dealer agrees to accept possession of a vehicle of a type required to be registered under this code from an owner for the purpose of selling the vehicle and to pay the owner or the owner's designee from the proceeds of the sale. 267. A "converter" is a person, other than a vehicle manufacturer, who, prior to the retail sale of a new vehicle, does any of the following to the vehicle: (a) Assembles, installs, or affixes a body, cab, or special equipment to the vehicle chassis. (b) Substantially adds to, subtracts from, or modifies the vehicle, if it is a previously assembled or manufactured new vehicle. 270. "County" includes every county and city and county within this State. 273. A "crib sheet" or "cribbing device" is any paper or device designed for cheating by supplying examination answers without questions to an applicant for the purpose of fraudulently qualifying the applicant for any class of driver's license, permit, or certificate. 275. "Crosswalk" is either: (a) That portion of a roadway included within the prolongation or connection of the boundary lines of sidewalks at intersections where the intersecting roadways meet at approximately right angles, except the prolongation of such lines from an alley across a street. (b) Any portion of a roadway distinctly indicated for pedestrian crossing by lines or other markings on the surface. Notwithstanding the foregoing provisions of this section, there shall not be a crosswalk where local authorities have placed signs indicating no crossing. 280. "Darkness" is any time from one-half hour after sunset to one-half hour before sunrise and any other time when visibility is not sufficient to render clearly discernible any person or vehicle on the highway at a distance of 1,000 feet. 285. "Dealer" is a person not otherwise expressly excluded by Section 286 who: (a) For commission, money, or other thing of value, sells, exchanges, buys, or offers for sale, negotiates or attempts to negotiate, a sale or exchange of an interest in, a vehicle subject to registration, a motorcycle, snowmobile, or all-terrain vehicle subject to identification under this code, or a trailer subject to identification pursuant to Section 5014.1, or induces or attempts to induce any person to buy or exchange an interest in a vehicle and, who receives or expects to receive a commission, money, brokerage fees, profit, or any other thing of value, from either the seller or purchaser of the vehicle. (b) Is engaged wholly or in part in the business of selling vehicles or buying or taking in trade, vehicles for the purpose of resale, selling, or offering for sale, or consigned to be sold, or otherwise dealing in vehicles, whether or not the vehicles are owned by the person. 286. The term "dealer" does not include any of the following: (a) Insurance companies, banks, finance companies, public officials, or any other person coming into possession of vehicles in the regular course of business, who sells vehicles under a contractual right or obligation, in performance of an official duty, or in authority of any court of law, if the sale is for the purpose of saving the seller from loss or pursuant to the authority of a court. (b) Persons who sell or distribute vehicles of a type subject to registration or trailers subject to identification pursuant to Section 5014.1 for a manufacturer to vehicle dealers licensed under this code, or who are employed by manufacturers or distributors to promote the sale of vehicles dealt in by those manufacturers or distributors. However, any of those persons who also sell vehicles at retail are vehicle dealers and are subject to this code. (c) Persons regularly employed as salespersons by vehicle dealers licensed under this code while acting within the scope of that employment. (d) Persons engaged exclusively in the bona fide business of exporting vehicles or of soliciting orders for the sale and delivery of vehicles outside the territorial limits of the United States, if no federal excise tax is legally payable or refundable on any of the transactions. Persons not engaged exclusively in the bona fide business of exporting vehicles, but who are engaged in the business of soliciting orders for the sale and delivery of vehicles, outside the territorial limits of the United States are exempt from licensure as dealers only if their sales of vehicles produce less than 10 percent of their total gross revenue from all business transacted. (e) Persons not engaged in the purchase or sale of vehicles as a business, who dispose of any vehicle acquired and used in good faith, for their own personal use, or for use in their business, and not for the purpose of avoiding the provisions of this code. (f) Persons who are engaged in the purchase, sale, or exchange of vehicles, other than motorcycles, all-terrain vehicles, or trailers subject to identification under this code, that are not intended for use on the highways. (g) Persons temporarily retained as auctioneers solely for the purpose of disposing of vehicle stock inventories by means of public auction on behalf of the owners at the owners' place of business, or as otherwise approved by the department, if intermediate physical possession or control of, or an ownership interest in, the inventory is not conveyed to the persons so retained. (h) Persons who are engaged exclusively in the business of purchasing, selling, servicing, or exchanging racing vehicles, parts for racing vehicles, and trailers designed and intended by the manufacturer to be used exclusively for carrying racing vehicles. For purposes of this subdivision, "racing vehicle" means a motor vehicle of a type used exclusively in a contest of speed or in a competitive trial of speed which is not intended for use on the highways. (i) A person who is a lessor. (j) A person who is a renter. (k) A salvage pool. (l) A yacht broker who is subject to the Yacht and Ship Brokers Act (Article 2 (commencing with Section 700) of Chapter 5 of Division 3 of the Harbors and Navigation Code) and who sells used boat trailers in conjunction with the sale of a vessel. (m) A licensed automobile dismantler who sells vehicles that have been reported for dismantling as provided in Section 11520. (n) The Director of Corrections when selling vehicles pursuant to Section 2813.5 of the Penal Code. (o) (1) Any public or private nonprofit charitable, religious, or educational institution or organization that sells vehicles if all of the following conditions are met: (A) The institution or organization qualifies for state tax-exempt status under Section 23701d of the Revenue and Taxation Code, and tax-exempt status under Section 501(c)(3) of the federal Internal Revenue Code. (B) The vehicles sold were donated to the nonprofit charitable, religious, or educational institution or organization. (C) The vehicles subject to retail sale meet all of the applicable equipment requirements of Division 12 (commencing with Section 24000) and are in compliance with emission control requirements as evidenced by the issuance of a certificate pursuant to subdivision (b) of Section 44015 of the Health and Safety Code. Under no circumstances may any institution or organization transfer the responsibility of obtaining a smog inspection certificate to the buyer of the vehicle. (D) The proceeds of the sale of the vehicles are retained by that institution or organization for its charitable, religious, or educational purposes. (2) An institution or organization described in paragraph (1) may sell vehicles on behalf of another institution or organization under the following conditions: (A) The nonselling institution or organization meets the requirements of paragraph (1). (B) The selling and nonselling institutions or organizations enter into a signed, written agreement pursuant to subparagraph (A) of paragraph (3) of subdivision (a) of Section 1660. (C) The selling institution or organization transfers the proceeds from the sale of each vehicle to the nonselling institution or organization within 45 days of the sale. All net proceeds transferred to the nonselling institution or organization shall clearly be identifiable to the sale of a specific vehicle. The selling institution or organization may retain a percentage of the proceeds from the sale of a particular vehicle. However, any retained proceeds shall be used by the selling institution or organization for its charitable, religious, or educational purposes. (D) At the time of transferring the proceeds, the selling institution or organization shall provide to the nonselling institution or organization, an itemized listing of the vehicles sold and the amount for which each vehicle was sold. (E) In the event the selling institution or organization cannot complete a retail sale of a particular vehicle, or if the vehicle cannot be transferred as a wholesale transaction to a dealer licensed under this code, the vehicle shall be returned to the nonselling institution or organization and the written agreement revised to reflect that return. Under no circumstances may a selling institution or organization transfer or donate the vehicle to a third party that is excluded from the definition of a dealer under this section. (3) An institution or organization described in this subdivision shall retain all records required to be retained pursuant to Section 1660. (p) A motor club, as defined in Section 12142 of the Insurance Code, that does not arrange or negotiate individual motor vehicle purchase transactions on behalf of its members but refers members to a new motor vehicle dealer for the purchase of a new motor vehicle and does not receive a fee from the dealer contingent upon the sale of the vehicle. 288. "Declared combined gross weight" equals the total unladen weight of the combination of vehicles plus the heaviest load that will be transported by that combination of vehicles. 289. "Declared gross vehicle weight" means weight that equals the total unladen weight of the vehicle plus the heaviest load that will be transported on the vehicle. 290. "Department" means the Department of Motor Vehicles except, when used in Chapter 2 (commencing with Section 2100) of Division 2 and in Divisions 11 (commencing with Section 21000), 12 (commencing with Section 24000), 13 (commencing with Section 29000), 14 (commencing with Section 31600), 14.1 (commencing with Section 32000), 14.3 (commencing with Section 32100), 14.5 (commencing with Section 33000), 14.7 (commencing with Section 34000), and 14.8 (commencing with Section 34500), it shall mean the Department of the California Highway Patrol. 291. Any reference in this code to the Department of Public Works shall be deemed to refer to the Department of Transportation, which is part of the Business, Transportation and Housing Agency as provided by Section 13975 of the Government Code. 295. The "director" is the Director of Motor Vehicles. 295.5. A "disabled person" is any of the following: (a) Any person who has lost, or has lost the use of, one or more lower extremities or both hands, or who has significant limitation in the use of lower extremities, or who has a diagnosed disease or disorder which substantially impairs or interferes with mobility, or who is so severely disabled as to be unable to move without the aid of an assistant device. (b) Any person who is blind to the extent that the person's central visual acuity does not exceed 20/200 in the better eye, with corrective lenses, as measured by the Snellen test, or visual acuity that is greater than 20/200, but with a limitation in the field of vision such that the widest diameter of the visual field subtends an angle not greater than 20 degrees. (c) Any person who suffers from lung disease to the extent of any of the following: (1) The person's forced (respiratory) expiratory volume for one second when measured by spirometry is less than one liter. (2) The person's arterial oxygen tension (pO2) is less than 60 mm/Hg on room air while the person is at rest. (d) Any person who is impaired by cardiovascular disease to the extent that the person's functional limitations are classified in severity as class III or class IV based upon standards accepted by the American Heart Association. 295.7. A "disabled veteran" is any person who, as a result of injury or disease suffered while on active service with the armed forces of the United States, suffers any of the following: (a) Has a disability which has been rated at 100 percent by the Department of Veterans Affairs or the military service from which the veteran was discharged, due to a diagnosed disease or disorder which substantially impairs or interferes with mobility. (b) Is so severely disabled as to be unable to move without the aid of an assistant device. (c) Has lost, or has lost use of, one or more limbs. (d) Has suffered permanent blindness, as defined in Section 19153 of the Welfare and Institutions Code. 296. A "distributor" is any person other than a manufacturer who sells or distributes new vehicles subject to registration under this code, new trailers subject to identification pursuant to Section 5014.1, or new off-highway motorcycles or all-terrain vehicles subject to identification under this code, to dealers in this state and maintains representatives for the purpose of contacting dealers or prospective dealers in this state. 297. A "distributor branch" is an office maintained by a distributor for the sale of new vehicles or new trailers subject to identification pursuant to Section 5014.1 to dealers or for directing or supervising, in whole or in part, the distributor's representatives. 300. A "drawbar" is a rigid structure forming a connection between a trailer and a towing vehicle, securely attached to both vehicles by nonrigid means and carrying no part of the load of either vehicle. 303. A "driveaway-towaway operation" is any operation in which any motor vehicle or combination of motor vehicles coupled together constitutes the commodity being transported, when one or more sets of wheels of any such motor vehicle or motor vehicles are on the roadway, and when one or more of such vehicles are being operated under a manufacturer's, dealer's, or transporter's special plates. 305. A "driver" is a person who drives or is in actual physical control of a vehicle. The term "driver" does not include the tillerman or other person who, in an auxiliary capacity, assists the driver in the steering or operation of any articulated firefighting apparatus. 310. A "driver's license" is a valid license to drive the type of motor vehicle or combination of vehicles for which a person is licensed under this code or by a foreign jurisdiction. 310.4. A "driving instructor" is, except as provided in Section 11105.5, an employee of a driving school licensed by the department to instruct others in the operation of motor vehicles. 310.6. A "driving school" is a business which, for compensation, conducts or offers to conduct instruction in the operation of motor vehicles. As used in this section, "instruction" includes classroom driver education, in-vehicle driver training, and correspondence study. 310.8. A "driving school operator" is either a driving school owner who operates his own driving school or an employee of a driving school who is designated by the driving school owner of such school to personally direct and manage the school for the owner. 311. A "driving school owner" is any person licensed by the department to engage in the business of giving instruction for compensation in the driving of motor vehicles or in the preparation of an applicant for examination for a driver's license issued by the department. 312. The term "drug" means any substance or combination of substances, other than alcohol, which could so affect the nervous system, brain, or muscles of a person as to impair, to an appreciable degree, his ability to drive a vehicle in the manner that an ordinarily prudent and cautious man, in full possession of his faculties, using reasonable care, would drive a similar vehicle under like conditions. 313. The term "electric personal assistive mobility device" or "EPAMD" means a self-balancing, nontandem two-wheeled device, that is not greater than 20 inches deep and 25 inches wide and can turn in place, designed to transport only one person, with an electric propulsion system averaging less than 750 watts (1 horsepower), the maximum speed of which, when powered solely by a propulsion system on a paved level surface, is no more than 12.5 miles per hour. 314. An "expressway" is a portion of highway that is part of either of the following: (a) An expressway system established by a county under Section 941.4 of the Streets and Highways Code. (b) An expressway system established by a county before January 1, 1989, as described in subdivision (g) of Section 941.4 of the Streets and Highways Code. 315. "Essential parts" are all integral and body parts of a vehicle of a type required to be registered under this code, the removal, alteration, or substitution of which would tend to conceal the identity of the vehicle or substantially alter its appearance. 320. "Established place of business" is a place actually occupied either continuously or at regular periods by any of the following: (a) A dealer, remanufacturer, remanufacturer branch, manufacturer, manufacturer branch, distributor, distributor branch, automobile driving school, or traffic violator school where the books and records pertinent to the type of business being conducted are kept. (b) An automobile dismantler where the books and records pertinent to the type of business being conducted are kept. A place of business of an automobile dismantler which qualified as an "established place of business" before September 17, 1970, is an "established place of business" as defined in this section. (c) A registration service where the books and records pertinent to the type of business being conducted are kept. 320.5. An "extralegal load" is a single unit or an assembled item which, due to its design, cannot be reasonably reduced or dismantled in size or weight so that it can be legally transported as a load without a permit as required by Section 35780. This section does not apply to loads on passenger cars. 321. "Factory-built housing" is a structure as defined in Section 19971 of the Health and Safety Code. As used in this code, factory-built housing is a trailer coach which is in excess of eight feet in width or in excess of 40 feet in length. 322. (a) A "farm labor vehicle" is any motor vehicle designed, used, or maintained for the transportation of nine or more farmworkers, in addition to the driver, to or from a place of employment or employment-related activities. (b) For the purpose of this section, a farmworker is any person engaged in rendering personal services for hire and compensation in connection with the production or harvesting of any farm products. (c) "Farm labor vehicle" does not include: (1) Any vehicle carrying only members of the immediate family of the owner or driver thereof. (2) Any vehicle while being operated under specific authority granted by the Public Utilities Commission or under specific authority granted to a transit system by an authorized city or county agency. 324. A "fifth-wheel travel trailer" is a vehicle designed for recreational purposes to carry persons or property on its own structure and so constructed as to be drawn by a motor vehicle by means of a kingpin connecting device. 324.5. A "former prisoner of war" is any person who, while serving as a member of the United States Armed Forces, as a member of the Philippine Commonwealth Armed Forces, as a part of a United States Expeditionary Force, or as a United States civilian, was held as a prisoner of war by forces hostile to the United States during any armed conflict and is currently a resident of California. 325. A "foreign jurisdiction" is any other state, the District of Columbia, territories or possessions of the United States, and foreign states, provinces, or countries. 330. A "foreign vehicle" is a vehicle of a type required to be registered under this code brought into this State from a foreign jurisdiction other than in the ordinary course of business, by or through a manufacturer or dealer and not registered in this State. 331. (a) A "franchise" is a written agreement between two or more persons having all of the following conditions: (1) A commercial relationship of definite duration or continuing indefinite duration. (2) The franchisee is granted the right to offer for sale or lease, or to sell or lease at retail new motor vehicles or new trailers subject to identification pursuant to Section 5014.1 manufactured or distributed by the franchisor or the right to perform authorized warranty repairs and service, or the right to perform any combination of these activities. (3) The franchisee constitutes a component of the franchisor's distribution system. (4) The operation of the franchisee's business is substantially associated with the franchisor's trademark, trade name, advertising, or other commercial symbol designating the franchisor. (5) The operation of a portion of the franchisee's business is substantially reliant on the franchisor for a continued supply of new vehicles, parts, or accessories. (b) The term "franchise" does not include an agreement entered into by a manufacturer or distributor and a person where all the following apply: (1) The person is authorized to perform warranty repairs and service on vehicles manufactured or distributed by the manufacturer or distributor. (2) The person is not a new motor vehicle dealer franchisee of the manufacturer or distributor. (3) The person's repair and service facility is not located within the relevant market area of a new motor vehicle dealer franchisee of the manufacturer or distributor. 331.1. A "franchisee" is any person who, pursuant to a franchise, receives new motor vehicles subject to registration under this code, new off-highway motorcycles, as defined in Section 436, new all-terrain vehicles, as defined in Section 111, or new trailers subject to identification pursuant to Section 5014.1 from the franchisor and who offers for sale or lease, or sells or leases the vehicles at retail or is granted the right to perform authorized warranty repairs and service, or the right to perform any combination of these activities. 331.2. A "franchisor" is any person who manufactures, assembles, or distributes new motor vehicles subject to registration under this code, new off-highway motorcycles, as defined in Section 436, new all-terrain vehicles, as defined in Section 111, or new trailers subject to identification pursuant to Section 5014.1 and who grants a franchise. 331.3. A "recreational vehicle franchise" is a written agreement between two or more persons having both of the following conditions: (a) A commercial relationship of definite duration or continuing indefinite duration. (b) The franchisee is granted the right to offer for sale or lease, or to sell or lease at retail, new recreational vehicles, as defined in subdivision (a) of Section 18010 of the Health and Safety Code, that are manufactured or distributed by the franchisor, or the right to perform authorized warranty repairs and service, or the right to perform any combination of these activities. 332. "Freeway" is a highway in respect to which the owners of abutting lands have no right or easement of access to or from their abutting lands or in respect to which such owners have only limited or restricted right or easement of access. 335. A "gantry truck" is a motor vehicle so designed and constructed that it straddles the load to be transported and by means of appropriate mechanism picks up the load and supports it during transportation. 336. "General public paratransit vehicle" means any motor vehicle designed for carrying no more than 24 persons and the driver, that provides local transportation to the general public, including transportation of pupils at or below the 12th-grade level to or from a public or private school or school activity, under the exclusive jurisdiction of a publicly owned and operated transit system through one of the following modes: dial-a-ride, subscription service, or route-deviated bus service. Vehicles used in the exclusive transportation of disabled persons as defined in Section 99206.5 of the Public Utilities Code, or of persons 55 years of age or older, including any persons necessary to provide assistance to these passengers, are not general public paratransit vehicles. However, transportation of attendants, companions, or both traveling together with those individuals with disabilities who are determined to be eligible for complementary paratransit services in accordance with Title II of the Americans with Disabilities Act of 1990 (Public Law 101-336) and federal regulations adopted pursuant thereto, shall not be sufficient to qualify a vehicle as a general public paratransit vehicle. A vehicle that provides local transportation for the general public through one of the following modes: dial-a-ride, subscription service, or route-deviated bus service, but does not provide transportation of pupils at or below the 12th-grade level to or from a public or private school or school activity, is a transit bus, as defined by Section 642, and is not a general public paratransit vehicle. 340. A "garage" is a building or other place wherein the business of storing or safekeeping vehicles of a type required to be registered under this code and which belong to members of the general public is conducted for compensation. 345. A "golf cart" is a motor vehicle having not less than three wheels in contact with the ground, having an unladen weight less than 1,300 pounds, which is designed to be and is operated at not more than 15 miles per hour and designed to carry golf equipment and not more than two persons, including the driver. 350. (a) "Gross vehicle weight rating" (GVWR) means the weight specified by the manufacturer as the loaded weight of a single vehicle. (b) Gross combination weight rating (GCWR) means the weight specified by the manufacturer as the loaded weight of a combination or articulated vehicle. In the absence of a weight specified by the manufacturer, GCWR shall be determined by adding the GVWR of the power unit and the total unladen weight of the towed units and any load thereon. 353. "Hazardous material" is any substance, material, or device posing an unreasonable risk to health, safety, or property during transportation, as defined by regulations adopted pursuant to Section 2402.7. "Hazardous material" includes explosives and hazardous wastes or substances as defined by regulations adopted pursuant to Section 25141 of the Health and Safety Code and medical wastes, as defined in Section 117690 of the Health and Safety Code. 360. "Highway" is a way or place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel. Highway includes street. 362. A "house car" is a motor vehicle originally designed, or permanently altered, and equipped for human habitation, or to which a camper has been permanently attached. A motor vehicle to which a camper has been temporarily attached is not a house car except that, for the purposes of Division 11 (commencing with Section 21000) and Division 12 (commencing with Section 24000), a motor vehicle equipped with a camper having an axle that is designed to support a portion of the weight of the camper unit shall be considered a three-axle house car regardless of the method of attachment or manner of registration. A house car shall not be deemed to be a motortruck. 365. An "intersection" is the area embraced within the prolongation of the lateral curb lines, or, if none, then the lateral boundary lines of the roadways, of two highways which join one another at approximately right angles or the area within which vehicles traveling upon different highways joining at any other angle may come in conflict. 370. A "legal owner" is a person holding a security interest in a vehicle which is subject to the provisions of the Uniform Commercial Code, or the lessor of a vehicle to the State or to any county, city, district, or political subdivision of the State, or to the United States, under a lease, lease-sale, or rental-purchase agreement which grants possession of the vehicle to the lessee for a period of 30 consecutive days or more. 371. Lessee includes "bailee" and is a person who leases, offers to lease, or is offered the lease of a motor vehicle for a term exceeding four months. 372. A "lessor" is a person who, for a term exceeding four months, leases or offers for lease, negotiates or attempts to negotiate a lease, or induce any person to lease a motor vehicle; and who receives or expects to receive a commission, money, brokerage fees, profit or any other thing of value from the lessee of said vehicle. "Lessor" includes "bailor" and "lease" includes "bailment." 373. A "lessor-retailer" is a lessor or renter who, except under the circumstances described in subdivision (a) of Section 286, makes a retail sale or sales of a previously leased or rented vehicle or vehicles to other than any of the following: (a) The lessee of the vehicle, or the person who, for a period of at least one year, has been designated by the lessee as the driver of the vehicle covered by a written lease agreement. (b) A buyer for agricultural, business, or commercial purposes. (c) A government or governmental agency or instrumentality. 375. "Lighting equipment" is any of the following lamps or devices: (a) A headlamp, auxiliary driving, passing, or fog lamp, fog taillamp, taillamp, stoplamp, supplemental stoplamp, license plate lamp, clearance lamp, side marker lamp, signal lamp or device, supplemental signal lamp, deceleration signal device, cornering lamp, running lamp, red, blue, amber, or white warning lamp, flashing red schoolbus lamp, side-mounted turn signal lamp, and schoolbus side lamp. (b) An operating unit or canceling mechanism for turn signal lamps or for the simultaneous flashing of turn signal lamps as vehicular hazard signals, and an advance stoplamp switch. (c) A flasher mechanism for turn signals, red schoolbus lamps, warning lamps, the simultaneous flashing of turn signal lamps as vehicular hazard signals, and the headlamp flashing systems for emergency vehicles. (d) Any equipment regulating the light emitted from a lamp or device or the light sources therein. (e) A reflector, including reflectors for use on bicycles, and reflectors used for required warning devices. (f) An illuminating device that emits radiation predominantly in the infrared or ultraviolet regions of the spectrum, whether or not these emissions are visible to the unaided eye. (g) An illuminated sign installed on a bus that utilizes an electronic display to convey the route designation, route number, run number, public service announcement, or any combination of this information, or an illuminated sign utilized pursuant to Section 25353.1. 377. A "limit line" is a solid white line not less than 12 nor more than 24 inches wide, extending across a roadway or any portion thereof to indicate the point at which traffic is required to stop in compliance with legal requirements. 378. (a) "Limousine" means any sedan or sport utility vehicle, of either standard or extended length, with a seating capacity of not more than 10 passengers including the driver, used in the transportation of passengers for hire on a prearranged basis within this state. (b) "Modified limousine" means any vehicle that has been modified, altered, or extended in a manner that increases the overall wheelbase of the vehicle, exceeding the original equipment manufacturer's published wheelbase dimension for the base model and year of the vehicle, in any amount sufficient to accommodate additional passengers with a seating capacity of not more than 10 passengers including the driver, and is used in the transportation of passengers for hire. For purposes of this subdivision, "wheelbase" means the longitudinal distance between the vertical centerlines of the front and rear wheels. 380. "Liquefied petroleum gas" means normal butane, isobutane, propane, or butylene (including isomers) or mixtures composed predominantly thereof in liquid or gaseous state having a vapor pressure in excess of 40 pounds per square inch absolute at a temperature of 100 degrees Fahrenheit. 385. "Local authorities" means the legislative body of every county or municipality having authority to adopt local police regulations. 385.2. A "logging dolly" is a vehicle designed for carrying logs, having one or more axles that, if there are more than one, are not more than 54 inches apart, and used in connection with a motor truck solely for the purpose of transporting logs and securely connected with the towing vehicle both by a reach and by the load. 385.3. A "logging vehicle" is a vehicle used exclusively in the conduct of logging operations and not designed for the transportation of persons or property on a highway. 385.5. (a) A "low-speed vehicle" is a motor vehicle that meets all of the following requirements: (1) Has four wheels. (2) Can attain a speed, in one mile, of more than 20 miles per hour and not more than 25 miles per hour, on a paved level surface. (3) Has a gross vehicle weight rating of less than 3,000 pounds. (b) (1) For the purposes of this section, a "low-speed vehicle" is not a golf cart, except when operated pursuant to Section 21115 or 21115.1. (2) A "low-speed vehicle" is also known as a "neighborhood electric vehicle." 386. A "managerial employee" is a person who exercises control over a business licensed under this code, whether compensated by salary or commission, including, but not limited to, any person who is employed as a general manager, business manager, assistant general manager, finance and insurance manager, advertising manager, or sales manager. 387. "Manufactured home" is a manufactured home, as defined in Section 18007 of the Health and Safety Code, a commercial coach, as defined in Section 18001. 8 of the Health and Safety Code, a mobilehome, as defined in Section 18008 of the Health and Safety Code, factory-built housing, as defined in Section 18971 of the Health and Safety Code, and a trailer coach which is in excess of 102 inches in width, or in excess of 40 feet in overall length measured from the foremost point of the trailer hitch to the rear extremity of the trailer. Manufactured home does not include a recreational vehicle, as defined in Section 18010 of the Health and Safety Code. 389. A "manufacturer branch" is an office maintained by a manufacturer for the sale of new vehicles to dealers or for directing or supervising in whole or in part the manufacturer's representatives. 395. A "metal tire" is a tire the surface of which in contact with the highway is wholly or partly of metal or other hard nonresilient material. 395.5. A "mobile billboard advertising display" means an advertising display that is attached to a mobile, nonmotorized vehicle, device, or bicycle, that carries, pulls, or transports a sign or billboard, and is for the primary purpose of advertising. 396. "Mobilehome" is a structure as defined in Section 18008 of the Health and Safety Code. For the purposes of enforcement of highway safety laws and regulations, a mobilehome is a trailer coach which is in excess of 102 inches in width, or in excess of 40 feet in overall length measured from the foremost point of the trailer hitch to the rear extremity of the trailer. 400. (a) A "motorcycle" is a motor vehicle having a seat or saddle for the use of the rider, designed to travel on not more than three wheels in contact with the ground. (b) A motor vehicle that has four wheels in contact with the ground, two of which are a functional part of a sidecar, is a motorcycle if the vehicle otherwise comes within the definition of subdivision (a). (c) A farm tractor is not a motorcycle. (d) A three-wheeled motor vehicle that otherwise meets the requirements of subdivision (a), has a partially or completely enclosed seating area for the driver and passenger, is used by local public agencies for the enforcement of parking control provisions, and is operated at slow speeds on public streets, is not a motorcycle. However, a motor vehicle described in this subdivision shall comply with the applicable sections of this code imposing equipment installation requirements on motorcycles. 405. A "motor-driven cycle" is any motorcycle with a motor that displaces less than 150 cubic centimeters. A motor-driven cycle does not include a motorized bicycle, as defined in Section 406. 406. (a) A "motorized bicycle" or "moped" is a two-wheeled or three-wheeled device having fully operative pedals for propulsion by human power, or having no pedals if powered solely by electrical energy, and an automatic transmission and a motor that produces less than 4 gross brake horsepower and is capable of propelling the device at a maximum speed of not more than 30 miles per hour on level ground. (b) A "motorized bicycle" is also a device that has fully operative pedals for propulsion by human power and has an electric motor that meets all of the following requirements: (1) Has a power output of not more than 1,000 watts. (2) Is incapable of propelling the device at a speed of more than 20 miles per hour on ground level. (3) Is incapable of further increasing the speed of the device when human power is used to propel the motorized bicycle faster than 20 miles per hour. (4) Every manufacturer of motorized bicycles, as defined in this subdivision, shall provide a disclosure to buyers that advises buyers that their existing insurance policies may not provide coverage for these bicycles and that they should contact their insurance company or insurance agent to determine if coverage is provided. (c) The disclosure required under paragraph (4) of subdivision (b) shall meet both of the following requirements: (1) The disclosure shall be printed in not less than 14-point boldface type on a single sheet of paper that contains no information other than the disclosure. (2) The disclosure shall include the following language in capital letters: "YOUR INSURANCE POLICIES MAY NOT PROVIDE COVERAGE FOR ACCIDENTS INVOLVING THE USE OF THIS BICYCLE. TO DETERMINE IF COVERAGE IS PROVIDED YOU SHOULD CONTACT YOUR INSURANCE COMPANY OR AGENT." 407. A "motorized quadricycle" is a four-wheeled device, and a "motorized tricycle" is a three-wheeled device, designed to carry not more than two persons, including the driver, and having either an electric motor or a motor with an automatic transmission developing less than two gross brake horsepower and capable of propelling the device at a maximum speed of not more than 30 miles per hour on level ground. The device shall be utilized only by a person who by reason of physical disability is otherwise unable to move about as a pedestrian or by a senior citizen as defined in Section 13000. 407.5. (a) A "motorized scooter" is any two-wheeled device that has handlebars, has a floorboard that is designed to be stood upon when riding, and is powered by an electric motor. This device may also have a driver seat that does not interfere with the ability of the rider to stand and ride and may also be designed to be powered by human propulsion. For purposes of this section, a motorcycle, as defined in Section 400, a motor-driven cycle, as defined in Section 405, or a motorized bicycle or moped, as defined in Section 406, is not a motorized scooter. (b) A device meeting the definition in subdivision (a) that is powered by a source other than electrical power is also a motorized scooter. (c) (1) A manufacturer of motorized scooters shall provide a disclosure to buyers that advises buyers that the buyers' existing insurance policies may not provide coverage for these scooters and that the buyers should contact their insurance company or insurance agent to determine if coverage is provided. (2) The disclosure required under paragraph (1) shall meet both of the following requirements: (A) The disclosure shall be printed in not less than 14-point boldface type on a single sheet of paper that contains no information other than the disclosure. (B) The disclosure shall include the following language in capital letters: "YOUR INSURANCE POLICIES MAY NOT PROVIDE COVERAGE FOR ACCIDENTS INVOLVING THE USE OF THIS SCOOTER. TO DETERMINE IF COVERAGE IS PROVIDED, YOU SHOULD CONTACT YOUR INSURANCE COMPANY OR AGENT." (d) (1) A manufacturer of motorized scooters shall provide a disclosure to a buyer that advises the buyer that the buyer may not modify or alter the exhaust system to cause that system to amplify or create an excessive noise, or to fail to meet applicable emission requirements. (2) The disclosure required under paragraph (1) shall meet both of the following requirements: (A) The disclosure shall be printed in not less than 14-point boldface type on a single sheet of paper that contains no information other than the disclosure. (B) The disclosure shall include the following language in capital letters: "YOU MAY NOT MODIFY OR ALTER THE EXHAUST SYSTEM OF THIS SCOOTER TO CAUSE IT TO AMPLIFY OR CREATE EXCESSIVE NOISE PER VEHICLE CODE SECTION 21226, OR TO FAIL TO MEET APPLICABLE EMISSION REQUIREMENTS PER VEHICLE CODE 27156." (e) This section shall become operative on January 1, 2008. 408. "Motor carrier" is the registered owner, lessee, licensee, or bailee of any vehicle set forth in Section 34500, who operates or directs the operation of any such vehicle on either a for-hire or not-for-hire basis. 410. A "motor truck" or "motortruck" is a motor vehicle designed, used, or maintained primarily for the transportation of property. 415. (a) A "motor vehicle" is a vehicle that is self-propelled. (b) "Motor vehicle" does not include a self-propelled wheelchair, motorized tricycle, or motorized quadricycle, if operated by a person who, by reason of physical disability, is otherwise unable to move about as a pedestrian. (c) For purposes of Chapter 6 (commencing with Section 3000) of Division 2, "motor vehicle" includes a recreational vehicle as that term is defined in subdivision (a) of Section 18010 of the Health and Safety Code, but does not include a truck camper. 425. A "muffler" is a device consisting of a series of chambers or baffle plates, or other mechanical design, for the purpose of receiving exhaust gas from an internal combustion engine, and effective in reducing noise. 426. "New motor vehicle dealer" is a dealer, as defined in Section 285, who, in addition to the requirements of that section, either acquires for resale new and unregistered motor vehicles from manufacturers or distributors of those motor vehicles or acquires for resale new off-highway motorcycles, or all-terrain vehicles from manufacturers or distributors of the vehicles. A distinction shall not be made, nor any different construction be given to the definition of "new motor vehicle dealer" and "dealer" except for the application of the provisions of Chapter 6 (commencing with Section 3000) of Division 2 and Section 11704.5. Sections 3001 and 3003 do not, however, apply to a dealer who deals exclusively in motorcycles, all-terrain vehicles, or recreational vehicles, as defined in subdivision (a) of Section 18010 of the Health and Safety Code. 430. A "new vehicle" is a vehicle constructed entirely from new parts that has never been the subject of a retail sale, or registered with the department, or registered with the appropriate agency or authority of any other state, District of Columbia, territory or possession of the United States, or foreign state, province, or country. 431. A "nonrepairable vehicle" is a vehicle of a type otherwise subject to registration that meets the criteria specified in subdivision (a), (b), or (c). The vehicle shall be issued a nonrepairable vehicle certificate and the vehicle, the vehicle frame, or unitized frame and body, as applicable, and as defined in Section 670.5, shall not be titled or registered. (a) A nonrepairable vehicle is a vehicle that has no resale value except as a source of parts or scrap metal, and which the owner irreversibly designates solely as a source of parts or scrap metal. (b) A nonrepairable vehicle is a completely stripped vehicle (a surgical strip) recovered from theft, missing all of the bolt on sheet metal body panels, all of the doors and hatches, substantially all of the interior components, and substantially all of the grill and light assemblies, or that the owner designates has little or no resale value other than its worth as a source of scrap metal, or as a source of a vehicle identification number that could be used illegally. (c) A nonrepairable vehicle is a completely burned vehicle (burned hulk) that has been burned to the extent that there are no more usable or repairable body or interior components, tires and wheels, or drive train components, and which the owner irreversibly designates as having little or no resale value other than its worth as scrap metal or as a source of a vehicle identification number that could be used illegally. 432. A "nonrepairable vehicle certificate" is a vehicle ownership document issued to the owner of a nonrepairable vehicle. Ownership of the vehicle may only be transferred two times on a nonrepairable vehicle certificate. A vehicle for which a nonrepairable vehicle certificate has been issued may not be titled or registered for use on the roads or highways of California. A nonrepairable vehicle certificate shall be conspicuously labeled with the word "nonrepairable" across the front. 435. "Nonresident" is a person who is not a resident of this State. 435.5. "Nonresident daily commuter" means a person who is not a resident of this state, but who enters and leaves this state on a daily basis for the purpose of employment and whose vehicle is principally garaged out of this state. 436. An "off-highway motorcycle" means a motorcycle or motor-driven cycle which is subject to identification under this code. 440. An "official traffic control device" is any sign, signal, marking, or device, consistent with Section 21400, placed or erected by authority of a public body or official having jurisdiction, for the purpose of regulating, warning, or guiding traffic, but does not include islands, curbs, traffic barriers, speed humps, speed bumps, or other roadway design features. 445. An "official traffic control signal" is any device, whether manually, electrically or mechanically operated, by which traffic is alternately directed to stop and proceed and which is erected by authority of a public body or official having jurisdiction. 450. An "oil well production service unit" is any vehicle specifically designed for and used exclusively in servicing oil wells which is only incidentally operated or moved on a highway. 455. "Original driver's license" means the first driver's license issued a person under this code. 460. An "owner" is a person having all the incidents of ownership, including the legal title of a vehicle whether or not such person lends, rents, or creates a security interest in the vehicle; the person entitled to the possession of a vehicle as the purchaser under a security agreement; or the State, or any county, city, district, or political subdivision of the State, or the United States, when entitled to the possession and use of a vehicle under a lease, lease-sale, or rental-purchase agreement for a period of 30 consecutive days or more. 461. The Senate, Assembly, or any committees thereof, or the Governor's office in possession and using vehicles under a lease, lease-sale, or rental-purchase agreement for a period of 30 consecutive days or more, unless otherwise provided in the lease or rental agreement, shall be exempt from the provisions of Section 460, upon the giving of written notice to the department of the desire to be so exempt. 462. A "paratransit vehicle" is a passenger vehicle, other than a bus, schoolbus, school pupil activity bus, youth bus, general public paratransit vehicle, or taxicab that is both of the following: (a) (1) Operated for hire by a business, nonprofit organization, or the state, or a political subdivision of the state utilizing drivers who receive compensation for their services and who spend a majority of their workweek operating a passenger vehicle. (2) For the purposes of this subdivision, compensation does not include reimbursement to volunteer drivers of the cost of providing transportation services at a rate not greater than that approved by the United States Internal Revenue Service for volunteers. (3) For the purposes of this subdivision, "for hire" means that the entity providing transportation services is compensated for the transportation under contract or agreement. (b) Regularly used to provide transportation services to any of the following: (1) Disabled persons who meet the definition of handicapped persons, as defined in Section 99206.5 of the Public Utilities Code. (2) Persons with a developmental disability, as defined in subdivision (a) of Section 4512 of the Welfare and Institutions Code. (3) Individuals with disabilities who are determined to be eligible for complementary paratransit services under Title II of the Americans with Disabilities Act of 1990 (P.L.101-336). (4) Persons who are 55 years of age or older. 463. "Park or parking" shall mean the standing of a vehicle, whether occupied or not, otherwise than temporarily for the purpose of and while actually engaged in loading or unloading merchandise or passengers. 464. A "passenger transportation vehicle" is any vehicle, including a trailer bus, designed, used, or maintained for carrying more than 10 persons including the driver, which requires the person to have in his or her immediate possession a valid driver's license for the appropriate class of vehicle to be driven endorsed for passenger transportation. 465. A "passenger vehicle" is any motor vehicle, other than a motortruck, truck tractor, or a bus, as defined in Section 233, and used or maintained for the transportation of persons. The term "passenger vehicle" shall include a housecar. 467. (a) A "pedestrian" is a person who is afoot or who is using any of the following: (1) A means of conveyance propelled by human power other than a bicycle. (2) An electric personal assistive mobility device. (b) "Pedestrian" includes a person who is operating a self-propelled wheelchair, motorized tricycle, or motorized quadricycle and, by reason of physical disability, is otherwise unable to move about as a pedestrian, as specified in subdivision (a). 467.5. "Pedicab" means either of the following: (a) A bicycle that has three or more wheels, that transports, or is capable of transporting, passengers on seats attached to the bicycle, that is operated by a person, and that is being used for transporting passengers for hire. (b) A bicycle that pulls a trailer, sidecar, or similar device, that transports, or is capable of transporting, passengers on seats attached to the trailer, sidecar, or similar device, that is operated by a person, and that is being used for transporting passengers for hire. 468. The department shall commence the "permanent trailer identification plate program," on or after December 31, 2001, and may designate the method, consistent with this code, to be used by trailers, as defined in Section 5014.1, to receive an assigned permanent trailer identification plate for all trailers, except for trailer coaches and park trailers as described in subdivision (b) of Section 18010 of the Health and Safety Code, for identification purposes. An auxiliary dolly or tow dolly may be assigned a permanent trailer identification plate. The plate shall be in a size and design as determined by the department. 470. "Person" includes a natural person, firm, copartnership, association, limited liability company, or corporation. 471. A "pickup truck" is a motor truck with a manufacturer's gross vehicle weight rating of less than 11,500 pounds, an unladen weight of less than 8,001 pounds, and which is equipped with an open box-type bed not exceeding 9 feet in length. "Pickup truck" does not include a motor vehicle otherwise meeting the above definition, that is equipped with a bed-mounted storage compartment unit commonly called a "utility body." 472. A "pilot car" is a motor vehicle, except a motorcycle, motorized bicycle, or motorized quadricycle, which is used to escort one or more other vehicles, when required, due to the vehicles' size or character of load, in accordance with conditions set forth in a permit issued by the appropriate state agency or by a local authority. 473. (a) A "pocket bike" is a two-wheeled motorized device that has a seat or saddle for the use of the rider, and that is not designed or manufactured for highway use. "Pocket bike" does not include an off-highway motorcycle, as defined in Section 436. (b) For purposes of this section, a vehicle is designed for highway use if it meets the applicable Federal Motor Vehicle Safety Standards, as contained in Title 49 of the Code of Federal Regulations, and is equipped in accordance with the requirements of this code. 475. A "pole or pipe dolly" is a vehicle, other than a motor vehicle, having one or more axles which axles, if there be more than one, are not more than 54 inches apart, and two or more wheels, used in connection with a motor vehicle solely for the purpose of transporting poles, timbers, pipes, or integral structural materials and connected with the towing vehicle both by chain, rope, cable, or drawbar, and by the load, without any part of the weight of the dolly resting upon the towing vehicle. 480. A "power brake" is any breaking gear or mechanism that aids in applying the brakes of a vehicle and which utilizes vacuum, compressed air, electricity, or hydraulic pressure developed by the motive power of that vehicle for that purpose. 485. A "pneumatic tire" is a tire inflated or capable of inflation with compressed air. 490. "Private road or driveway" is a way or place in private ownership and used for vehicular travel by the owner and those having express or implied permission from the owner but not by other members of the public. 492. A "private school" is any school, whether conducted for profit or not, giving a course of training similar to that given in a public school at or below the twelfth grade, including but not limited to schools owned or operated by any church. 500. "Recreational off-highway vehicle" means a motor vehicle meeting all of the following criteria: (a) Designed by the manufacturer for operation primarily off of the highway. (b) Has a steering wheel for steering control. (c) Has nonstraddle seating provided by the manufacturer for the operator and all passengers. (d) (1) Has a maximum speed capability of greater than 30 miles per hour. (2) A vehicle designed by the manufacturer with a maximum speed capability of 30 miles per hour or less but is modified so that it has a maximum speed capability of greater than 30 miles per hour satisfies the criteria set forth in this subdivision. (e) Has an engine displacement equal to or less than 1,000cc (61 ci). 505. A "registered owner" is a person registered by the department as the owner of a vehicle. 505.2. (a) A "registration service" is a person engaged in the business of soliciting or receiving an application for the registration, renewal of registration, or transfer of registration or ownership, of a vehicle of a type subject to registration under this code, or of soliciting or receiving an application for a motor carrier permit under Division 14.85 (commencing with Section 34600), or of transmitting or presenting those documents to the department, when any compensation is solicited or received for the service. "Registration service" includes, but is not limited to, a person who, for compensation, processes registration documents, conducts lien sales, or processes vehicle dismantling documents. (b) "Registration service" does not include the following: (1) A person performing registration services on a vehicle acquired by that person for his or her own personal use or for use in the regular course of that person's business. (2) A person who solicits applications for or sells, for compensation, nonresident permits for the operation of vehicles within this state. (3) An employee of one or more dealers or dismantlers, or a combination thereof, who performs either of the following: (A) Registration services for vehicles acquired by, consigned to, or sold by one or more of the employing dealers or dismantlers. (B) Vehicle transactions on behalf of one or more of the employing dealers or dismantlers, if the transaction is for an employing dealer or dismantler who is a qualified business partner in compliance with the Business Partner Automation Program established by the department pursuant to Section 1685. (4) A motor club, as defined in Section 12142 of the Insurance Code. (5) A common carrier acting in the regular course of its business in transmitting applications. 506. "Registration year" is the period of time beginning with the date the vehicle is first required to be registered in this state and ending on the date designated by the director for expiration of the registration or the period of time designated for subsequent renewal thereof. 507. The "relevant market area" is any area within a radius of 10 miles from the site of a potential new dealership. 507.5. A "remanufactured vehicle" is a vehicle that has been constructed by a licensed remanufacturer and consists of any used or reconditioned integral parts, including, but not limited to, frame, engine, transmission, axles, brakes, or suspension. Remanufactured vehicles may be sold under a distinctive trade name. An existing vehicle which is incidently repaired, restored, or modified by replacing or adding parts or accessories is not a remanufactured vehicle. 507.8. A "remanufacturer" is any person who for commission, money, or other thing of value, produces a vehicle that consists of any used or reconditioned integral parts, including, but not limited to, frame, engine, transmission, axles, brakes, or suspension which is subject to registration under this code. A remanufacturer is not a person who incidently repairs, restores, or modifies an existing vehicle by replacing or adding parts or accessories. 508. A "renter" is a person who is engaged in the business of renting, leasing or bailing vehicles for a term not exceeding four months and for a fixed rate or price. 510. A "repair shop" is a place where vehicles subject to registration under this code are repaired, rebuilt, reconditioned, repainted, or in any way maintained for the public at a charge. 512. A "representative" is any person regularly employed by a manufacturer or distributor for the purpose of negotiating or promoting the sale of the manufacturer's or distributer's vehicles to their franchisees or for regularly supervising or contacting franchisees or prospective franchisees in this state for any purpose. 515. A "residence district" is that portion of a highway and the property contiguous thereto, other than a business district, (a) upon one side of which highway, within a distance of a quarter of a mile, the contiguous property fronting thereon is occupied by 13 or more separate dwelling houses or business structures, or (b) upon both sides of which highway, collectively, within a distance of a quarter of a mile, the contiguous property fronting thereon is occupied by 16 or more separate dwelling houses or business structures. A residence district may be longer than one-quarter of a mile if the above ratio of separate dwelling houses or business structures to the length of the highway exists. 516. "Resident" means any person who manifests an intent to live or be located in this state on more than a temporary or transient basis. Presence in the state for six months or more in any 12-month period gives rise to a rebuttable presumption of residency. The following are evidence of residency for purposes of vehicle registration: (a) Address where registered to vote. (b) Location of employment or place of business. (c) Payment of resident tuition at a public institution of higher education. (d) Attendance of dependents at a primary or secondary school. (e) Filing a homeowner's property tax exemption. (f) Renting or leasing a home for use as a residence. (g) Declaration of residency to obtain a license or any other privilege or benefit not ordinarily extended to a nonresident. (h) Possession of a California driver's license. (i) Other acts, occurrences, or events that indicate presence in the state is more than temporary or transient. 520. A "retail sale" is a sale of goods to a person for the purpose of consumption and use, and not for resale to others, including, but not limited to, an arrangement where a motor vehicle is consigned to a dealer for sale. 521. A "retarder" is a device, other than a brake, which, when activated by the driver, applies a retarding force to the wheels of a vehicle without the use of friction. A retarder may be installed in or on the engine, exhaust system, drive train, or wheels of a motor vehicle, or an axle or wheels of a towed vehicle. A retarder may operate by altering the valve timing of the engine, by controlling the flow of a circulating fluid, by applying an electromagnetic force, by controlling the release of gases from the exhaust system, or by other means. A retarder may or may not be capable of stopping the vehicle upon which it is installed. 521.5. "Revived salvage vehicle" means a total loss salvage vehicle as defined in Section 544, or a vehicle reported for dismantling pursuant to Section 5500 or 11520, that has been rebuilt or restored to legal operating condition with new or used component parts. 522. "Ridesharing" means two or more persons traveling by any mode, including, but not limited to, carpooling, vanpooling, buspooling, taxipooling, jitney, and public transit. 525. "Right-of-way" is the privilege of the immediate use of the highway. 527. (a) "Road" means any existing vehicle route established before January 1, 1979, with significant evidence of prior regular travel by vehicles subject to registration pursuant to Article 1 (commencing with Section 4000) of Chapter 1 of Division 3; provided, that "road" does not mean any route traversed exclusively by bicycles as defined in Section 39001, motorcycles as defined in Section 400, motor-driven cycles as defined in Section 405, or off-highway motor vehicles as defined in Section 38012. (b) Even though nature may alter or eliminate portions of an existing vehicle route, the route shall still be considered a road where there is evidence of periodic use. (c) A vehicle route need not necessarily be a publicly or privately maintained surface to be a road, as defined, for purposes of this section. Nothing contained herein shall pertain to any property in an incorporated area or properties held in private ownership. (d) This section is definitional only and nothing contained herein shall be deemed to affect, alter, create, or destroy any right, title, or interest in real property, including, but not limited to, any permit, license, or easement; nor shall this chapter be deemed to affect the liability, or lack thereof, of any owner of an interest of real property based upon the use, possession, or ownership of such interest in real property or the entry upon such property by any person. (e) This section shall only apply in a county where the board of supervisors has adopted a resolution or enacted an ordinance providing for such application. 530. A "roadway" is that portion of a highway improved, designed, or ordinarily used for vehicular travel. 531. "Utility-terrain vehicle" means a motor vehicle subject to subdivision (a) of Section 38010 that is all of the following: (a) Designed for operation off of the highway. (b) Suspended on four tires. (c) Has a steering wheel for steering control. (d) Has one seat to accommodate a driver and one passenger sitting side by side. 535. Safety glazing material is any glazing material so constructed, treated, or combined with other materials as to reduce, in comparison with ordinary sheet, plate, or floatglass, the likelihood of injury to persons by glazing material whether it may be broken or unbroken. 540. A "safety zone" is the area or space lawfully set apart within a roadway for the exclusive use of pedestrians and which is protected, or which is marked or indicated by vertical signs, raised markers or raised buttons, in order to make such area or space plainly visible at all times while the same is set apart as a safety zone. 543. "Salvage pool" means a person engaged exclusively in the business of disposing of total loss salvage vehicles, nonrepairable vehicles, or recovered stolen vehicles sent to it by, or on behalf of, insurance companies, authorized adjusters, leasing companies, self-insured persons, or financial institutions. 543.5. "Salvage vehicle rebuilder" means any person who rebuilds a total loss salvage vehicle, as defined in Section 544, or a vehicle reported for dismantling pursuant to Section 11520, for subsequent resale. A person who, for personal use, rebuilds a total loss salvage vehicle, or a vehicle reported for dismantling, and registers that vehicle in his or her name, is not a salvage vehicle rebuilder. Nothing in this section exempts a salvage vehicle rebuilder from any applicable licensing requirements under this code. 544. "Total loss salvage vehicle" means either of the following: (a) A vehicle, other than a nonrepairable vehicle, of a type subject to registration that has been wrecked, destroyed, or damaged, to the extent that the owner, leasing company, financial institution, or the insurance company that insured or is responsible for repair of the vehicle, considers it uneconomical to repair the vehicle and because of this, the vehicle is not repaired by or for the person who owned the vehicle at the time of the event resulting in damage. (b) A vehicle that was determined to be uneconomical to repair, for which a total loss payment has been made by an insurer, whether or not the vehicle is subsequently repaired, if prior to or upon making the payment to the claimant, the insurer obtains the agreement of the claimant to the amount of the total loss settlement, and informs the client that, pursuant to subdivision (a) or (b) of Section 11515, the total loss settlement must be reported to the Department of Motor Vehicles, which will issue a salvage certificate for the vehicle. 545. A "schoolbus" is a motor vehicle designed, used, or maintained for the transportation of any school pupil at or below the 12th-grade level to or from a public or private school or to or from public or private school activities, except the following: (a) A motor vehicle of any type carrying only members of the household of the owner of the vehicle. (b) A motortruck transporting pupils who are seated only in the passenger compartment, or a passenger vehicle designed for and carrying not more than 10 persons, including the driver, unless the vehicle or truck is transporting two or more disabled pupils confined to wheelchairs. (c) A motor vehicle operated by a common carrier, or by and under the exclusive jurisdiction of a publicly owned or operated transit system, only during the time it is on a scheduled run and is available to the general public, or on a run scheduled in response to a request from a disabled pupil confined to a wheelchair, or from a parent of the disabled pupil, for transportation to or from nonschool activities, and the motor vehicle is designed for and actually carries not more than 16 persons including the driver, is available to eligible persons of the general public, and the school does not provide the requested transportation service. (d) A school pupil activity bus. (e) A motor vehicle operated by a carrier licensed by the Interstate Commerce Commission which is transporting pupils on a school activity entering or returning to the state from another state or country. (f) A youth bus. (g) Notwithstanding any other provisions of this section, the governing board of a district maintaining a community college may, by resolution, designate any motor vehicle operated by or for the district, a schoolbus within the meaning of this section, if it is primarily used for the transportation of community college students to or from a public community college or to or from public community college activities. The designation shall not be effective until written notification thereof has been filed with the Department of the California Highway Patrol. (h) A state-owned motor vehicle being operated by a state employee upon the driveways, paths, parking facilities, or grounds specified in Section 21113 that are under the control of a state hospital under the jurisdiction of the State Department of Developmental Services where the posted speed limit is not more than 20 miles per hour. The motor vehicle may also be operated for a distance of not more than one-quarter mile upon a public street or highway that runs through the grounds of a state hospital under the jurisdiction of the State Department of Developmental Services, if the posted speed limit on the public street or highway is not more than 25 miles per hour and if all traffic is regulated by posted stop signs or official traffic control signals at the points of entry and exit by the motor vehicle. (i) A general public paratransit vehicle, if the general public paratransit vehicle does not duplicate existing schoolbus service, does not transport a public school pupil at or below the 12th grade level to a destination outside of that pupil's school district, and is not used to transport public school pupils in areas where schoolbus services were available during the 1986-87 school year. In areas where expanded school services require expanded transportation of public school pupils, as determined by the governing board of a school district, general public paratransit vehicles shall not be used to transport those pupils for a period of three years from the date that a need for expansion is identified. For purposes of this section, a pupil is defined as a student at or below the 12th grade level who is being transported to a mandated school activity. (j) A schoolbus with the flashing red light signal system, the amber warning system, and the schoolbus signs covered, while being used for transportation of persons other than pupils, to or from school or school related activities. (k) A motor vehicle, other than a motor vehicle described in subdivision (b), that is designed to carry not more than 25 persons including the driver, while being used for the transportation of pupils to or from school-related activities if the vehicle is operated by a passenger charter-party carrier certified and licensed by the Public Utilities Commission pursuant to Chapter 8 (commencing with Section 5351) of Division 2 of the Public Utilities Code that is not under a contractual agreement with a school or school district, and the transportation does not duplicate schoolbus service or any other transportation services for pupils contracted, arranged, or otherwise provided by the school or school district. 545.1. (a) Notwithstanding Section 545, a motor vehicle is not a schoolbus if it is operated for the purpose of transporting any pupil to or from a community college or to or from activities at that college, irrespective of the age of the pupil or the grade level of the pupil, if the pupil is a current enrollee in classes of the college providing the transportation. (b) A driver of a motor vehicle that meets the criteria established by subdivision (a) shall escort pupils as required by subdivision (d) of Section 22112 and shall meet the requirements of Section 12517. (c) This section shall apply to a community college district that includes within its boundaries one or more counties, each of which has a population of 250,000 or less. 545.5. (a) Notwithstanding Section 545, a bus of the type commonly known as a coach bus is not a schoolbus when it is operated by the Trona Unified School District to transport pupils to route-deviated school activities. (b) A coach bus operated pursuant to subdivision (a) shall be inspected annually by the Department of the California Highway Patrol, shall meet the equipment safety standards established by the federal government for schoolbuses, and shall be used to transport pupils only if the driver has obtained a certificate to operate a schoolbus pursuant to Section 12517. 546. A "school pupil activity bus" is any motor vehicle, other than a schoolbus, operated by a common carrier, or by and under the exclusive jurisdiction of a publicly owned or operated transit system, or by a passenger charter-party carrier, used under a contractual agreement between a school and carrier to transport school pupils at or below the 12th-grade level to or from a public or private school activity, or used to transport pupils to or from residential schools, when the pupils are received and discharged at off-highway locations where a parent or adult designated by the parent is present to accept the pupil or place the pupil on the bus. As used in this section, common carrier, publicly owned or operated transit system, and passenger charter-party carrier refer to carriers in business for the principal purpose of transporting members of the public on a commercial basis. This section shall not apply to a motor vehicle operated by a carrier licensed by the Interstate Commerce Commission that is transporting pupils on a school activity trip entering or returning to the state from another state or country. The driver of a school pupil activity bus shall be subject to the regulations adopted by the California Highway Patrol governing schoolbus drivers, except that the regulations shall not require drivers to duplicate training or schooling that they have otherwise received which is equivalent to that required pursuant to the regulations, and the regulations shall not require drivers to take training in first aid. However, a valid certificate to drive a school pupil activity bus shall not entitle the bearer to drive a schoolbus. 550. A "semitrailer" is a vehicle designed for carrying persons or property, used in conjunction with a motor vehicle, and so constructed that some part of its weight and that of its load rests upon, or is carried by, another vehicle. 553. "Shade trailer" means a device designed and utilized to provide shade pursuant to Section 3395 of Title 8 of the California Code of Regulations. 555. "Sidewalk" is that portion of a highway, other than the roadway, set apart by curbs, barriers, markings or other delineation for pedestrian travel. 557. A "snowmobile" is a motor vehicle designed to travel over ice or snow in whole or in part on skis, belts, or cleats, which is commonly referred to as an Over Snow Vehicle (OSV). 558. A "snow-tread tire" is a tire which has a relatively deep and aggressive tread pattern compared with conventional passenger tread pattern. 560. A "solid tire" is a tire of rubber or other resilient material which does not depend upon compressed air for the support of the load. 565. "Special construction equipment" is: (a) Any vehicle used primarily off the highways for construction purposes and which moves only occasionally over the highways and which because of the length, height, width, or unladen weight may not move over the public highways unladen without the permit specified in Section 35780. (b) Any vehicle which is designed and used primarily either for grading of highways, paving of highways, earth moving, and other construction work on highways, or for construction or maintenance work on railroad rights-of-way, and which is not designed or used primarily for the transportation of persons or property and which is only incidentally operated or moved over the highway. It includes, but is not limited to, road and railroad construction and maintenance machinery so designed and used such as portable air compressors, air drills, asphalt spreaders, bituminous mixers, bucket loaders, tracktype tractors, crawler tractors, ditchers, leveling graders, finishing machines, motor graders, paving mixers, road rollers, scarifiers, earth moving scrapers and carryalls, lighting plants, welders, pumps, water wagons, power shovels and draglines, speed swings, skip loaders, weed mowers, self-propelled and tractor-drawn earth moving equipment and machinery, including dump trucks and tractor-dump trailer combinations which either (1) are in excess of 96 inches in width or (2) which, because of their length, height or unladen weight, may not be moved on a public highway without the permit specified in Section 35780 of this code and which are not operated laden except within the boundaries of the job construction site, and other similar types of construction equipment. 570. "Special construction equipment" does not include any of the following: (a) A vehicle originally designed for the transportation of persons or property to which machinery has been attached unless specifically designated as such in Section 565. (b) Dump trucks originally designed to comply with the size and weight provisions of this code notwithstanding any subsequent modification which would require a permit, as specified in Section 35780 of this code, to operate such vehicles on a highway, truck-mounted transit mixers, cranes and shovels. 575. "Special mobile equipment" is a vehicle, not self-propelled, not designed or used primarily for the transportation of persons or property, and only incidentally operated or moved over a highway, excepting implements of husbandry. 580. A "specially constructed vehicle" is a vehicle which is built for private use, not for resale, and is not constructed by a licensed manufacturer or remanufacturer. A specially constructed vehicle may be built from (1) a kit; (2) new or used, or a combination of new and used, parts; or (3) a vehicle reported for dismantling, as required by Section 5500 or 11520, which, when reconstructed, does not resemble the original make of the vehicle dismantled. A specially constructed vehicle is not a vehicle which has been repaired or restored to its original design by replacing parts. 585. A "station wagon" is a dual purpose vehicle designed for the transportation of persons and also designed in such a manner that the seats may be removed or folded out of the way for the purpose of increasing the property carrying space within the vehicle. The term includes, but is not limited to, types of vehicles which carry the trade names of station wagon, estate wagon, town and country wagon, and country sedan. A vehicle used primarily for the transportation of cadavers to or from a funeral home, mortuary, or burial site is not a station wagon. 587. "Stop or stopping" when prohibited shall mean any cessation of movement of a vehicle, whether occupied or not, except when necessary to avoid conflict with other traffic or in compliance with the direction of a police officer or official traffic control device or signal. 590. "Street" is a way or place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel. Street includes highway. 591. A "street" or "highway" shall not include those portions of a way or place in or upon which construction, alteration, or repair work is being performed insofar as the equipment performing such work and its operation are concerned. Where the work consists of a street or highway project, the limits of the project as shown or described in the plans or specifications of the awarding body shall be so excluded with reference to the equipment actually engaged in performing the work. The authority having jurisdiction over such way or place may include any or all of the requirements set forth in Divisions 11, 12, 13, 14 and 15 in any permit issued for work on such way or place and the awarding body on any such street or highway project may include such requirements in the specifications for such project. It is the intention of the Legislature, in enacting this section, that this section shall not be construed to relieve any person from the duty of exercising due care. 592. "Highway", for the purposes of Division 3 (commencing with Section 4000), Division 12 (commencing with Section 24000), Division 13 (commencing with Section 29000), Division 14.8 (commencing with Section 34500), and Division 15 (commencing with Section 35000), does not include a way or place under the jurisdiction of a federal governmental agency, which lies on national forest or private lands, is open to public use, and for which the cost of maintenance of such way or place is borne or contributed to directly by any users thereof. 593. "Supplemental restraint system" means an automatic passive restraint system consisting of a bag that is designed to inflate upon collision, commonly referred to as an "airbag." 595. "Terminal" is a place where a vehicle of a type listed in Section 34500 is regularly garaged or maintained, or from which the vehicle is operated or dispatched. 600. A "through highway" is a highway or portion thereof at the entrance to which vehicular traffic from intersecting highways is regulated by stop signs or traffic control signals or is controlled when entering on a separated right-turn roadway by a yield-right-of-way sign. 605. "Tire traction devices" are devices or mechanisms having a composition and design capable of improving vehicle traction, braking, and cornering ability upon snow or ice-covered surfaces. Tire traction devices shall be constructed and assembled to provide sufficient structural integrity and to prevent accidental detachment from vehicles. Tire traction devices shall, at the time of manufacture or final assembly, bear a permanent impression indicating the name, initials, or trademark of the assembling company or primary manufacturer, and the country in which the devices were manufactured or assembled in final form. 610. "Tire tread" is that portion of the tire, consisting of the ribs and grooves, which comes in contact with the roadway. 611. A "toll highway" or "toll road" is a publicly owned way or place open to the use of the public for purposes of vehicular travel which use requires the payment of a fee. 612. "Tour bus" means a bus designed for carrying more than 16 passengers and the driver which is operated by or for a charter-party carrier of passengers, as defined in Section 5360 of the Public Utilities Code. 612. "Tour bus" means a bus, which is operated by or for a charter-party carrier of passengers, as defined in Section 5360 of the Public Utilities Code, or a passenger stage corporation, as defined in Section 226 of the Public Utilities Code, or any highway carrier of passengers required to register with the California Public Utilities Commission pursuant to Section 3910 of the Public Utilities Code. 615. (a) A "tow truck" is a motor vehicle which has been altered or designed and equipped for, and primarily used in the business of, transporting vehicles by means of a crane, hoist, tow bar, tow line, or dolly or is otherwise primarily used to render assistance to other vehicles. A "roll-back carrier" designed to carry up to two vehicles is also a tow truck. A trailer for hire that is being used to transport a vehicle is a tow truck. "Tow truck" does not include an automobile dismantlers' tow vehicle or a repossessor's tow vehicle. (b) "Repossessor's tow vehicle" means a tow vehicle which is registered to a repossessor licensed or registered pursuant to Chapter 11 (commencing with Section 7500) of Division 3 of the Business and Professions Code that is used exclusively in the course of the repossession business. (c) "Automobile dismantlers' tow vehicle" means a tow vehicle which is registered by an automobile dismantler licensed pursuant to Chapter 3 (commencing with Section 11500) of Division 5 and which is used exclusively to tow vehicles owned by that automobile dismantler in the course of the automobile dismantling business. 617. A "tow dolly" is a vehicle towed by a motor vehicle and designed and used exclusively to transport another motor vehicle and upon which the front or rear wheels of the towed motor vehicle are mounted, while the other wheels of the towed motor vehicle remain in contact with the ground. "Tow dolly" does not include a portable or collapsible dolly used as specified in Section 4014. 620. The term "traffic" includes pedestrians, ridden animals, vehicles, street cars, and other conveyances, either singly or together, while using any highway for purposes of travel. 625. A "traffic officer" is any member of the California Highway Patrol, or any peace officer who is on duty for the exclusive or main purpose of enforcing Division 10 (commencing with Section 20000) or 11 (commencing with Section 21000). 626. A "traffic violator school" is a business that, for compensation, provides, or offers to provide, instruction in traffic safety, including, but not limited to, classroom traffic violator curricula, for persons referred by a court pursuant to Section 42005 or to other persons who elect to attend. 626.2. A "traffic violator school branch or classroom location" is any place where a traffic violator school conducts instruction or maintains records. 626.4. A "traffic violator school instructor" is any person who provides instruction to traffic violators on behalf of a traffic violator school. 626.6. A "traffic violator school operator" is the person who directs and manages the operations of a traffic violator school. A "traffic violator school operator" may be either the traffic violator school owner or another person designated by the traffic violator school owner to personally direct and manage the traffic violator school for the traffic violator school owner. 626.8. A "traffic violator school owner" is any natural person, association, or corporation that owns a traffic violator school. 627. (a) "Engineering and traffic survey," as used in this code, means a survey of highway and traffic conditions in accordance with methods determined by the Department of Transportation for use by state and local authorities. (b) An engineering and traffic survey shall include, among other requirements deemed necessary by the department, consideration of all of the following: (1) Prevailing speeds as determined by traffic engineering measurements. (2) Accident records. (3) Highway, traffic, and roadside conditions not readily apparent to the driver. (c) When conducting an engineering and traffic survey, local authorities, in addition to the factors set forth in paragraphs (1) to (3), inclusive, of subdivision (b) may consider all of the following: (1) Residential density, if any of the following conditions exist on the particular portion of highway and the property contiguous thereto, other than a business district: (A) Upon one side of the highway, within a distance of a quarter of a mile, the contiguous property fronting thereon is occupied by 13 or more separate dwelling houses or business structures. (B) Upon both sides of the highway, collectively, within a distance of a quarter of a mile, the contiguous property fronting thereon is occupied by 16 or more separate dwelling houses or business structures. (C) The portion of highway is longer than one-quarter of a mile but has the ratio of separate dwelling houses or business structures to the length of the highway described in either subparagraph (A) or (B). (2) Pedestrian and bicyclist safety. 630. A "trailer" is a vehicle designed for carrying persons or property on its own structure and for being drawn by a motor vehicle and so constructed that no part of its weight rests upon any other vehicle. As used in Division 15 (commencing with Section 35000), "trailer" includes a semitrailer when used in conjunction with an auxiliary dolly, if the auxiliary dolly is of a type constructed to replace the function of the drawbar and the front axle or axles of a trailer. 635. A "trailer coach" is a vehicle, other than a motor vehicle, designed for human habitation or human occupancy for industrial, professional, or commercial purposes, for carrying property on its own structure, and for being drawn by a motor vehicle. A "park trailer," as described in Section 18009.3 of the Health and Safety Code, is a trailer coach. 636. A "trailer bus" is a trailer or semitrailer designed, used, or maintained for the transportation of more than 15 persons, including the driver, and includes a connected towing motor vehicle that is a motor truck, truck tractor, or bus. 640. A "transferee" is a person who has acquired the sole ownership of or an equity in a vehicle of a type required to be registered under this code. 642. A "transit bus" is any bus owned or operated by a publicly owned or operated transit system, or operated under contract with a publicly owned or operated transit system, and used to provide to the general public, regularly scheduled transportation for which a fare is charged. A general public paratransit vehicle is not a transit bus. 645. (a) A "transporter" is a person engaged in the business of moving any owned or lawfully possessed vehicle by lawful methods over the highways for the purpose of delivery of such vehicles to dealers, sales agents of a manufacturer, purchasers, or to a new location as requested by the owner. (b) The term "transporter" does not include a person engaged in the business of operating a tow car. 650. A "trolley coach" is a vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails. 655. (a) A "truck tractor" is a motor vehicle designed and used primarily for drawing other vehicles and not so constructed as to carry a load, other than a part of the weight of the vehicle and the load so drawn. As used in this section, "load" does not include items carried on the truck tractor in conjunction with the operation of the vehicle if the load carrying space for these items does not exceed 34 square feet. (b) Notwithstanding subdivision (a), a truck tractor, operated by a motor carrier whose owner is licensed by the Department of the California Highway Patrol to transport explosives pursuant to Division 14 (commencing with Section 31600), may be equipped with a cargo container used exclusively for the transportation of explosives or munitions-related security material, as specified by the United States Department of Defense. 657. A "truss" is an assemblage of beams, bars, or rods typically arranged in a triangle or combination of triangles to form a rigid framework and used as a structural support in buildings. 660. The "unladen weight" of a vehicle is the weight equipped and ready for operation on the road including the body, fenders, oil in motor, radiator full of water, with five gallons of gasoline or equivalent weight of other motor fuel; also equipment required by law, and unless exempted under Section 66l, any special cabinets, boxes or body parts permanently attached to the vehicle, and any machinery, equipment or attachment which is attendant to the efficient operation of the body or vehicle. Unladen weight shall not include any load or any machinery or mechanical apparatus, such as, but not limited to, wood saws, well-drilling machines, spray apparatus, tow truck cranes, and grinding equipment. The unladen weight of a vehicle shall have no application in determining any fee under this code or the Revenue and Taxation Code other than Section 9400. 661. Unladen weight shall not include the following machinery, equipment or attachment which is attendant to the efficient operation of the body or vehicle: (a) Equipment used for loading, compacting, or unloading of refuse. (b) Transitmix cement equipment. (c) Temporary equipment used to contain or support the load which does not change the body classification. (d) Any camper unit that is temporarily attached to a vehicle. (e) Refrigeration equipment. 665. A "used vehicle" is a vehicle that has been sold, or has been registered with the department, or has been sold and operated upon the highways, or has been registered with the appropriate agency of authority, of any other state, District of Columbia, territory or possession of the United States or foreign state, province or country, or unregistered vehicles regularly used or operated as demonstrators in the sales work of a dealer or unregistered vehicles regularly used or operated by a manufacturer in the sales or distribution work of such manufacturer. The word "sold" does not include or extend to: (1) any sale made by a manufacturer or a distributor to a dealer, (2) any sale by a new motor vehicle dealer franchised to sell a particular line-make to another new motor vehicle dealer franchised to sell the same line-make, or (3) any sale by a dealer to another dealer licensed under this code involving a mobilehome, as defined in Section 396, a recreational vehicle, as defined in Section 18010.5 of the Health and Safety Code, a commercial coach, as defined in Section 18012 of the Health and Safety Code, an off-highway motor vehicle subject to identification, as defined in Section 38012, or a commercial vehicle, as defined in Section 260. 665.5. A "U-turn" is the turning of a vehicle upon a highway so as to proceed in the opposite direction whether accomplished by one continuous movement or not. 667. (a) A "utility trailer" is a trailer or semitrailer used solely for the transportation of the user's personal property, not in commerce, which does not exceed a gross weight of 10,000 pounds or a manufacturer's gross vehicle weight rating of 10,000 pounds. (b) Notwithstanding subdivision (a), a "utility trailer" includes a trailer or semitrailer designed and used for the transportation of livestock, not in commerce, which does not exceed a gross weight of 10,000 pounds or a manufacturer's gross vehicle weight rating of 10,000 pounds. 668. A "vanpool vehicle" is any motor vehicle, other than a motortruck or truck tractor, designed for carrying more than 10 but not more than 15 persons including the driver, which is maintained and used primarily for the nonprofit work-related transportation of adults for the purposes of ridesharing. 670. A "vehicle" is a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks. 670.5. A "vehicle frame" is defined as the main longitudinal structural members of the chassis of the vehicle, or for vehicles with unitized body construction, the lowest main longitudinal structural members of the body of the vehicle, used as the major support in the construction of the motor vehicle. 671. (a) A "vehicle identification number" is the motor number, serial number, or other distinguishing number, letter, mark, character, or datum, or any combination thereof, required or employed by the manufacturer or the department for the purpose of uniquely identifying a motor vehicle or motor vehicle part or for the purpose of registration. (b) Whenever a vehicle is constructed of component parts identified with one or more different vehicle identification numbers, the vehicle identification number stamped or affixed by the manufacturer or authorized governmental entity on the frame or unitized frame and body, as applicable, and as defined in Section 670.5, shall determine the identity of the vehicle for registration purposes. 672. (a) "Vehicle manufacturer" is any person who produces from raw materials or new basic components a vehicle of a type subject to registration under this code, off-highway motorcycles or all-terrain vehicles subject to identification under this code, or trailers subject to identification pursuant to Section 5014.1, or who permanently alters, for purposes of retail sales, new commercial vehicles by converting the vehicles into house cars that display the insignia of approval required by Section 18056 of the Health and Safety Code and any regulations issued pursuant thereto by the Department of Housing and Community Development. As used in this section, "permanently alters" does not include the permanent attachment of a camper to a vehicle. (b) A vehicle manufacturer that produces a vehicle of a type subject to registration that consists of used or reconditioned parts, for the purposes of the code, is a remanufacturer, as defined in Section 507.8. (c) Unless a vehicle manufacturer either grants franchises to franchisees in this state, or issues vehicle warranties directly to franchisees in this state or consumers in this state, the manufacturer shall have an established place of business or a representative in this state. (d) The scope and application of this section are limited to Division 2 (commencing with Section 1500) and Division 5 (commencing with Section 11100). 675. (a) "Vehicle salesperson" is a person not otherwise expressly excluded by this section, who does one or a combination of the following: (1) Is employed as a salesperson by a dealer, as defined in Section 285, or who, under any form of contract, agreement, or arrangement with a dealer, for commission, money, profit, or other thing of value, sells, exchanges, buys, or offers for sale, negotiates, or attempts to negotiate, a sale, or exchange of an interest in a vehicle required to be registered under this code. (2) Induces or attempts to induce any person to buy or exchange an interest in a vehicle required to be registered, and who receives or expects to receive a commission, money, brokerage fees, profit, or any other thing of value, from either the seller or purchaser of the vehicle. (3) Exercises managerial control over the business of a licensed vehicle dealer or who supervises vehicle salespersons employed by a licensed dealer, whether compensated by salary or commission, including, but not limited to, any person who is employed by the dealer as a general manager, assistant general manager, or sales manager, or any employee of a licensed vehicle dealer who negotiates with or induces a customer to enter into a security agreement or purchase agreement or purchase order for the sale of a vehicle on behalf of the licensed vehicle dealer. (b) The term "vehicle salesperson" does not include any of the following: (1) Representatives of insurance companies, finance companies, or public officials, who in the regular course of business, are required to dispose of or sell vehicles under a contractual right or obligation of the employer, or in the performance of an official duty, or under the authority of any court of law, if the sale is for the purpose of saving the seller from any loss or pursuant to the authority of a court of competent jurisdiction. (2) Persons who are licensed as a manufacturer, remanufacturer, transporter, distributor, or representative. (3) Persons exclusively employed in a bona fide business of exporting vehicles, or of soliciting orders for the sale and delivery of vehicles outside the territorial limits of the United States. (4) Persons not engaged in the purchase or sale of vehicles as a business, disposing of vehicles acquired for their own use, or for use in their business when the vehicles have been so acquired and used in good faith, and not for the purpose of avoiding the provisions of this code. (5) Persons regularly employed as salespersons by persons who are engaged in a business involving the purchase, sale, or exchange of boat trailers. (6) Persons regularly employed as salespersons by persons who are engaged in a business activity which does not involve the purchase, sale, or exchange of vehicles, except incidentally in connection with the purchase, sale, or exchange of vehicles of a type not subject to registration under this code, boat trailers, or midget autos or racers advertised as being built exclusively for use by children. (7) Persons licensed as a vehicle dealer under this code doing business as a sole ownership or member of a partnership or a stockholder and director of a corporation or a member and manager of a limited liability company licensed as a vehicle dealer under this code. However, those persons shall engage in the activities of a salesperson, as defined in this section, exclusively on behalf of the sole ownership or partnership or corporation or limited liability company in which they own an interest or stock, and those persons owning stock shall be directors of the corporation; otherwise, they are vehicle salespersons and subject to Article 2 (commencing with Section 11800) of Chapter 4 of Division 5. (8) Persons regularly employed as salespersons by a vehicle dealer authorized to do business in California under Section 11700.1 of the Vehicle Code. 675.5. A "vehicle verifier" is a person not expressly excluded by Section 675.6 who inspects, records, documents, and submits to the department, or its authorized representative, such proof of vehicle identification as may be required by the department for the purpose of registering or transferring the ownership of vehicles. 675.6. (a) "Vehicle verifier" does not include any of the following: (1) A peace officer. (2) An authorized employee of the department. (3) A special agent of the National Auto Theft Bureau. (4) An employee of an organization certified under the provisions of Part 5 (commencing with Section 12140) of Division 2 of the Insurance Code whose duties require or authorize the verification of vehicles. (b) Any person specified in subdivision (a) may perform the duties of a vehicle verifier without obtaining the special permit required in Section 11300. 676. "Year-round registration" is a system whereby the director designates a date for the expiration of registration of a vehicle and renewal thereof in order to equalize the volume of such renewals throughout the year. 676.5. A "water tender vehicle" is a vehicle designed to carry not less than 1,500 gallons of water and used primarily for transporting and delivering water to be applied by other vehicles or pumping equipment at fire emergency scenes. 680. (a) A "youth bus" is any bus, other than a schoolbus, designed for and when actually carrying not more than 16 persons and the driver, used to transport children at or below the 12th-grade level directly from a public or private school to an organized nonschool-related youth activity within 25 miles of the school or directly from a location which provides the organized nonschool-related youth activity to a public or private school within 25 miles of that location. (b) In addition to the destinations specified in subdivision (a), a youth bus may also be used to transport children at or below the 12th-grade level to or from their place of residence if the driver has met the requirements of Section 12523 and received additional instruction and training approved by the Department of the California Highway Patrol.





VEHICLE CODE
SECTION 1500-1507
1500. (a) There is in the Transportation Agency the Department of Motor Vehicles. (b) Whenever the term "Business, Transportation and Housing Agency" appears within the Vehicle Code, it shall refer to the Transportation Agency, and whenever the term "Secretary of Business, Transportation and Housing" appears within the Vehicle Code, it shall refer to the Secretary of Transportation. 1501. The department is the successor to and is hereby vested with all of the powers, duties, purposes, responsibilities, and jurisdiction now or hereafter vested by law in the Department of Motor Vehicles, the Motor Vehicle Department, the Motor Vehicle Department of California, the Division of Motor Vehicles of the Department of Finance, the Division of Motor Vehicles of the Department of Public Works, and all other state agencies of similar designation, or in the several heads, members, officers, and employees of each thereof. 1502. The department has possession and control of all records, books, papers, offices, equipment, moneys, funds, appropriations, and all other property, real or personal, now or hereafter held for the benefit or use of any state agency mentioned in Section 1501. 1503. Except as in this division otherwise provided, the provisions of Chapter 2 (commencing at Section 11150) of Part 1 of Division 3 of Title 2 of the Government Code shall govern and apply to the conduct of the department in every respect the same as if the provisions were set forth in this code, and wherever in that chapter the term "head of the department" or similar designation occurs, for the purposes of this division, it shall mean the director. 1504. The department is under the control of a civil executive officer known as the Director of Motor Vehicles. The director shall be appointed by, and hold office at the pleasure of, the Governor. 1505. The director, with the approval of the Governor and the Secretary of Transportation, shall organize the department in a manner that he or she may deem necessary to conduct the work of the department. 1507. The director may appoint and, in accordance with law fix the salaries of: (a) A deputy director. (b) Such other officers, deputies, technical experts, and employees as may be necessary for the proper discharge of the duties of the department.





VEHICLE CODE
SECTION 1650-1685
1650. The director shall administer and enforce the provisions of this code relating to the department. 1651. (a) The director may adopt and enforce rules and regulations as may be necessary to carry out the provisions of this code relating to the department. (b) Rules and regulations shall be adopted, amended, or repealed in accordance with the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code). 1651.2. Whenever in the judgment of the department, any person has engaged, or is about to engage, in any acts or practices that constitute, or will constitute, an offense against Division 5 (commencing with Section 11100) by engaging in any act subject to license requirements without having obtained a license, the department may apply to the appropriate court for an order enjoining the acts or practices, and, upon showing by the department that the person has engaged, or is about to engage, in any of those acts or practices, an injunction, restraining order, or other order that may be appropriate shall be granted by the court, including the costs incurred by the department in obtaining the order. 1651.3. It is the policy of this state to recognize the training and experience that individuals gain while serving in the armed forces of the United States. In furtherance of this policy, the department, in conjunction with the military services of the United States, shall develop policies to assist persons who are leaving active duty to obtain commercial driver's licenses. These policies shall not waive any requisites, fees, or examinations required by law for a commercial driver's license. These policies shall specify how this training and experience may be used to obtain these licenses. The department shall consult with the Department of Veterans Affairs before adopting these policies. The department shall perform the duties required by this section within existing budgetary resources of the agency within which the department operates. 1651.5. (a) The director may assign or reassign dates for the expiration of registration for a vehicle registered pursuant to this code. The director may establish a registration year for any vehicle consisting of any period from seven months to 18 months, inclusive, with subsequent renewals being required at yearly intervals thereafter. The director shall assign an expiration date of the last day of the calendar month to all trailers and to all motor vehicles subject to additional fees under the provisions of Section 9400. Any vehicle being registered on a quarterly basis shall be assigned or reassigned an expiration date of December 31 for the registration year. The director shall have the authority to exclude from year-round registration any type of vehicle that the director deems appropriate for exclusion. (b) In order to implement a year-round registration for vehicles registered pursuant to the International Registration Plan as described in Article 4 (commencing with Section 8050) of Chapter 4 of Division 3, the director, on or before January 1, 2009, shall assign or reassign a date for the expiration of registration of those vehicles described in this subdivision and may utilize the applicable practices and procedures set forth under subdivision (a) in order to implement this subdivision. 1652. (a) The department shall prescribe and provide suitable forms of applications, certificates of ownership, registration cards, drivers' licenses, and all other forms requisite or deemed necessary for the purposes of this code and shall prepay all transportation charges thereon. (b) The department may require that any application or document filed with the department be signed and submitted under penalty of perjury. 1653. The department shall examine and determine the genuineness and regularity of every application or document filed with it under this code and may require additional information or reject any such application or document if not satisfied of the genuineness and regularity thereof or the truth of any statement contained therein. 1653.5. (a) Each form prescribed by the department for use by an applicant for the issuance or renewal by the department of a driver's license or identification card pursuant to Division 6 (commencing with Section 12500) shall contain a section for the applicant's social security account number. (b) Each form prescribed by the department for use by an applicant for the issuance, renewal, or transfer of the registration or certificate of title to a vehicle shall contain a section for the applicant's driver's license or identification card number. (c) Except as provided in Section 12801, a person who submits to the department a form that, pursuant to subdivision (a), contains a section for the applicant's social security account number, or pursuant to subdivision (b), the applicant's driver's license or identification card number, if any, shall furnish the appropriate number in the space provided. (d) Except as provided in Section 12801, the department shall not complete an application that does not include the applicant's social security account number or driver's license or identification card number as required under subdivision (c). (e) An applicant's social security account number shall not be included by the department on a driver's license, identification card, registration, certificate of title, or any other document issued by the department. (f) Notwithstanding any other law, information regarding an applicant's social security account number, or ineligibility for a social security number, obtained by the department pursuant to this section, is not a public record and shall not be disclosed by the department except for any of the following purposes: (1) Responding to a request for information from an agency operating pursuant to, and carrying out the provisions of, Part A (Block Grants to States for Temporary Assistance for Needy Families), or Part D (Child Support and Establishment of Paternity), of Subchapter IV of Chapter 7 of Title 42 of the United States Code. (2) Implementation of Section 12419.10 of the Government Code. (3) Responding to information requests from the Franchise Tax Board for the purpose of tax administration. (g) This section shall become operative on January 1, 2015, or on the date that the director executes a declaration pursuant to Section 12801.11, whichever is sooner. (h) This section shall become inoperative on the effective date of a final judicial determination made by any court of appellate jurisdiction that any provision of the act that added this section, or its application, either in whole or in part, is enjoined, found unconstitutional, or held invalid for any reason. The department shall post this information on its Internet Web site. 1653.5. (a) Each form prescribed by the department for use by an applicant for the issuance or renewal by the department of a driver's license or identification card pursuant to Division 6 (commencing with Section 12500) shall contain a section for the applicant's social security account number. (b) Each form prescribed by the department for use by an applicant for the issuance, renewal, or transfer of the registration or certificate of title to a vehicle shall contain a section for the applicant's driver's license or identification card number. (c) A person who submits to the department a form that, pursuant to subdivision (a), contains a section for the applicant's social security account number, or pursuant to subdivision (b), the applicant's driver's license or identification card number, if any, shall furnish the appropriate number in the space provided. (d) The department shall not complete an application that does not include the applicant's social security account number or driver's license or identification card number as required under subdivision (c). (e) An applicant's social security account number shall not be included by the department on a driver's license, identification card, registration, certificate of title, or any other document issued by the department. (f) Notwithstanding any other law, information regarding an applicant's social security account number, obtained by the department pursuant to this section, is not a public record and shall not be disclosed by the department except for any of the following purposes: (1) Responding to a request for information from an agency operating pursuant to, and carrying out the provisions of, Part A (Block Grants to States for Temporary Assistance for Needy Families), or Part D (Child Support and Establishment of Paternity), of Subchapter IV of Chapter 7 of Title 42 of the United States Code. (2) Implementation of Section 12419.10 of the Government Code. (3) Responding to information requests from the Franchise Tax Board for the purpose of tax administration. (g) This section shall become operative on the effective date of a final judicial determination made by any court of appellate jurisdiction that any provision of the act that added this section, or its application, either in whole or in part, is enjoined, found unconstitutional, or held invalid for any reason. The department shall post this information on its Internet Web site. 1654. The director may purchase or lease such real estate and erect such buildings as the department or any of its divisions require, subject to the approval of the Department of General Services. 1655. (a) The director and deputy director of the department, the Deputy Director, Investigations Division, the Chief, Field Investigations Branch, and the investigators of the department, including rank-and-file, supervisory, and management personnel, shall have the powers of peace officers for the purpose of enforcing those provisions of law committed to the administration of the department or enforcing the law on premises occupied by the department. (b) Any person designated in subdivision (a) may inspect any vehicle of a type required to be registered under this code, or any component part thereof, in any garage, repair shop, parking lot, used car lot, automobile dismantler's lot, steel mill, scrap metal processing facility, or other establishment engaged in the business of selling, repairing, or dismantling vehicles, or reducing vehicles or the integral parts thereof to their component materials for the purpose of investigating the title and registration of the vehicle, inspecting wrecked or dismantled vehicles, or locating stolen vehicles. 1656. (a) The department shall publish the complete text of the California Vehicle Code together with other laws relating to the use of highways or the operation of motor vehicles once every two years. The department, upon written request of any state or local governmental officer or agency, any federal agency, any public secondary school in this state, or any other person, shall distribute the California Vehicle Code at a charge sufficient to pay the entire cost of publishing and distributing the code. With regard to public secondary schools, the quantities shall be sufficient to provide one copy for each driver training and education instructor and one copy for each public secondary school library. In determining the amount of the charge, a fraction of a dollar shall be disregarded, unless it exceeds fifty cents ($0.50), in which case it shall be treated as one full dollar ($1). The receipts from the sale of such publications shall be deposited in the Motor Vehicle Account, with the intent to reimburse the department for the entire cost to print and distribute the Vehicle Code. (b) The department shall publish a synopsis or summary of the laws regulating the operation of vehicles and the use of the highways and may deliver a copy thereof without charge with each original vehicle registration and with each original driver's license. The department shall publish such number of copies of the synopsis or summary in the Spanish language as the director determines are needed to meet the demand for such copies. The department shall furnish both English and Spanish copies to its field offices and to law enforcement agencies for general distribution and, when it does so, shall furnish the copies without charge. 1656.2. The department shall prepare and publish a printed summary describing the penalties for noncompliance with Sections 16000 and 16028, which shall be included with each motor vehicle registration, registration renewal, and transfer of registration and with each driver's license and license renewal. The printed summary may contain, but is not limited to, the following wording: "IMPORTANT FACTS ABOUT ENFORCEMENT OF CALIFORNIA'S COMPULSORY FINANCIAL RESPONSIBILITY LAW California law requires every driver to carry written evidence of valid automobile liability insurance, a thirty-five thousand dollar ($35,000) bond, a thirty-five thousand dollar ($35,000) cash deposit, or a certificate of self-insurance that has been issued by the Department of Motor Vehicles. You must provide evidence of financial responsibility when you renew the registration of a motor vehicle, and after you are cited by a peace officer for a traffic violation or are involved in any traffic accident. The law requires that you provide the officer with the name and address of your insurer and the policy identification number. Your insurer will provide written evidence of this number. Failure to provide evidence of your financial responsibility can result in fines of up to five hundred dollars ($500) and loss of your driver's license. Falsification of evidence can result in fines of up to seven hundred fifty dollars ($750) or 30 days in jail, or both, in addition to a one-year suspension of driving privileges. Under existing California law, if you are involved in an accident that results in damages of over seven hundred fifty dollars ($750) to the property of any person or in any injury or fatality, you must file a report of the accident with the Department of Motor Vehicles within 10 days of the accident. If you fail to file a report or fail to provide evidence of financial responsibility on the report, your driving privilege will be suspended for up to four years. Your suspension notice will notify you of the department's action and of your right to a hearing. Your suspension notice will also inform you that if you request a hearing, it must be conducted within 30 days of your written request, and that a decision is to be rendered within 15 days of the conclusion of the hearing." 1656.3. (a) The department shall include within the California Driver's Handbook, as specified in subdivision (b) of Section 1656, language regarding each of the following: (1) Rail transit safety. (2) Abandonment or dumping of any animal on a highway. (3) The importance of respecting the right-of-way of others, particularly pedestrians, bicycle riders, and motorcycle riders. (b) In order to minimize costs, the language referred to in paragraphs (2) and (3) of subdivision (a) shall be initially included at the earliest opportunity when the handbook is otherwise revised or reprinted. 1656.4. (a) The department, in consultation with the Department of Consumer Affairs, shall make available on its Internet web site, on or before July 1, 1997, information to assist consumers who plan to purchase a vehicle or who have purchased a vehicle. The information shall, at a minimum, contain the names, addresses, electronic addresses, and telephone numbers of all of the following: (1) State and federal government agencies that deal with consumer affairs and vehicles. (2) Vehicle arbitration services. (3) Consumer organizations that provide information and direct assistance to consumers with vehicle concerns. (b) Money deposited in the Consumer Fraud Protection Program Fund shall be available, upon appropriation by the Legislature, for the consumer protection activities of the department, including, but not limited to, expenditures by the department to comply with the requirements specified in subdivision (a). 1656.5. (a) The Legislature finds that the department, by virtue of its interaction with millions of California drivers and vehicle owners each year, represents a valuable resource for the disbursement of important public safety and consumer information. (b) The department may enter into a contract with a private vendor for the purpose of acquiring and utilizing message display systems. These systems may be used on the department's mailings or other property owned, leased, or controlled by the department. The information displayed shall be of appropriate benefit to the motoring public and the state's consumers, as determined by the department. (c) A vendor under contract with the department may utilize a portion of the available time and space on the display systems that it provides for the purpose of advertising products or services. The advertising on a message display system shall not exceed 15 minutes in a 60-minute period. The extent of the access shall be established under the terms of the contract. (d) The department shall determine whether a vendor's advertised product or service is consistent with and appropriate to the best interests of the motoring public. The department shall not enter into a contract with a vendor whose advertised product or service the department determines is not consistent with or appropriate to the best interests of the motoring public. 1657. The director may assign qualified employees of the department to advise with the State Board of Education and with the governing boards of districts maintaining secondary schools in the preparation, establishment, and conduct of courses in automobile driver education and automobile driver training in secondary schools under the provisions of the Education Code. 1658. The department may pay membership fees, join, and participate in affairs of associations having for their purpose the interchange of information relating to the registration of vehicles and the issuance of operators' licenses, financial responsibility, and subjects relating to highway safety and to the powers and duties of the department. 1659. The department may develop criteria, establish standards for, and coordinate a program of motor vehicle driver education and motor vehicle driver training for drivers whose licenses have been suspended or revoked. The purpose of the program shall be to promote safe driving. To carry out this purpose the department may seek the advice or cooperation of the schools, courts, and other interested persons. 1660. (a) Any institution or organization described in subdivision (o) of Section 286 shall keep the following records for not less than three years: (1) The name and address of each vehicle donor and the year, make, vehicle identification number, and, if available, the license plate number of the donated vehicle. (2) An itemized listing by vehicle identification number of the date each vehicle was donated, the date sold, and the amount for which it was sold. (3) If the donated vehicle is being sold by an institution or organization on behalf of another institution or organization pursuant to paragraph (2) of subdivision (o) of Section 286, the following documentation shall be retained in the following manner: (A) A signed, written agreement shall remain on the premises that identifies the percentage of the proceeds that may be retained by the selling institution or organization, a statement that each vehicle meets, or, unless sold at wholesale, by the time of sale will meet, the equipment requirements of Division 12 (commencing with Section 24000), and a statement that each vehicle is in compliance, or, unless sold at wholesale, at the time of sale will be in compliance, with emission control certification requirements pursuant to subdivision (b) of Section 44015 of the Health and Safety Code. (B) A separate listing that identifies each vehicle by year, make, and vehicle identification number. (C) All itemized listings pursuant to subparagraph (D) of paragraph (2) of subdivision (o) of Section 286. (D) The selling institution or organization shall retain all documentation pertaining to the sale of vehicles on behalf of another institution or organization in the same manner as is required for the sale of vehicles donated to the selling institution or organization. (b) The department may inspect the records of any nonprofit institution or organization that obtains donated vehicles in order to ascertain whether it meets the conditions specified in subdivision (o) of Section 286. 1661. (a) Except for vehicles registered pursuant to Article 5 (commencing with Section 9700) of Chapter 6 of Division 3, the department shall notify the registered owner of each vehicle of the date that the registration renewal fees for the vehicle are due, at least 60 days prior to that due date. The department shall indicate the fact that the required notice was mailed by a notation in the department's records. (b) The department shall include in any final notice of delinquent registration provided to the registered owner of a vehicle whose registration has not been properly renewed as required under this code, information relating to the potential removal and impoundment of that vehicle under subdivision (o) of Section 22651. (c) Commencing on May 1, 2011, subdivision (a) shall not apply to vehicles with registration expiring on or after July 1, 2011. This subdivision shall become inoperative on January 1, 2012. 1662. Notwithstanding any other provision of law, the department shall have no duty to investigate alleged violations of the provisions of Chapter 3 (commencing with Section 11500) of Division 5 by any person defined as an "automobile dismantler" by subdivision (b) of Section 220 and Section 221, unless notice of such alleged violations has been given the department by the district attorney, county counsel, city attorney, or other duly constituted law enforcement agency. 1663. (a) The department shall, in the synopsis or summary of laws regulating the operation of vehicles and the use of the highways published under subdivision (b) of Section 1656, provide a warning which states that, in certain accidents, the lack of a shoulder harness may cause, or aggravate, serious and fatal injuries, especially to the head, spinal column, and abdominal organs. (b) Nothing in this section limits or impairs the rights or remedies that are otherwise available to any person under existing law. 1664. The department shall publicize the Safe Streets Act of 1994 when mailing vehicle registrations, driver's licenses, and driver's license suspension and revocation notices, and in other educational materials made available by the department. 1665. Notwithstanding any other provision of law, the department by rule or regulation may provide for the issuance and renewal on a two-year basis of licenses or other indicia of authority issued pursuant to this code by the department or any agency in the department. The department may, by rule or regulation, set the fee for such two-year license, certificate of registration, or other indicia, not to exceed twice the annual fee for issuance or renewal set by statute. This section shall not apply to any driver's license or vehicle or vessel license or certificate of registration issued pursuant to this code. 1666. The department shall do all of the following: (a) Include at least one question in each test of an applicant's knowledge and understanding of the provisions of this code, as administered pursuant to Section 12804 or 12814, to verify that the applicant has read and understands the table of blood alcohol concentration published in the Driver's Handbook made available pursuant to subdivision (b) of Section 1656. In order to minimize costs, the question or questions shall be initially included at the earliest opportunity when the test is otherwise revised or reprinted. (b) Include with each driver's license or certificate of renewal and each vehicle registration renewal mailed by the department, information that shows with reasonable certainty the amount of alcohol consumption necessary for a person to reach a 0.08 percent blood alcohol concentration by weight. (c) Include at least one question in each test of an applicant's knowledge and understanding of the provisions of this code as administered pursuant to Section 12804 or 12814, to verify that the applicant has read and understands the rights of pedestrians. In order to minimize costs, the question or questions shall be initially included at the earliest opportunity when the test is otherwise revised or reprinted. 1666.1. Upon updating the California Driver's Handbook, the department shall include at least one question in any of the noncommercial driver's license examinations, as administered under Section 12804.9, of an applicant's knowledge and understanding of this code, to verify that the applicant has an understanding of the risks and punishments associated with eluding a pursuing officer's motor vehicle. 1666.5. The department shall include, on a rotating basis, at least one question in at least 20 percent of the tests of an applicant's knowledge and understanding of the provisions of this code, as administered pursuant to Section 12803 or 12814, to verify that the applicant has read and understands that the abandonment or dumping of any animal is a criminal offense that can create a severe traffic safety hazard. 1667. (a) As part of its motor vehicle registration and registration renewal process, other than upon the initial registration of a new motor vehicle, the department shall inform motor vehicle owners of the vehicle smog indexing program. That notice shall be in the form developed by the State Air Resources Board in consultation with the department pursuant to subdivision (c) of Section 44254 of the Health and Safety Code. (b) This section shall become inoperative five years from the date determined pursuant to Section 32 of the act adding this section, and on the January 1 following that date is repealed. 1668. (a) The department may provide fingerprint service to the general public. When that service is provided, the department shall charge a fee of not less than five dollars ($5) for each person fingerprinted. (b) Whenever the department submits the fingerprints of an applicant for a license or certificate to the Department of Justice, and is required to pay a fee pursuant to subdivision (e) of Section 11105 of the Penal Code, the department, without the necessity of adopting regulations, shall charge the applicant a fee sufficient to reimburse the department for that fee. 1669. It is the intent of the Legislature that the department implement procedures to ensure, to the fullest extent permitted by the resources made available to it, that any person who is requesting services relating to registration of vessels or vehicles, or who is applying for an original or renewal of a driver's license or identification card, will not be required under normal circumstances to wait in any one line for service longer than one-half hour during the department's published or posted hours of operation. Every office of the department shall have posted, at or near the entrance thereto, its hours of operation. 1670. A licensee issued an occupational license by the department and conducting more than one type of business from an established place of business shall provide a clear physical division between the types of business involving vehicles or their component parts. The established place of business shall be open to inspection of the premises, pertinent records, and vehicles by any peace officer during business hours. 1671. (a) The established place of business of a dealer, remanufacturer, remanufacturer branch, manufacturer, manufacturer branch, distributor, distributor branch, automobile driving school, or traffic violator school shall have an office and a dealer, manufacturer, or remanufacturer shall also have a display or manufacturing area situated on the same property where the business peculiar to the type of license issued by the department is or may be transacted. When a room or rooms in a hotel, roominghouse, apartment house building, or a part of any single- or multiple-unit dwelling house is used as an office or offices of an established place of business, the room or rooms shall be devoted exclusively to and occupied for the office or offices of the dealer, manufacturer, manufacturer branch, remanufacturer, remanufacturer branch, distributor, distributor branch, automobile driving school, or traffic violator school, shall be located on the ground floor, and shall be so constructed as to provide a direct entrance into the room or rooms from the exterior of the building. A dealer who does not offer new or used vehicles for sale at retail, a dealer who has been issued an autobroker's endorsement to his or her dealer's license and who does not also sell motor vehicles at retail, or a dealer who is a wholesaler involved for profit only in the sale of vehicles between licensed dealers, shall have an office, but a display area is not required. (b) The established place of business of an automobile dismantler shall have an office and a dismantling area located in a zone properly zoned for that purpose by the city or county. 1672. (a) The department shall make available, in the public area of each office of the department where applications for driver's licenses or identification cards are received, space for a sign or notice briefly describing the Uniform Anatomical Gift Act (Chapter 3.5 (commencing with Section 7150) of Part 1 of Division 7 of the Health and Safety Code) and information about the California Organ and Tissue Donor Registry and about how private donations may be made. (b) The department shall make available to the public in its offices a pamphlet or brochure providing more detailed information on the California Organ and Tissue Donor Registry and information about how private donations may be made. (c) The signs, notices, pamphlets, and brochures specified in subdivisions (a) and (b) shall be provided without cost to the department by responsible private parties associated with the anatomical gift program. 1672.3. (a) The director shall determine the date when the department's inventory of driver's license and identification card forms, as that inventory exists in accordance with the law in effect on December 31, 1998, has been depleted. (b) The director shall make written notification of the date determined under subdivision (a) to the following persons: (1) The Secretary of State. (2) The Chair of the Senate Committee on Transportation. (3) The Chair of the Assembly Committee on Transportation. (c) The written notice required under subdivision (b) shall state that it is being submitted in accordance with this section. 1672.5. For purposes of providing a means of identifying persons who have elected to make an anatomical gift under the Uniform Anatomical Gift Act (Chapter 3.5 (commencing with Section 7150) of Part 1 of Division 7 of the Health and Safety Code), the department shall design the driver's licenses and identification cards in order that a sticker may be affixed to the licenses and cards. The sticker shall indicate a person's willingness to make an anatomical gift, and shall be affixed with a substance that is resistant to any unintentional removal. 1673. For the purposes of refunding the smog impact fee, as prescribed in Sections 1673.2 and 1673.4, "registered owner or lessee" means the person or persons to whom the registration or title was issued when the transaction that included the imposition of the smog impact fee under Chapter 3.3 (commencing with Section 6261) of Part 1 of Division 2 of the Revenue and Taxation Code was completed. 1673.2. (a) The department, in coordination with the Department of Finance, shall do all of the following: (1) Search its records to identify the registered owner or lessee. Except as required under Section 1673.4, the department shall mail to the registered owner or lessee a refund notification form notifying the registered owner or lessee that he or she is eligible for a refund of the smog impact fee. This form shall identify the vehicle make and year, and include a refund claim that shall be signed, under penalty of perjury, and returned to the department. (2) Shall acknowledge by mail claims for refund from registered owners or lessees received prior to the effective date of this section. (3) Except as provided in Section 1673.4, shall verify whether the information provided in any claim is true and correct and shall refund the three hundred dollar ($300) smog impact fee, plus the amount of any penalty collected for late payment of the smog impact fee, and any interest earned on those charges, to the person shown to be the registered owner or lessee. (b) Notwithstanding any other provision of law, interest shall be paid on all claims at a single annual rate, calculated by the Department of Finance, that averages the annualized interest rates earned by the Pooled Money Investment Account for the period beginning October 1990 and ending on the effective date of this section. Interest on each refund shall be calculated from the date the smog impact fee and vehicle registration transaction was completed to the date the refund is issued. Accrual of interest shall terminate one year after the effective date of this section. (c) (1) Notwithstanding any other provision of law, those who paid the smog impact fee between October 15, 1990, and October 19, 1999, may file a claim for refund. (2) Claims for refund by a registered owner or lessee shall be filed with the Department of Motor Vehicles within three years of the effective date of this section. 1673.4. (a) Any claim submitted by a person other than a registered owner or lessee shall be filed within 30 days from the effective date of this section. (b) If a claimant other than the registered owner or lessee files a claim, or has filed a claim prior to the effective date of this section, for refund in a manner and form verified by the department, the department shall mail a notification to the registered owner or lessee informing that person that he or she is eligible for a refund of the smog impact fee and that a competing claim for that fee has been filed. The registered owner or lessee shall have three years from the effective date of this section to inform the department that the registered owner or lessee opposes payment of the smog impact fee refund to the competing claimant. In that case, the refund shall be made to the registered owner or lessee and notice of that action shall be sent to the competing claimant. If the registered owner or lessee does not notify the department within the three-year period that he or she opposes the payment, the department shall pay the refund to the competing claimant. (c) If any refund paid by the department under this section is disputed, any party that filed a claim may commence an action in small claims court. The small claims court action may not be filed if three years or more have elapsed from the date the department mailed the refund to either party. (d) The State of California, its departments and agencies, and their officers or employees shall not be a party to a lawsuit between competing claimants relating to smog impact fee refunds. 1673.5. The department shall attempt to recover any refund of the smog impact fee, or part thereof, that is erroneously made. Collection shall be initiated if the recipient fails to respond to the Department of Motor Vehicles' notice to pay the erroneous refund within 90 days in accordance with existing collection procedures utilized by the department. 1673.6. It is unlawful to use a false or fictitious name, to knowingly make any false statement, or conceal any material fact on a refund claim for the smog impact fee that is filed with the department. A violation of this provision is punishable under Section 72 of the Penal Code. Any signed claim form submitted to the department for a refund of the smog impact fee shall be signed under penalty of perjury. 1673.7. (a) The department shall include the following notice with each check issued as a refund of the smog impact fee: "The enclosed check is a refund of the $300 Smog Impact Fee you paid to the Department of Motor Vehicles when you initially registered an out-of-state vehicle in California. In the case of Jordan v. Department of Motor Vehicles (1999) 75 Cal.App.4th 449, the court ruled the smog impact fee unconstitutional. The enclosed check includes an interest payment which has been calculated from the date the fee was paid to the date the refund is issued. "If you have any questions about the enclosed refund, please contact your local office of the Department of Motor Vehicles." (b) No notice other than the one required under subdivision (a) may be included with a smog impact fee refund check. 1674. The department shall develop a program to foster a positive atmosphere that is conducive to encouraging drivers to succeed in passing any visual tests or written or behind-the-wheel driving tests administered by the department. 1674.4. In order to address any conscious or unconscious bias against a driver by persons administering the department's visual tests or written or behind-the-wheel driving tests, the department shall implement a component in its training and development program for test administrators that encourages sensitivity to the issues of youth and aging. 1674.6. (a) The Legislature finds and declares that persons should be provided with transportation alternatives when their privilege to drive is lost because of failure to pass visual tests or written or behind-the-wheel driving tests. While a partial obligation for addressing this issue rests with families, communities, social service agencies, and local governments, the Legislature recognizes an obligation to promote, facilitate, and share in the funding of alternative modes of transportation for persons who have lost their driving privilege. (b) Accordingly, it is the intent of the Legislature, not later than January 1, 2003, to provide an affordable and equitable mode of transportation to fulfill the reasonable transportation needs of persons who have lost their driver's licenses due to a failure to pass a visual test or a written or behind-the-wheel driving test. (c) In furtherance of the intent set forth in subdivision (b), the Business, Transportation and Housing Agency shall establish a task force to analyze potential sources of funding and modes of transportation for persons who have lost their driver's licenses due to a failure to pass a visual test or a written or behind-the-wheel driving test. The Business, Transportation and Housing Agency shall prepare and submit a report on the findings of the task force to the Legislature not later than July 1, 2001. 1675. (a) The director shall establish standards and develop criteria for the approval of initial and renewal driver improvement courses specifically designed for the safe driving needs of drivers who are 55 years of age or older, which shall be known as mature driver improvement courses. (b) The curricula for the courses provided for in subdivision (a) shall include, but is not limited to, all of the following components: (1) How impairment of visual and audio perception affects driving performance and how to compensate for that impairment. (2) The effects of fatigue, medications, and alcohol on driving performance, when experienced alone or in combination, and precautionary measures to prevent or offset ill effects. (3) Updates on rules of the road and equipment, including, but not limited to, safety belts and safe and efficient driving techniques under present day road and traffic conditions. (4) How to plan travel time and select routes for safety and efficiency. (5) How to make crucial decisions in dangerous, hazardous, and unforeseen situations. (c) The initial mature driver improvement course shall include not less than 400 minutes of instruction, and shall not exceed 25 students per single day of instruction or 30 students per two days of instruction. (d) Upon satisfactory completion of an initial mature driver improvement course, participants shall receive and retain a certificate provided by the department, awarded and distributed by the course provider, which shall be suitable evidence of satisfactory course completion, and eligibility for three years, from the date of completion, for the mature driver vehicle liability insurance premium reduction pursuant to Section 11628.3 of the Insurance Code. (e) (1) The certificate may be renewed by successfully completing a subsequent renewal mature driver improvement course within one year of the expiration of the certificate, or if more than one year has elapsed since the expiration, a mature driver improvement course in accordance with the standards established in subdivision (c). (2) The renewal mature driver improvement course shall include not less than 240 minutes of instruction. (f) For the purposes of this section, and Sections 1676 and 1677, "course provider" means any person offering a mature driver improvement course approved by the department pursuant to subdivision (a). 1676. (a) A course provider conducting a mature driver improvement course pursuant to Section 1675 may charge a tuition not to exceed thirty dollars ($30). (b) A course provider shall issue a receipt for the tuition it collects from an individual who registers for or attends a mature driver improvement course. (c) The department shall charge a fee not to exceed three dollars ($3) for each completion certificate issued to a mature driver improvement course provider, pursuant to subdivision (d) of Section 1675. The amount of the fee shall be determined by the department and shall be sufficient to defray the actual costs incurred by the department for administering the mature driver improvement program, for evaluating the program, and for any other activities deemed necessary by the department to assure high quality education for participants of the program. A course provider shall not charge a fee in excess of the fee charged by the department pursuant to this subdivision for furnishing a certificate of completion or duplicate thereof. The department shall transmit all fees it receives for deposit in the Motor Vehicle Account in the State Transportation Fund pursuant to Section 42270. 1677. (a) The department may collect a fee, to be determined by the department, from each course provider who shall be responsible for the development and operation of a mature driver improvement course, for the approval of the course, but not to exceed the actual cost of approval of the course. The department shall transmit all fees it receives for deposit in the Motor Vehicle Account in the State Transportation Fund pursuant to Section 42270. (b) Each course provider, who has received course approval from the department, is responsible for the delivery, instruction, and content of his or her mature driver improvement course. (c) The department shall investigate claims of impropriety on the part of a course provider. The department may withdraw the approval of courses in violation of Section 1675 or 1676, as determined by the department, for just cause, including, but not limited to any of the following: (1) Furnishing course completion certificates to course enrollees prior to, or in the absence of, completion of the curriculum specified in subdivisions (b) and (c) of Section 1675. (2) Charging fees in excess of the amounts specified in subdivisions (a) and (c) of Section 1676. (d) Mature driver improvement courses approved by the department shall continue to be approved until either of the following occurs: (1) The course provider does not meet the conditions of approval. (2) The department finds just cause to terminate the approval pursuant to subdivision (c). 1678. (a) Between January 1, 2004, and December 31, 2004, inclusive, the fee amounts set forth in Section 488.385 of the Code of Civil Procedure, Section 10902 of the Revenue and Taxation Code, and Sections 4604, 5014, 5036, 6700.25, 9102.5, 9250.8, 9250.13, 9252, 9254, 9258, 9261, 9265, 9702, 11515, 11515.2, 14900, 14900.1, 14901, 14902, 15250.6, 15250.7, 15255.1, 15255.2, 38121, 38225.4, 38225.5, 38232, 38255, 38260, and 38265 shall be the base fee amounts charged by the department. (b) On January 1, 2005, and every January 1 thereafter, the department shall adjust the fees imposed under the sections listed in subdivision (a) by increasing each fee in an amount equal to the increase in the California Consumer Price Index for the prior year, as calculated by the Department of Finance, with amounts equal to or greater than fifty cents ($0.50) rounded to the next highest whole dollar. (c) Any increases to the fees imposed under the sections listed in subdivision (a) that are enacted by legislation subsequent to January 1, 2005, shall be deemed to be changes to the base fee for purposes of the calculation performed pursuant to subdivision (b). 1679. On and after July 1, 2006, in any document mailed by the department that offers a person the opportunity to register to vote pursuant to the National Voter Registration Act of 1993 (42 U.S.C. Sec. 1973gg), the department shall include a notice informing prospective voters that if they have not received voter registration information within 30 days of requesting it, they should contact their local elections office or the office of the Secretary of State. 1685. (a) In order to continue improving the quality of products and services it provides to its customers, the department, in conformance with Article 4 (commencing with Section 19130) of Chapter 5 of Part 2 of Division 5 of Title 2 of the Government Code, may establish contracts for electronic programs that allow qualified private industry partners to join the department in providing services that include processing and payment programs for vehicle registration and titling transactions. (b) (1) The department may enter into contractual agreements with qualified private industry partners. There are the following three types of private industry partnerships authorized under this section: (A) First-line business partner is an industry partner that receives data directly from the department and uses it to complete registration and titling activities for that partner's own business purposes. (B) First-line service provider is an industry partner that receives information from the department and then transmits it to another authorized industry partner. (C) Second-line business partner is a partner that receives information from a first-line service provider. (2) The private industry partner contractual agreements shall include the following minimum requirements: (A) Filing of an application and payment of an application fee, as established by the department. (B) Submission of information, including, but not limited to, fingerprints and personal history statements, focusing on and concerning the applicant's character, honesty, integrity, and reputation as the department may consider necessary. (C) Posting a bond in an amount consistent with Section 1815. (3) The department shall, through regulations, establish any additional requirements for the purpose of safeguarding privacy and protecting the information authorized for release under this section. (c) The director may establish, through the adoption of regulations, the maximum amount that a qualified private industry partner may charge its customers in providing the services authorized under subdivision (a). (d) The department shall charge a three-dollar ($3) transaction fee for the information and services provided under subdivision (a). The private industry partner may pass the transaction fee to the customer, but the total charge to a customer may not exceed the amount established by the director under subdivision (c). (e) All fees collected by the department pursuant to subdivision (d) shall be deposited in the Motor Vehicle Account. On January 1 of each year, the department shall adjust the fee in accordance with the California Consumer Price Index. The amount of the fee shall be rounded to the nearest whole dollar, with amounts equal to, or greater than, fifty cents ($0.50) rounded to the next highest whole dollar. (f) The department shall adopt regulations and procedures that ensure adequate oversight and monitoring of qualified private industry partners to protect vehicle owners from the improper use of vehicle records. These regulations and procedures shall include provisions for qualified private industry partners to periodically submit records to the department, and the department shall review those records as necessary. The regulations shall also include provisions for the dedication of department resources to program monitoring and oversight; the protection of confidential records in the department's files and databases; and the duration and nature of the contracts with qualified private industry partners. (g) The department shall, annually, by October 1, provide a report to the Legislature that shall include all of the following information gathered during the fiscal year immediately preceding the report date: (1) Listing of all qualified private industry partners, including names and business addresses. (2) Volume of transactions, by type, completed by business partners. (3) Total amount of funds, by transaction type, collected by business partners. (4) Total amount of funds received by the department. (5) Description of any fraudulent activities identified by the department. (6) Evaluation of the benefits of the program. (7) Recommendations for any administrative or statutory changes that may be needed to improve the program. (h) Nothing in this section impairs or limits the authority provided in Section 4610 or Section 12155 of the Insurance Code.





VEHICLE CODE
SECTION 2400-2429.5
2400. (a) The commissioner shall administer Chapter 4 (commencing with Section 10850) of Division 4, Article 3 (commencing with Section 17300) of Chapter 1 of Division 9, Division 10 (commencing with Section 20000), Division 11 (commencing with Section 21000) except Chapter 11 (commencing with Section 22950), Division 12 (commencing with Section 24000), Division 13 (commencing with Section 29000), Division 14 (commencing with Section 31600), Division 14.1 (commencing with Section 32000), Division 14.5 (commencing with Section 33000), Division 14.7 (commencing with Section 34000), Division 14.8 (commencing with Section 34500), Division 15 (commencing with Section 35000), Division 16 (commencing with Section 36000) except Chapter 2 (commencing with Section 36100) and Chapter 3 (commencing with Section 36300), and Division 16.5 (commencing with Section 38000) except Chapter 2 (commencing with Section 38010). (b) The commissioner shall enforce all laws regulating the operation of vehicles and the use of the highways except that, on ways or places to which Section 592 makes reference, the commissioner shall not be required to provide patrol or enforce any provisions of this code other than those provisions applicable to private property. (c) The commissioner shall not be required to provide patrol for or enforce Division 16.5 (commencing with Section 38000). (d) The commissioner shall have full responsibility and primary jurisdiction for the administration and enforcement of the laws, and for the investigation of traffic accidents, on all toll highways and state highways constructed as freeways, including transit-related facilities located on or along the rights-of-way of those toll highways or freeways, except facilities of the San Francisco Bay Area Rapid Transit District. However, city police officers while engaged primarily in general law enforcement duties may incidentally enforce state and local traffic laws and ordinances on toll highways and state freeways within incorporated areas of the state. In any city having either a population in excess of 2,000,000 or an area of more than 300 square miles, city police officers shall have full responsibility and primary jurisdiction for the administration and enforcement of those laws and ordinances, unless the city council of the city by resolution requests administration and enforcement of those laws by the commissioner. (e) The commissioner shall have full responsibility and primary jurisdiction for the administration and enforcement of the laws, and for the investigation of traffic accidents, on all highways within a city and county with a population of less than 25,000, if, at the time the city and county government is established, the county contains no municipal corporations. (f) The commissioner may enter into any interagency agreement with the State Board of Equalization for the purpose of enforcement of statutes requiring commercial vehicles from foreign jurisdictions to have a diesel fuel tax permit and to make payments to the board as required. (g) The commissioner shall assume those duties and responsibilities of providing protection to state property and employees actually being performed by the California State Police Division on and before July 11, 1995. (h) The commissioner may provide for the physical security of any current or former constitutional officer of the state and current or former legislator of the state. (i) Upon request of the Chief Justice of the California Supreme Court, the commissioner may provide appropriate protective services to any current or former member of the State Court of Appeal or the California Supreme Court. 2400.6. The commissioner shall enforce all laws regulating the operation of vehicles on, and the use of any portion of, State Highway Route 1 in the City of Malibu, if requested by the city, and if a contract is entered into between the state and the city. The contract shall require that an amount be paid to the commissioner that is equal to the costs incurred by the department for services provided under the contract. 2400.7. (a) The commissioner may enforce all laws regulating the operation of vehicles and on, and the use of, any portion of any expressway in the County of Santa Clara, if requested by a city or the county with respect to the portion of the highway within that city or county and if a contract is entered into between the state and that city or the county or any combination thereof. (b) The contract shall require affected cities or the County of Santa Clara, or both, as the case may be, to pay to the commissioner, for deposit in the Motor Vehicle Account in the State Transportation Fund, an amount that is equal to the costs incurred by the department for services provided under the contract. 2401. The commissioner shall make adequate provision for patrol of the highways at all times of the day and night. 2401.1. The commissioner may enforce those provisions relating to the transportation of hazardous waste found in Article 6 (commencing with Section 25160), Article 6.5 (commencing with Section 25167.1), and Article 8 (commencing with Section 25180), of Chapter 6.5 of Division 20 of the Health and Safety Code, pursuant to subdivision (d) of Section 25180 of the Health and Safety Code and the provisions relating to the transportation of medical waste found in Chapter 6 (commencing with Section 118000) of, and Chapter 10 (commencing with Section 118325) of, Part 14 of Division 104 of the Health and Safety Code. 2402. The commissioner may make and enforce such rules and regulations as may be necessary to carry out the duties of the department. Rules and regulations shall be adopted, amended, or repealed in accordance with the Administrative Procedure Act, commencing with Section 11370 of the Government Code. 2402.6. (a) The commissioner may adopt and enforce regulations and standards with respect to fuel containers and fuel systems on vehicles using compressed or liquefied natural gas and liquefied petroleum gas used in conjunction with a propulsion system certified by the State Air Resources Board as producing as few or fewer emissions as a State Air Resources Board approved system using compressed or liquefied natural gas or liquefied petroleum gas and with respect to the operation of vehicles using any of those fuels to ensure the safety of the equipment and vehicles and of persons and property using the highways. (b) The commissioner may also adopt and enforce regulations and standards with respect to fuel containers and fuel systems on vehicles using compressed or liquefied hydrogen gas or liquid fuels that generate hydrogen gas. (c) All motor vehicles with compressed natural gas fuel systems used for propulsion shall comply either with the regulations adopted pursuant to subdivision (a) or with National Fire Protection Administration Standard NFPA 52, "Compressed Natural Gas (CNG) Vehicular Fuel Systems" in effect at the time of manufacture, until standards for those fuel systems have been incorporated into the Federal Motor Vehicle Safety Standards by the United States Department of Transportation. Whenever those Federal Motor Vehicle Safety Standards include requirements for gaseous fuel systems, all motor vehicles with gaseous fuel systems which are manufactured after the effective date of those requirements shall comply with those requirements. (d) It is an infraction for any person to operate any motor vehicle in violation of any provision of a regulation adopted pursuant to this section. (e) The operator of every facility for filling portable liquefied natural gas or liquefied petroleum gas containers having a capacity of four pounds or more but not more than 200 pounds of gas shall post in a conspicuous place the regulations applicable to that filling procedure. 2402.7. The commissioner shall adopt the definitions designated by the United States Department of Transportation under Title 49 (commencing with Section 1801) of the United States Code and Title 49 (commencing with Section 107) of the Code of Federal Regulations relating to hazardous materials, substances, or wastes, including, but not limited to, definitions relating to any radioactive material, poison, flammable gas, nonflammable gas, flammable liquid, oxidizer, flammable solid, corrosive material (liquid or solid), irritating materials, combustible liquids, explosives, blasting agents, etiologic agents, organic peroxides, hazardous wastes, and other regulated materials of classes A, B, C, D and E. 2403. The commissioner may create highway patrol districts for the efficient administration and enforcement of this code and the laws respecting the use of highways. He may establish branch offices wherever he may deem necessary. 2403.5. The commissioner, or a designated representative, may enter into reciprocal operational agreements with authorized representatives of the Oregon State Police, the Nevada Department of Motor Vehicles and Public Safety, and the Arizona Department of Public Safety to promote expeditious and effective law enforcement service to the public, and assistance between the members of the California Highway Patrol and those agencies, in areas adjacent to the borders of this state and each of the adjoining states pursuant to Section 830.39 of the Penal Code. The reciprocal operational agreement shall be in writing and may cover the reciprocal exchange of law enforcement services, resources, facilities, and any other necessary and proper matters between the Department of the California Highway Patrol and the respective agency. Any agreement shall specify the involved departments, divisions, or units of the agencies, the duration and purpose of the agreement, the responsibility for damages, the method of financing any joint or cooperative undertaking, and the methods to be employed to terminate an agreement. The commissioner may establish operational procedures in implementation of any reciprocal operational agreement that are necessary to achieve the purposes of the agreement. 2404. The commissioner shall establish, in counties having charters, except in counties of the first or second class, headquarters or substations for the efficient performance of the duties of the department, and he may establish, in such other localities as he deems most suitable, such headquarters or substations. 2404.5. The department shall obtain a vehicle suitable for registration and commerical safety inspections at border crossings into Mexico. 2405. The commissioner may purchase or lease such real estate and erect such buildings as the department or any of its divisions require, subject to the approval of the Department of General Services. 2406. The commissioner may provide that any highway patrol vehicle shall be equipped with a stretcher and emergency first aid equipment for use in transporting injured persons. 2407. The department shall prepare and on request supply to police departments, coroners, sheriffs, and other suitable agencies or individuals, forms for accident reports required under this code, which reports shall call for sufficiently detailed information to disclose with reference to a traffic accident the cause, conditions then existing, and the persons and vehicles involved. 2408. The department shall tabulate and may analyze all accident reports and publish annually or at more frequent intervals statistical information based thereon as to the number and location of traffic accidents, as well as other information relating to traffic accident prevention. Based upon its findings after such analysis, the department may conduct further necessary detailed research to more fully determine the cause and control of highway accidents. It may further conduct experimental field tests within areas of the State to prove the practicability of various ideas advanced in traffic control and accident prevention. 2409. All members of the California Highway Patrol have the powers of a peace officer as provided in Section 830.2 of the Penal Code. 2410. Members of the California Highway Patrol are authorized to direct traffic according to law, and, in the event of a fire or other emergency, or to expedite traffic or insure safety, may direct traffic as conditions may require notwithstanding the provisions of this code. 2410.5. (a) The department may contract with a person or governmental entity that is conducting a special event which will impose extraordinary traffic control requirements at and near the site of the special event to provide supplemental patrol services to coordinate and direct traffic at and near the special event site. A contract entered into pursuant to this section shall include provisions for reimbursement to the department, and may include a requirement for the posting of a bond, for the cost of providing the supplemental patrol services, as determined by the commissioner. (b) The patrol services, if any, provided under this section shall be rendered by officers of the department. (c) Contract patrol services authorized under this section shall not reduce the normal and regular services of the department. (d) Any contract fees received by the department pursuant to a contract under this section shall be deposited in the Motor Vehicle Account in the State Transportation Fund. 2411. Members of the California Highway Patrol are authorized to serve all warrants relating to the enforcement of this code. 2412. All members of the California Highway Patrol may investigate accidents resulting in personal injuries or death and gather evidence for the purpose of prosecuting the person or persons guilty of any violation of the law contributing to the happening of such accident. 2413. (a) The Commissioner of the California Highway Patrol is designated as the Statewide Vehicle Theft Investigation and Apprehension Coordinator. The commissioner may establish vehicle theft prevention, investigation, and apprehension programs. The commissioner may assist local, state, and federal law enforcement agencies by coordinating multijurisdictional vehicle theft investigations and may establish programs to improve the ability of law enforcement to combat vehicle theft. (b) The Department of the California Highway Patrol may retain license plate data captured by a license plate reader (LPR) for no more than 60 days, except in circumstances when the data is being used as evidence or for all felonies being investigated, including, but not limited to, auto theft, homicides, kidnaping, burglaries, elder and juvenile abductions, Amber Alerts, and Blue Alerts. (c) The Department of the California Highway Patrol shall not sell LPR data for any purpose and shall not make the data available to an agency that is not a law enforcement agency or an individual who is not a law enforcement officer. The data may be used by a law enforcement agency only for purposes of locating vehicles or persons when either are reasonably suspected of being involved in the commission of a public offense. (d) The Department of the California Highway Patrol shall monitor internal use of the LPR data to prevent unauthorized use. (e) The Department of the California Highway Patrol shall, as a part of the annual automobile theft report submitted to the Legislature pursuant to subdivision (b) of Section 10901, report the LPR practices and usage, including the number of LPR data disclosures, a record of the agencies to which data was disclosed and for what purpose, and any changes in policy that affect privacy concerns. 2414. When lost, stolen, abandoned or otherwise unclaimed property, except vehicles subject to registration under this code, comes into possession of the department, the department may hold or store the same with some responsible person until it is claimed and all just and reasonable charges for saving and storage thereof have been paid. 2415. (a) If the owner or other person entitled to the possession thereof fails to claim the property within six months and pay the charges, the department may sell it to the highest bidder at public auction at the place where the same may be held or stored, having first caused notice of sale to be given at least five days before the time fixed therefor, by publication once in a newspaper of general circulation published in the county where the sale is to be held. (b) Any excess in the proceeds of the sale after paying such charges and expenses of sale including but not limited to the costs of advertising and a fee of not exceeding ten dollars ($10) to be charged by the department for making the sale shall be deposited in the State Treasury in the special deposit fund as money remaining unclaimed in the hands of the department. (c) On payment of the price bid for the property sold, the delivery of the property with the commissioner's bill of sale vests title in the purchaser. (d) In any case where there is no bid offered for the property, or if the highest bid offered does not exceed the charges for saving, holding, and storage and the expenses of sale, the same shall become the property of the department as compensation for expenses incurred. 2416. (a) The Commissioner of the California Highway Patrol may issue authorized emergency vehicle permits only for the following vehicles, and then only upon a finding in each case that the vehicle is used in responding to emergency calls for fire or law enforcement or for the immediate preservation of life or property or for the apprehension of law violators: (1) Any vehicle maintained in whole or in part by the state, a county or a city and privately owned and operated by a marshal, deputy marshal, or person who is a member of, and who receives salary from, and is regularly employed by, a police department or sheriff's department, provided the state, county or city does not furnish to that person a publicly owned authorized emergency vehicle. (2) Any vehicle owned and operated by a public utility, used primarily to accomplish emergency repairs to utility facilities or used primarily by railroad police officers, who are commissioned by the Governor, in the performance of their duties. (3) Firefighting or rescue equipment designed and operated exclusively as such. (4) Any vehicle operated by the chief, assistant chief, or one other uniformed person designated by the chief of a fire department organized as provided in the Health and Safety Code or the Government Code or pursuant to special act of the Legislature. (5) Any vehicle of an air pollution control district used to enforce provisions of law relating to air pollution from motor vehicles. (6) Any vehicle operated by the chief of any fire department established on any base of the armed forces of the United States. (7) Any vehicle owned and operated by any fire company organized pursuant to Part 4 (commencing with Section 14825) of the Health and Safety Code. (8) Privately owned ambulances licensed pursuant to Chapter 2.5 (commencing with Section 2500). (9) Vehicles other than privately owned ambulances used by privately owned ambulance operators exclusively to transport medical supplies, lifesaving equipment, or personnel to the scene of an emergency when a request for medical supplies, lifesaving equipment, or personnel has been made by any person or public agency responsible for providing emergency medical transportation. These vehicles shall display a sign or lettering not less than two and one-half inches in height, in a color providing a sharp contrast to its background, on each side showing the name of the ambulance operator. (10) Any vehicle owned and operated by an office or department of a city, county, or district which is designated by an ordinance adopted by the governing body of that local agency as a hazardous materials response team vehicle for response to hazardous materials emergencies. (b) The commissioner may adopt and enforce regulations to implement this section. (c) Violation of any regulation adopted by the commissioner pursuant to this section is a misdemeanor. 2417. (a) The commissioner may suspend or revoke any permit issued for an authorized emergency vehicle under the following conditions: (1) The vehicle is operated in violation of any of the provisions of this code. (2) The vehicle is operated in violation of the rules and regulations relating to authorized emergency vehicles as promulgated by the commissioner. (3) The vehicle is not equipped as required by this code. (b) The permittee of any authorized emergency vehicle whose permit has been suspended or revoked shall be entitled, upon request, to a hearing in accordance with Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code. (c) When any authorized emergency vehicle permit has been suspended or revoked under provisions of this section, any additional authorized emergency vehicle permit issued in the name of the permittee may be likewise suspended or revoked. 2418. The department shall adopt reasonable rules and regulations to ensure that all foreign commercial vehicles entering into, and operating within, this state meet those standards already in effect for other commercial vehicles and shall address, but not be limited to, the following concerns: (a) Vehicle maintenance. (b) Maximum hours of service for drivers. (c) Insurance. (d) Enforcement of criminal, civil, and administrative actions, including, but not limited to, impoundment of vehicles for second or subsequent violations of rules and regulations adopted under this section. 2418.1. For purposes of enforcing the provisions of Section 2418, the department and the State Air Resources Board shall, to the maximum extent possible, conduct vehicle safety and emissions inspections at the California-Mexican border crossings. Inspections shall be conducted at the Otay Mesa and Calexico commercial vehicle inspection facilities operated by the department and at other random roadside locations as determined by the department, in consultation with the board. Inspections for safety and emissions shall be consistent with the inspection procedures specified in Title 13 (commencing with Section 2175) of the California Code of Regulations as they pertain to vehicle inspections. 2418.5. (a) Notwithstanding any other provision of law, every emergency ambulance that is operated within this state by any public or private agency, including, but not limited to, any emergency ambulance that is operated by the State of California, any charter or general law city or county, or any district, shall be equipped at all times with a resuscitator. (b) For purposes of this section "emergency ambulance" means a vehicle that is designed or intended to be used in providing emergency transportation of wounded, injured, sick, disabled, or incapacitated human beings. (c) For the purposes of this section, a "resuscitator" means a device that adequately, effectively and safely restores breathing, including, but not limited to, a portable hand-operated, self-refilling bag-valve mask unit for inflation of the lungs with either air or oxygen. The resuscitator shall not have any straps that could be used to attach the resuscitator to the human head. 2419. (a) Any member of the California Highway Patrol may give flares to any person as replacement for flares used by such person to warn traffic of an accident or other hazardous condition on a highway, provided such person was not required by law to give such warning, or was not involved in the accident or the creation of the hazardous condition. The officer shall not replace such flares unless he is reasonably satisfied that such person in fact placed the flares for which replacement is requested. (b) Notwithstanding any other provision of law, the person requesting replacement of flares shall not be required to file any claim for such flares. 2420. Upon request of the California Highway Patrol, manufacturers of motorcycles shall furnish a certification of gross brake horsepower to the department. If any manufacturer of motorcycles fails to comply with such request within 30 days from the date such request has been deposited in the mail, then and in that event no dealer shall sell or offer for sale the particular make and model of motocycle for which the certification was requested. 2420.5. (a) The department may enter into a contract to conduct an inspection of vehicles that are subject to Section 500.100 of Title 29 of the Code of Federal Regulations and issue the vehicle inspection sticker authorized under subdivision (b) of that section to qualified vehicles. (b) Any contract entered into under subdivision (a) shall provide that the amount to be paid to the department shall be equal to the costs incurred by the department for services provided under the contract. 2421. Notwithstanding Section 11032 of the Government Code, the commissioner may approve the out-of-state travel within the United States of members of the California Highway Patrol, in numbers the commissioner deems appropriate, to attend out-of-state funerals of law enforcement officers or to attend out-of-state events related to the funerals of law enforcement officers, including the National Peace Officers Memorial. Reimbursement for actual and necessary traveling expenses shall be allowed for members of the California Highway Patrol approved to travel out of state pursuant to this section up to a maximum aggregate amount of forty thousand dollars ($40,000) in any fiscal year. 2421.5. (a) When any Service Authority for Freeway Emergencies has imposed additional fees on vehicles pursuant to Section 2555 of the Streets and Highways Code, the authority may contract with the department or a private or public entity to handle calls originating from the authority's motorist aid call box system. (b) (1) If the contract is with the department, its terms shall comply with the requirements specified in paragraph (2) for the system on the portions of the California Freeway and Expressway System and on county roads in rural, unincorporated areas of the county and on state highway routes that connect segments of these systems, if they are located within the county in which the authority is established and the Department of the California Highway Patrol has law enforcement responsibility over them. (2) The contract shall contain guidelines, as jointly agreed to between the authority and the department, following consultation with the authority, for services to be provided, including, but not limited to, reporting requirements, immediate transfer of emergency calls and traffic management information to the department, computer interface capability with the department, performance standards, and coordination with the eligible tow service providers. (c) If the contract is with a private or public entity, the authority shall ensure that the specifications in the "CHP/Cal Trans Call Box and Motorist Aid Guidelines" are met and coordinate with the department to determine which calls will be transferred to it for response. The authority shall reimburse the department for all costs incurred under this subdivision in accordance with the "CHP/Cal Trans Call Box and Motorist Aid Guidelines." If an authority has a contract with a private or public entity having a commencement date of July 1, 2003, or prior, the performance standards of those contracts shall remain in effect until modifications are made to the applicable sections of the statewide guidelines. (d) The authority may contract with the Department of the California Highway Patrol to perform duties as mutually agreed by the parties. 2422. The department shall determine and implement the basic level of emergency medical dispatcher training for dispatchers employed by the department based on guidelines developed by the California Emergency Medical Services Authority with the concurrence of the department. Implementation shall commence not later than January 1, 1987. Notwithstanding the foregoing, the commissioner may adopt a higher level of training for department dispatchers where appropriate. The department shall report to the Legislature on progress in the implementation of an emergency medical dispatch training program not later than January 1, 1988. 2423. In approving the additional instruction and training required under subdivision (b) of Section 680, the department shall consider the requirements of Chapter 3 (commencing with Section 40080) of Part 23.5 of the Education Code, as those provisions relate to instruction and training requirements for schoolbus drivers and school pupil activity bus drivers. 2424. (a) The Commissioner of the California Highway Patrol may enter into agreements with providers of towing, emergency road, and storage services for the purpose of determining which providers shall be summoned by the department when those services are necessary for public assistance or to carry out the duties and responsibilities of the department. Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code shall not apply to the agreements. The department shall confer with the towing industry, as necessary, to reach agreements mutually beneficial to the public, the towing industry, and the department. (b) This section does not prohibit a member of the public from selecting any vehicle towing, emergency road service, or storage provider, except when towing or storage is ordered by a member of the department under the provisions of law. (c) These agreements shall be implemented in cooperation with representatives of the towing industry, and shall include, but not be limited to, the following subjects: liability insurance requirements, towing, emergency road service, and storage fees, inspection of business and storage facilities and equipment, recordkeeping, minimum equipment requirements, and the establishment of tow districts. (d) Failure of a towing, emergency road service, or storage provider to comply with the provisions of the agreement may result in the suspension or termination of the agreement. In the event of suspension or termination of the agreement, and at the request of the towing, emergency road service, or storage provider, the department shall provide a hearing and appeal process to the provider. (e) Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code does not apply to the hearing and appeal process specified in subdivision (d). 2426. The department shall prepare a one-page information sheet describing its Designated Driver Program. The sheet shall include information concerning the person or entity an alcoholic beverage licensee may contact for assistance in establishing a Designated Driver Program. 2427. Whenever the department submits the fingerprints of an applicant for a license or certificate to the Department of Justice, and is required to pay a fee pursuant to subdivision (e) of Section 11105 of the Penal Code, the department, without the necessity of adopting regulations, shall charge the applicant a fee sufficient to reimburse the department for that fee. 2428. (a) The Department of the California Highway Patrol may fix the cost or pro rata share, or, in its discretion, an amount it considers equivalent to the cost or pro rata share, and collect from each state agency in advance or upon any other basis that it may determine the cost of providing protective services for state employees and property. (b) Payments for services provided shall be made by direct transfer as described in Section 11255 of the Government Code. All money received by the department pursuant to this section shall be deposited in the Protective Services Fund, which is hereby created. When appropriated by the Legislature, funds in the Protective Services Fund shall be used by the department to fulfill those responsibilities set forth in subdivisions (g), (h), and (i) of Section 2400. (c) If a state agency refuses to pay the charges fixed by the Department of the California Highway Patrol for security services rendered, the department may file a claim for those charges against any appropriations made for the support or maintenance of all or any part of the work and affairs of the state agency. The Controller shall draw his or her warrant in accordance with law upon the claim in favor of the Department of the California Highway Patrol. 2429. The department shall develop an "800" telephone number system to facilitate public reporting of violations of Article 2 (commencing with Section 31400) of Chapter 5 of Division 13. The department shall include in the department's "El Protector Program" public outreach activities that publicize the "800" telephone number system. 2429.3. (a) The commissioner shall appoint a committee of 12 members to develop a public awareness and outreach campaign to educate manufacturers, sellers, and owners of house cars, as described in subdivision (b) of Section 12804.10, regarding locations where those vehicles may be legally operated within the state. The committee shall consist of the commissioner, two members representing owners or operators of house cars, and one representative from each of the following: (1) The Department of Transportation. (2) The Department of Motor Vehicles. (3) The Recreational Vehicle Industry Association. (4) The California Recreational Vehicle Dealers Association. (5) The National Recreational Vehicle Dealers Association. (6) The Family Motor Coach Association. (7) The Good Sam Club. (8) The recreational vehicle manufacturing industry. (9) The California Travel Parks Association. (b) The committee shall develop a driver education safety video for operators of house cars. The video, as well as a map of the approved highways on which those vehicles may operate, shall be made available to dealers of house cars. The committee shall encourage dealers to make copies of the video and map available to purchasers of those vehicles. The video shall be produced at no cost to the state. (c) Committee members shall serve at the pleasure of the commissioner and without compensation. 2429.5. The department, in cooperation with county and local farm bureaus, shall provide a program to educate growers and farmers and farm labor vehicle owners and drivers regarding farm labor vehicle certification requirements, including, but not limited to, certification requirements for farm labor vehicle drivers.





VEHICLE CODE
SECTION 2800-2818
2800. (a) It is unlawful to willfully fail or refuse to comply with a lawful order, signal, or direction of a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code, when that peace officer is in uniform and is performing duties pursuant to any of the provisions of this code, or to refuse to submit to a lawful inspection pursuant to this code. (b) (1) Except as authorized pursuant to Section 24004, it is unlawful to fail or refuse to comply with a lawful out-of-service order issued by an authorized employee of the Department of the California Highway Patrol or by an authorized enforcement officer as described in subdivision (d). (2) It is unlawful for a driver transporting hazardous materials in a commercial motor vehicle that is required to display a placard pursuant to Section 27903 to violate paragraph (1). (3) It is unlawful for a driver of a vehicle designed to transport 16 or more passengers, including the driver, to violate paragraph (1). (c) It is unlawful to fail or refuse to comply with a lawful out-of-service order issued by the United States Secretary of the Department of Transportation. (d) "Out-of-Service order" means a declaration by an authorized enforcement officer of a federal, state, Canadian, Mexican, or local jurisdiction that a driver, a commercial motor vehicle, or a motor carrier operation is out-of-service pursuant to Section 386.72, 392.5, 392.9a, 395.13, or 396.9 of Title 49 of the Code of Federal Regulations, state law, or the North American Standard Out-of-Service Criteria. 2800.1. (a) Any person who, while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer's motor vehicle, is guilty of a misdemeanor punishable by imprisonment in a county jail for not more than one year if all of the following conditions exist: (1) The peace officer's motor vehicle is exhibiting at least one lighted red lamp visible from the front and the person either sees or reasonably should have seen the lamp. (2) The peace officer's motor vehicle is sounding a siren as may be reasonably necessary. (3) The peace officer's motor vehicle is distinctively marked. (4) The peace officer's motor vehicle is operated by a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code, and that peace officer is wearing a distinctive uniform. (b) Any person who, while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer's bicycle, is guilty of a misdemeanor punishable by imprisonment in a county jail for not more than one year if the following conditions exist: (1) The peace officer's bicycle is distinctively marked. (2) The peace officer's bicycle is operated by a peace officer, as defined in paragraph (4) of subdivision (a), and that peace officer is wearing a distinctive uniform. (3) The peace officer gives a verbal command to stop. (4) The peace officer sounds a horn that produces a sound of at least 115 decibels. (5) The peace officer gives a hand signal commanding the person to stop. (6) The person is aware or reasonably should have been aware of the verbal command, horn, and hand signal, but refuses to comply with the command to stop. 2800.2. (a) If a person flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property, the person driving the vehicle, upon conviction, shall be punished by imprisonment in the state prison, or by confinement in the county jail for not less than six months nor more than one year. The court may also impose a fine of not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000), or may impose both that imprisonment or confinement and fine. (b) For purposes of this section, a willful or wanton disregard for the safety of persons or property includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point count under Section 12810 occur, or damage to property occurs. 2800.3. (a) Whenever willful flight or attempt to elude a pursuing peace officer in violation of Section 2800.1 proximately causes serious bodily injury to any person, the person driving the pursued vehicle, upon conviction, shall be punished by imprisonment in the state prison for three, five, or seven years, by imprisonment in a county jail for not more than one year, or by a fine of not less than two thousand dollars ($2,000) nor more than ten thousand dollars ($10,000), or by both that fine and imprisonment. (b) Whenever willful flight or attempt to elude a pursuing peace officer in violation of Section 2800.1 proximately causes death to a person, the person driving the pursued vehicle, upon conviction, shall be punished by imprisonment in the state prison for a term of 4, 6, or 10 years. (c) Nothing in this section shall preclude the imposition of a greater sentence pursuant to Section 190 of the Penal Code or any other provisions of law applicable to punishment for an unlawful death. (d) For the purposes of this section, "serious bodily injury" has the same meaning as defined in paragraph (4) of subdivision (f) of Section 243 of the Penal Code. 2800.4. Whenever a person willfully flees or attempts to elude a pursuing peace officer in violation of Section 2800.1, and the person operating the pursued vehicle willfully drives that vehicle on a highway in a direction opposite to that in which the traffic lawfully moves upon that highway, the person upon conviction is punishable by imprisonment for not less than six months nor more than one year in a county jail or by imprisonment in the state prison, or by a fine of not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000), or by both that fine and imprisonment. 2801. It is unlawful to wilfully fail or refuse to comply with any lawful order, signal, or direction of any member of any fire department, paid, volunteer, or company operated, when wearing the badge or insignia of a fireman and when in the course of his duties he is protecting the personnel and fire department equipment. 2802. (a) Any traffic officer having reason to believe that a vehicle is not safely loaded or that the height, width, length, or weight of a vehicle and load is unlawful may require the driver to stop and submit to an inspection, measurement, or weighing of the vehicle. The weighing may be done either by means of portable or stationary scales and the officer may require that the vehicle be driven to the nearest scale facility, in the event the scales are within five road miles. (b) Selected inspection facilities and platform scales operated by the Department of the California Highway Patrol may, at the discretion of the commissioner, be open for extended hours, up to and including 24 hours every day. The primary purpose of the extended hours is to assist in the detection of overweight vehicles. These inspection facilities and platform scales shall be located near primary border route points of entry into the state and key routes within the state. (c) An amount not to exceed one million dollars ($1,000,000) shall be available annually from the Motor Vehicle Account in the State Transportation Fund, upon appropriation by the Legislature, for the expanded operation of the scale facilities, as specified in subdivision (b). It is the intent of the Legislature that the funds made available pursuant to this subdivision shall be the only funds available for purposes of this section. 2803. (a) If the traffic officer determines that the vehicle is not safely loaded or that the height, width, length, or weight is unlawful, he may require the driver to stop in a suitable place and reload or remove such portion of the load as may be necessary to render the load safe or to reduce it to the limits permitted under this code. A suitable place is an area which allows the least obstruction to the highway and which requires the least travel on the highway by the vehicle. Determination of the suitability of an area shall be made by the traffic officer who requires the adjustment. All material so unloaded shall be cared for by the owner or operator of the vehicle at the risk of the owner or operator. (b) If a certified weight certificate or bill of lading accompanies a vehicle which has been determined to be overweight due to the load on the vehicle, the driver shall submit the certified weight certificate or bill of lading, whichever is appropriate, to the traffic officer when the overweight load is removed in the presence of the officer. The officer may note on the certified weight certificate or bill of lading submitted by the driver the fact that a portion of the load has been removed to bring the vehicle and load within the allowable weight limit specified in this code, and the officer shall return the certificate or bill of lading to the driver. (c) If the height, width, or length of the vehicle is unlawful, irrespective of any load thereon, or if an unladen vehicle is overweight, the traffic officer may prohibit further movement of the vehicle until a permit is obtained as provided in Section 35780. 2804. A member of the California Highway Patrol upon reasonable belief that any vehicle is being operated in violation of any provisions of this code or is in such unsafe condition as to endanger any person, may require the driver of the vehicle to stop and submit to an inspection of the vehicle, and its equipment, license plates, and registration card. 2805. (a) For the purpose of locating stolen vehicles, (1) any member of the California Highway Patrol, or (2) a member of a city police department, a member of a county sheriff's office, or a district attorney investigator, whose primary responsibility is to conduct vehicle theft investigations, may inspect any vehicle of a type required to be registered under this code, or any identifiable vehicle component thereof, on a highway or in any public garage, repair shop, terminal, parking lot, new or used car lot, automobile dismantler's lot, vehicle shredding facility, vehicle leasing or rental lot, vehicle equipment rental yard, vehicle salvage pool, or other similar establishment, or any agricultural or construction work location where work is being actively performed, and may inspect the title or registration of vehicles, in order to establish the rightful ownership or possession of the vehicle or identifiable vehicle component. As used in this subdivision, "identifiable vehicle component" means any component which can be distinguished from other similar components by a serial number or other unique distinguishing number, sign, or symbol. (b) A member of the California Highway Patrol, a member of a city police department or county sheriff's office, or a district attorney investigator whose primary responsibility is to conduct vehicle theft investigations, may also inspect, for the purposes specified in subdivision (a), implements of husbandry, special construction equipment, forklifts, and special mobile equipment in the places described in subdivision (a) or when that vehicle is incidentally operated or transported upon a highway. (c) Whenever possible, inspections conducted pursuant to subdivision (a) or (b) shall be conducted at a time and in a manner so as to minimize any interference with, or delay of, business operations. 2806. Any regularly employed and salaried police officer or deputy sheriff, or any reserve police officer or reserve deputy sheriff listed in Section 830.6 of the Penal Code, having reasonable cause to believe that any vehicle or combination of vehicles is not equipped as required by this code or is in any unsafe condition as to endanger any person, may require the driver to stop and submit the vehicle or combination of vehicles to an inspection and those tests as may be appropriate to determine the safety to persons and compliance with the code. 2807. (a) The California Highway Patrol shall inspect every schoolbus at least once each school year to ascertain whether its construction, design, equipment, and color comply with all provisions of law. (b) No person shall drive any schoolbus unless there is displayed therein a certificate issued by the California Highway Patrol stating that on a certain date, which shall be within 13 months of the date of operation, an authorized employee of the California Highway Patrol inspected the bus and found that on the date of inspection the bus complied with the applicable provisions of state law relating to construction, design, equipment, and color. The Commissioner of the California Highway Patrol shall provide by rule or regulation for the issuance and display of distinctive inspection certificates. 2807.1. (a) The Department of the California Highway Patrol shall inspect and certify every school pupil activity bus specified in Section 546 at least once each year to ascertain whether its condition complies with all provisions of the law. (b) No person shall drive any motor vehicle specified in subdivision (a) unless there is displayed therein a certificate issued by the Department of the California Highway Patrol stating that on a certain date, which shall be within 13 months of the date of operation, an authorized employee of the Department of the California Highway Patrol inspected such motor vehicle and found that on the date of inspection such motor vehicle complied with the applicable provisions of the state law. The Commissioner of the California Highway Patrol shall provide by rule or regulation for the issuance and display of distinctive inspection certificates. 2807.2. The Department of the California Highway Patrol shall, by regulation, provide for a preventive maintenance inspection guide for use by operators of tour buses, motor vehicles specified in Sections 2807 and 2807.1, and vehicles described in subdivisions (a), (b), (d), (e), (f), and (g) of Section 34500. The regulations shall provide that the record of inspection shall be signed by the person making the inspection, and the record of the inspections shall be retained on file by the operator for review and inspection by the Department of the California Highway Patrol. 2807.3. (a) The Department of the California Highway Patrol shall inspect and certify every youth bus at least once each school year to ascertain whether its condition complies with all provisions of law. (b) No person shall drive any youth bus unless there is displayed therein a certificate issued by the Department of the California Highway Patrol stating that on a certain date, which shall be within 13 months of the date of operation, an authorized employee of the Department of the California Highway Patrol inspected the youth bus and found that on the date of inspection the youth bus complied with the applicable provisions of state law. The Commissioner of the California Highway Patrol shall provide, by rule or regulation, for the issuance and display of distinctive inspection certificates. (c) The Commissioner of the California Highway Patrol may determine the fee and method of collection for the annual inspection of youth buses. The fee, established by regulation, shall be sufficient to cover the cost to the department for youth bus inspections and testing of drivers pursuant to Section 12523. All fees received shall be deposited in the Motor Vehicle Account in the State Transportation Fund. 2808. (a) Except as provided in subdivision (b), all schoolbuses transporting pupils to or from any private school or private school activity shall be subject to the same statutes, rules, and regulations relating to construction, design, operation, equipment, and color as are now or hereafter applicable to schoolbuses transporting pupils to or from any public school or public school activity. (b) Schoolbuses shall be exempt from such statutes, rules, and regulations relating to construction, design, safe operation, and equipment as the Commissioner of the California Highway Patrol shall determine necessary to permit such schoolbuses to continue in operation or when it appears that the results intended to be attained by such rules and regulations are being accomplished by the use of other methods. Such exemption shall be specified by rule or regulation of the commissioner. No such exemption shall be made which in the opinion of the commissioner would jeopardize the safety of the pupils so transported. 2809. All scales and weighing instruments used by any member of the California Highway Patrol to enforce the provisions of this code with respect to weight limitations shall be inspected and certified as to accuracy at least once in each calendar year by the Bureau of Weights and Measures of the Department of Food and Agriculture or by a county sealer of weights and measures. 2810. (a) A member of the California Highway Patrol may stop any vehicle transporting any timber products, livestock, poultry, farm produce, crude oil, petroleum products, or inedible kitchen grease, and inspect the bills of lading, shipping or delivery papers, or other evidence to determine whether the driver is in legal possession of the load, and, upon reasonable belief that the driver of the vehicle is not in legal possession, shall take custody of the vehicle and load and turn them over to the custody of the sheriff of the county in which the timber products, livestock, poultry, farm produce, crude oil, petroleum products, or inedible kitchen grease, or any part thereof, is apprehended. (b) The sheriff shall receive and provide for the care and safekeeping of the apprehended timber products, livestock, poultry, farm produce, crude oil, petroleum products, or inedible kitchen grease, or any part thereof, and immediately, in cooperation with the department, proceed with an investigation and its legal disposition. (c) Any expense incurred by the sheriff in the performance of his or her duties under this section shall be a legal charge against the county. 2810.1. (a) Any traffic officer may stop any commercial vehicle, as defined in Section 260, that is a rental vehicle and inspect the bills of lading, shipping, delivery papers, or other evidence to determine whether the driver is transporting household goods in violation of the Household Goods Carriers Act (Chapter 7 (commencing with Sec. 5101) of Division 2 of the Public Utilities Code). The officer may only stop and inspect where the officer has probable cause to believe that the vehicle is being operated in violation of that act. (b) It is a public offense, for which an officer may issue a citation, for a driver to unlawfully transport household goods in violation of the Household Goods Carriers Act. That public offense is punishable as prescribed in Article 8 (commencing with Section 5311) of Chapter 7 of Division 2 of the Public Utilities Code. It is an infraction to refuse to submit to an inspection as authorized by subdivision (a). (c) A copy of the citation for any offense described in subdivision (b) shall be sent by the the department that employs the traffic officer to the Director of the Consumer Services Division of the California Public Utilities Commission. A copy of a citation shall be removed from any record of the commission upon a showing that the person was not convicted of the offense or that bail was not forfeited for that offense. A person for whom a copy of a citation has been sent to the commission and is on file with the commission may request the commission for an administrative hearing on that matter. 2810.2. (a) (1) A peace officer, as described in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code, may stop a vehicle transporting agricultural irrigation supplies that are in plain view to inspect the bills of lading, shipping, or delivery papers, or other evidence to determine whether the driver is in legal possession of the load, if the vehicle is on a rock road or unpaved road that is located in a county that has elected to implement this section and the road is located as follows: (A) Located under the management of the Department of Parks and Recreation, the Department of Fish and Wildlife, the Department of Forestry and Fire Protection, the State Lands Commission, a regional park district, the United States Forest Service, or the federal Bureau of Land Management. (B) Located within the respective ownership of a timberland production zone, as defined in Chapter 6.7 (commencing with Section 51100) of Part 1 of Division 1 of Title 5 of the Government Code, either that is larger than 50,000 acres or for which the owner of more than 2,500 acres has given express written permission for a vehicle to be stopped within that zone pursuant to this section. (2) Upon reasonable belief that the driver of the vehicle is not in legal possession, the law enforcement officer specified in paragraph (1) shall take custody of the vehicle and load and turn them over to the custody of the sheriff of the county that has elected to implement this section where the agricultural irrigation supplies are apprehended. (b) The sheriff shall receive and provide for the care and safekeeping of the apprehended agricultural irrigation supplies that were in plain view within the boundaries of public lands under the management of the entities listed in subparagraph (A) of paragraph (1) of subdivision (a) or on a timberland production zone as specified in subparagraph (B) of paragraph (1) of subdivision (a), and immediately, in cooperation with the department, proceed with an investigation and its legal disposition. (c) An expense incurred by the sheriff in the performance of his or her duties under this section shall be a legal charge against the county. (d) Except as provided in subdivision (e), a peace officer shall not cause the impoundment of a vehicle at a traffic stop made pursuant to subdivision (a) if the driver's only offense is a violation of Section 12500. (e) During the conduct of pulling a driver over in accordance with subdivision (a), if the peace officer encounters a driver who is in violation of Section 12500, the peace officer shall make a reasonable attempt to identify the registered owner of the vehicle. If the registered owner is present, or the peace officer is able to identify the registered owner and obtain the registered owner's authorization to release the motor vehicle to a licensed driver during the vehicle stop, the vehicle shall be released to either the registered owner of the vehicle if he or she is a licensed driver or to the licensed driver authorized by the registered owner of the vehicle. If a notice to appear is issued, the name and the driver's license number of the licensed driver to whom the vehicle was released pursuant to this subdivision shall be listed on the officer's copy of the notice to appear issued to the unlicensed driver. If a vehicle cannot be released, the vehicle shall be removed pursuant to subdivision (p) of Section 22651, whether a notice to appear has been issued or not. (f) For purposes of this section, "agricultural irrigation supplies" include agricultural irrigation water bladder and one-half inch diameter or greater irrigation line. (g) This section shall be implemented only in a county where the board of supervisors adopts a resolution authorizing the enforcement of this section. 2811. Any traffic officer who observes a fence along any highway, which has been damaged as a result of a traffic accident, shall promptly report same to the owner, lessee, occupant, or person in charge of the property enclosed by the fence, or to the local headquarters of the department. 2812. Whenever poisonous gas, explosives, dust, smoke, or other similar substances, or fire exist upon or so near a public highway as to create a menace to public health or safety, members of the California Highway Patrol, police departments, or sheriff's office may close any highway to traffic when necessary to protect the public from such dangers. Whenever a highway is closed, the governmental agency having control over the highway shall be immediately notified of the reason of the closing and the location. 2812.5. Whenever visibility limitations pose a significant safety hazard, as determined by a member of the California Highway Patrol, that member may restrict or prohibit the use of any highway by any vehicle subject to regulation by the Department of the California Highway Patrol pursuant to Section 34500. 2813. Every driver of a commercial vehicle shall stop and submit the vehicle to an inspection of the size, weight, equipment, and smoke emissions of the vehicle at any location where members of the California Highway Patrol are conducting tests and inspections of commercial vehicles and when signs are displayed requiring the stop. Every driver who fails or refuses to stop and submit the vehicle to an inspection when signs are displayed requiring that stop is guilty of a misdemeanor. 2813.5. (a) The commissioner shall have exclusive authority in the issuance of stickers as evidence that commercial vehicles have been inspected pursuant to Section 2813 and have been found to be in compliance with minimum safety standards established by the department. The commissioner may make and enforce regulations with respect to the issuance and display of the stickers upon commercial vehicles. (b) It is unlawful for any unauthorized person, company, corporation, or public or private entity to possess, issue, or display upon a vehicle an unauthorized commercial vehicle safety inspection sticker or a sticker that is either a facsimile of, or is substantially similar to, that issued by the commissioner. (c) Any violation of subdivision (b) is a misdemeanor. 2814. Every driver of a passenger vehicle shall stop and submit the vehicle to an inspection of the mechanical condition and equipment of the vehicle at any location where members of the California Highway Patrol are conducting tests and inspections of passenger vehicles and when signs are displayed requiring such stop. The Commissioner of the California Highway Patrol may make and enforce regulations with respect to the issuance of stickers or other devices to be displayed upon passenger vehicles as evidence that the vehicles have been inspected and have been found to be in safe mechanical condition and equipped as required by this code and equipped with certified motor vehicle pollution control devices as required by Part 5 (commencing with Section 43000) of Division 26 of the Health and Safety Code which are correctly installed and in operating condition. Any sticker so issued shall be placed on the windshield within a seven-inch square as provided in Section 26708. If, upon such inspection of a passenger vehicle, it is found to be in unsafe mechanical condition or not equipped as required by this code and the provisions of Part 5 (commencing with Section 43000) of Division 26 of the Health and Safety Code, the provisions of Article 2 (commencing with Section 40150) of Chapter 1 of Division 17 of this code shall apply. The provisions of this section relating to motor vehicle pollution control devices apply to vehicles of the United States or its agencies, to the extent authorized by federal law. 2814.1. (a) A board of supervisors of a county may, by ordinance, establish, on highways under its jurisdiction, a vehicle inspection checkpoint program to check for violations of Sections 27153 and 27153.5. The program shall be conducted by the local agency or department with the primary responsibility for traffic law enforcement. (b) A driver of a motor vehicle shall stop and submit to an inspection conducted under subdivision (a) when signs and displays are posted requiring that stop. (c) A county that elects to conduct the program described under subdivision (a) may fund that program through fine proceeds deposited with the county under Section 1463.15 of the Penal Code. (d) State and local law enforcement agencies shall not conduct motorcycle only checkpoints. 2814.2. (a) A driver of a motor vehicle shall stop and submit to a sobriety checkpoint inspection conducted by a law enforcement agency when signs and displays are posted requiring that stop. (b) Notwithstanding Section 14602.6 or 14607.6, a peace officer or any other authorized person shall not cause the impoundment of a vehicle at a sobriety checkpoint if the driver's only offense is a violation of Section 12500. (c) During the conduct of a sobriety checkpoint, if the law enforcement officer encounters a driver who is in violation of Section 12500, the law enforcement officer shall make a reasonable attempt to identify the registered owner of the vehicle. If the registered owner is present, or the officer is able to identify the registered owner and obtain the registered owner's authorization to release the motor vehicle to a licensed driver by the end of the checkpoint, the vehicle shall be released to either the registered owner of the vehicle if he or she is a licensed driver or to the licensed driver authorized by the registered owner of the vehicle. If a notice to appear is issued, the name and driver's license number of the licensed driver to whom the vehicle was released pursuant to this subdivision shall be listed on the officer's copy of the notice to appear issued to the unlicensed driver. When a vehicle cannot be released, the vehicle shall be removed pursuant to subdivision (p) of Section 22651, whether a notice to appear has been issued or not. 2815. Any person who shall disregard any traffic signal or direction given by a nonstudent school crossing guard, appointed pursuant to Section 21100, or authorized by any city police department, any board of supervisors of a county, or the Department of the California Highway Patrol, when the guard is wearing the official insignia of such a school crossing guard, and when in the course of the guard's duties the guard is protecting any person in crossing a street or highway in the vicinity of a school or while returning thereafter to a place of safety, shall be guilty of an infraction and subject to the penalties provided in Section 42001.1. 2816. It is unlawful to load or discharge children onto or from a youth bus upon a highway at any location where the children must cross the highway upon which the youth bus is stopped, unless traffic is controlled by a traffic officer or an official traffic control signal. 2817. Any person who disregards any traffic signal or direction given by a peace officer authorized pursuant to subdivision (d) of Section 70 of the Penal Code to escort funeral processions, if the peace officer is in a peace officer's uniform, and is in the process of escorting a funeral procession, shall be guilty of an infraction and subject to the penalties provided in subdivision (a) of Section 42001. 2818. It is unlawful to traverse an electronic beacon pattern, a flare pattern, cone pattern, or combination of electronic beacon, flare, or cone patterns, provided for the regulation of traffic, or provided in a situation where public safety personnel are engaged in traffic control or emergency scene management.


VEHICLE CODE
SECTION 3052-3058
3052. (a) On or before the 10th day after the last day on which reconsideration of a final decision of the department can be ordered, the applicant or licensee may file an appeal with the executive director of the board. The appeal shall be in writing and shall state the grounds therefor. A copy of the appeal shall be mailed by the appellant to the department, and the department shall thereafter be considered as a party to the appeal. The right to appeal is not affected by failure to seek reconsideration before the department. (b) An appeal is considered to be filed on the date it is received in the office of the executive director of the board, except that an appeal mailed to the executive director by means of registered mail is considered to be filed with the executive director on the postmark date. (c) The appeal shall be accompanied by evidence that the appellant has requested the administrative record of the department and advanced the cost of preparation of that record. The complete administrative record includes the pleadings, all notices and orders issued by the department, any proposed decision by an administrative law judge, the exhibits admitted or rejected, the written evidence, and any other papers in the case. All parts of the administrative record requested by the appellant may be filed with the appeal together with the appellant's points and authorities. If the board orders the filing of additional parts of the administrative record, the board may order prior payment by the appellant of the cost of providing those additional parts. (d) Except as provided in subdivisions (e) and (f), a decision of the department may not become effective during the period in which an appeal may be filed, and the filing of an appeal shall stay the decision of the department until a final order is made by the board. (e) When a decision has ordered revocation of a dealer's license, the department may, on or before the last day upon which an appeal may be filed with the board, petition the board to order the decision of the department into effect. (f) With respect to the department's petition filed pursuant to subdivision (e), the department shall have the burden of proof. The board shall act upon the petition within 14 days or prior to the effective date of the department's decision, whichever is later. The board may order oral argument on the petition before the board. 3053. The board shall determine the appeal upon the administrative record of the department, any evidence adduced at any hearing of the board, and upon any briefs filed by the parties. If any party to the appeal requests the right to appear before the board, the board shall set a time and place for such hearing, the production of any relevant evidence and argument. 3054. The board shall have the power to reverse or amend the decision of the department if it determines that any of the following exist: (a) The department has proceeded without or in excess of its jurisdiction. (b) The department has proceeded in a manner contrary to the law. (c) The decision is not supported by the findings. (d) The findings are not supported by the weight of the evidence in the light of the whole record reviewed in its entirety, including any and all relevant evidence adduced at any hearing of the board. (e) There is relevant evidence, which in the exercise of reasonable diligence, could not have been produced or which was improperly excluded at the hearing. (f) The determination or penalty, as provided in the decision of the department is not commensurate with the findings. 3055. The board shall also have the power to amend, modify, or reverse the penalty imposed by the department. 3056. When the order reverses the decision of the department, the board may direct the department to reconsider the matter in the light of its order and may direct the department to take any further action as is specially enjoined upon it by law. In all cases the board shall enter its order within 60 days after the filing of the appeal, except in the case of unavoidable delay in supplying the administrative record, in which event the board shall make its final order within 60 days after receipt of the record. 3057. The board shall fix an effective date for its orders not more than 30 days from the day the order is served upon the parties or remand the case to the department for fixing an effective date. A final order of the board shall be in writing and copies of the order shall be delivered to the parties personally or sent to them by registered mail. The order shall be final upon its delivery or mailing and no reconsideration or rehearing by the board shall be permitted. 3058. Either party may seek judicial review of final orders of the board. Time for filing an action for such review shall not be more than 30 days from the date on which the final order of the board is delivered to the parties personally or is sent them by registered mail.


VEHICLE CODE
SECTION 3000-3016
3000. There is in the Department of Motor Vehicles a New Motor Vehicle Board, which consists of nine members. 3001. (a) Four of the appointive members of the board shall be new motor vehicle dealers as defined in Section 426 who have engaged for a period of not less than five years preceding their appointment in activities regulated by Article 1 (commencing with Section 11700) of Chapter 4 of Division 5. These members shall be appointed by the Governor. (b) Each of the five remaining appointive members shall be a public member who is not a licentiate under Article 1 (commencing with Section 11700) or 2 (commencing with Section 11800) of Chapter 4 of Division 5 or an employee of such licentiate at the time of appointment and one of these five appointive members shall have been admitted to practice law in the state for at least 10 years immediately preceding his or her appointment. One public member shall be appointed by the Senate Committee on Rules, one by the Speaker of the Assembly, and three by the Governor. (c) Each member shall be of good moral character. (d) This section does not apply to a dealer who deals exclusively in motorcycles, all-terrain vehicles, as defined in Section 111, or recreational vehicles, as defined in subdivision (a) of Section 18010 of the Health and Safety Code. 3002. The appointments of the appointive members shall be made effective as of the effective date of this article. 3003. (a) Each appointive member of the board shall be appointed for a term of four years and shall hold office until the appointment and qualification of his or her successor or until one year has elapsed since the expiration of the time for which he or she was appointed, whichever occurs first. (b) The terms of the members of the board first appointed shall expire as follows: one public member and one new motor vehicle dealer member, January 15, 1969; two public members and one new motor vehicle dealer member, January 15, 1970; two public members and two new motor vehicle dealer members, January 15, 1971. The terms shall thereupon expire in the same relative order. (c) Vacancies occurring shall be filled by appointment for the unexpired term. This section does not apply to a dealer who deals exclusively in motorcycles, all-terrain vehicles, as defined in Section 111, or recreational vehicles, as defined in subdivision (a) of Section 18010 of the Health and Safety Code. 3004. Members of the board shall take an oath of office as provided in the Constitution and the Government Code. 3005. The appointing authority has the power to remove from office at any time, any member of the board appointed by such appointing authority for continued neglect of duties required by law, or for incompetence, or unprofessional or dishonorable conduct. Nothing in this section shall be construed as a limitation or restriction on the power of the appointing authority, conferred by any other provision of law, to remove any member of the board. 3006. The board shall organize and elect a president from among its members for a term of one year at the first meeting of each year. The newly elected president shall assume his or her duties at the conclusion of the meeting at which he or she was elected. Reelection to office during membership is unrestricted. 3007. The board shall meet at least twice during each calendar year. Special meetings may be called at any time by the president or by any five members of the board upon notice for such time and in such manner as the board may provide. 3008. (a) All meetings of the board shall be open and public, and all persons shall be permitted to attend any meeting of the board, except that the board may hold executive sessions to deliberate on the decision to be reached upon the evidence introduced in a proceeding conducted in accordance with Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code. (b) At all meetings of the board, open or executive, involving an appeal from a decision of the Director of Motor Vehicles, the director or his or her authorized representative may attend, present the position of the department, and then shall absent himself or herself from any executive session at the request of any member of the board. (c) Within the limitations of its powers and authority, and in the event of disagreement between the board and the director regarding the decision to be reached, the decision of the board shall be final. 3010. Five members of the board shall constitute a quorum for the transaction of business, for the performance of any duty or the exercise of any power or authority of the board, except that three members of the board, who are not new motor vehicle dealers, shall constitute a quorum for the purposes of Article 4 (commencing with Section 3060) and the consideration of a petition pursuant to subdivision (c) of Section 3050 that involves a dispute between a franchisee and franchisor. 3011. A vacancy on the board shall not impair the power of the remaining members to perform all duties and exercise all powers of the board, providing the members remaining constitute a quorum. 3012. Each member of the board shall receive a per diem of one hundred dollars ($100) for each day actually spent in the discharge of official duties, and he or she shall be reimbursed for traveling and other expenses necessarily incurred in the performance of his or her duties. The per diem and reimbursement shall be wholly defrayed from funds that shall be provided in the annual budget of the department. 3013. The board shall adopt a seal and such other device as the members may desire thereon, by which they shall authenticate all papers Dui Lawyer and documents under their control. Copies of all records and papers in the board's office shall be received in evidence in all cases when certified under the hand and seal of the board, equally and with like effect as the originals. 3014. The board may appoint an executive director, who shall be exempt from civil service requirements, and who shall devote as much time as may be necessary to discharge the functions of the board as herein provided. The department shall provide the board with the necessary personnel, office space, equipment, supplies, and services that, in the opinion of the board, may be necessary to administer this chapter. However, the board may contract with the department or another state agency for office space, equipment, supplies, and services, as determined by the board to be appropriate, for Dui Lawyer the administration of this chapter. 3015. In addition to the office of the executive director in Sacramento, the department shall, as the need therefor occurs, secure adequate rooms for the meetings of the board in Los Angeles, San Francisco, Sacramento, or other locations in the state as may be required in the discretion of the board, to administer this chapter. 3016. (a) New motor vehicle dealers and other licensees under the jurisdiction of the board shall be charged fees sufficient to fully fund the activities of the board other than those conducted pursuant Dui Lawyer to Section 472.5 of the Business and Professions Code. The board may recover the direct cost of the activities required by Section 472.5 of the Business and Professions Code by charging the Department of Consumer Affairs a fee which shall be paid by the Department of Consumer Affairs with funds appropriated from the Certification Account in the Consumer Affairs Fund. All fees shall be deposited, and held separate from other moneys, in the Motor Vehicle Account in the State Transportation Fund, and shall not be transferred to the State Highway Account pursuant to Section 42273. (b) The fees shall be available, when appropriated, exclusively to fund the activities of the board. If, at the conclusion of any fiscal year, the amount of fees collected exceeds the amount of expenditures for this purpose during the fiscal year, the surplus Dui Lawyer shall be carried over into the succeeding fiscal year.





VEHICLE CODE
SECTION 2930-2935
2930. (a) "Commissioner" means the Commissioner of the California Highway Patrol. (b) "Fund" means the California Motorcyclist Safety Fund. (c) "Program" means the motorcyclist safety program established in this article. 2931. A motorcyclist safety program is hereby established in the Department of the California Highway Patrol, to be administered by the commissioner. 2932. The commissioner may, through contracts with other public agencies or with private entities, do all of the following: (a) Provide financial or other support to projects aimed at enhancing motorcycle operation and safety, including, but not limited to, motorcyclist  Dui Lawyer safety training programs. The motorcyclist safety training programs shall comply with criteria which the commissioner, in consultation with other state agencies and national motorcycle safety organizations, may adopt to provide validated motorcyclist safety training programs in the state. (b) Sponsor and coordinate efforts aimed at increasing motorists' awareness of motorcyclists. (c) Sponsor research into effective communication techniques to reach all highway users on matters of motorcyclist safety. (d) Establish an advisory committee of persons from other state and local agencies with an interest in motorcycle safety; persons from the motorcycle industry; motorcycle safety organizations; motorcycle enthusiast organizations; and others with an interest in motorcycle safety, to assist in the establishment of a comprehensive program of motorcycle safety. (e) Adopt standards for course content, contact hours, curriculum, instructor training and testing, and instructional quality control, and setting forth a maximum amount for course fees for the novice rider training course specified in subdivisions (g) and (i) of Section Dui Lawyer 12804.9. (f) (1) Adopt standards for course content, contact hours, curriculum, instructor training and testing, and instructional quality control, for a premier motorcyclist safety training program. Motorcycle safety training courses offered under a premier motorcyclist safety training program shall meet all of the following requirements: (A) Provide a core curriculum approved for the novice rider training course specified in subdivision (e). (B) Additional course requirements established by the commissioner. (2) On and after January 1, 2008, the commissioner shall not impose a maximum amount for course fees for courses provided under the premier motorcyclist safety training program. (3) All administrative costs of a premier motorcyclist safety training program shall be paid for by the provider, and none of the costs shall be paid for by the state. 2933. The commissioner shall not directly manage or provide program services. Any program service financed under this article shall be provided under contractual arrangements or grant funding. All public agencies assisting or providing program services under Dui Lawyer this article shall be fully reimbursed for their costs by the commissioner. The commissioner shall monitor and evaluate any contracts or grants executed pursuant to this article to ensure that the provisions of the contracts or grants are adhered to by the recipients. 2934. (a) The California Motorcyclist Safety Fund is hereby created in the State Treasury. The money in the fund is available, when appropriated by the Legislature, to fund programs established pursuant to this article and to defray related costs incurred. Moneys in the fund are and shall be Dui Lawyer held as trust funds for the exclusive trust purposes specified in this article. (b) The commissioner shall not in any way encumber moneys in the fund beyond that amount which is actually available in the fund at the time of encumbrance, and shall not in any manner pledge or encumber future revenues to accrue to the fund from any source. 2935. The Department of Motor Vehicles shall, in addition to other fees, collect a fee of two dollars ($2) upon initial registration and renewal of registration of every motorcycle subject to registration fees.  Dui Lawyer These additional fees shall be deposited in the fund.


VEHICLE CODE
SECTION 3050-3051
3050. The board shall do all of the following: (a) Adopt rules and regulations in accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code governing those matters that are specifically committed to its jurisdiction. (b) Hear and determine, within the limitations and in accordance with the procedure provided, an appeal Dui Lawyer presented by an applicant for, or holder of, a license as a new motor vehicle dealer, manufacturer, manufacturer branch, distributor, distributor branch, or representative when the applicant or licensee submits an appeal provided for in this chapter from a decision arising out of the department. (c) Consider any matter concerning the activities or practices of any person applying for or holding a license as a new motor vehicle dealer, manufacturer, manufacturer branch, distributor, distributor branch, or representative pursuant to Chapter 4 (commencing with Section 11700) of Division 5 submitted by any person. A member of the board who is a new motor vehicle dealer may not participate in, hear, comment, advise other members upon, or decide any matter considered by the board pursuant to this subdivision that involves a dispute between a franchisee and franchisor. After that consideration, the board may do any one or any combination of the following: (1) Direct the department to conduct investigation of matters that the board deems reasonable, and make a written report on the results of the investigation to the board within the time specified by the board. (2) Undertake to mediate, arbitrate, or otherwise resolve any honest difference of opinion or viewpoint existing between any member of the public and any new motor vehicle dealer, manufacturer, manufacturer branch, distributor,  Dui Lawyer distributor branch, or representative. (3) Order the department to exercise any and all authority or power that the department may have with respect to the issuance, renewal, refusal to renew, suspension, or revocation of the license of any new motor vehicle dealer, manufacturer, manufacturer branch, distributor, distributor branch, or representative as that license is required under Chapter 4 (commencing with Section 11700) of Division 5. (d) Hear and decide, within the limitations and in accordance with the procedure provided, a protest presented by a franchisee pursuant to Section 3060, 3062, 3064, 3065, 3065.1, 3070, 3072, 3074, 3075, or 3076. A member of the board who is a new motor vehicle dealer may not participate in, hear, comment, advise other members upon, or decide, any matter involving a protest filed pursuant to Article 4 Dui Lawyer (commencing with Section 3060), unless all parties to the protest stipulate otherwise. (e) Notwithstanding subdivisions (c) and (d), the courts have jurisdiction over all common law and statutory claims originally cognizable in the courts. For those claims, a party may initiate an action directly in any court of competent jurisdiction. 3050.1. (a) In a proceeding, hearing, or in the discharge of duties imposed under this chapter, the board, its executive director, or an administrative law judge designated by the board may administer oaths, take depositions, certify to official acts, and issue subpoenas to compel attendance of witnesses and the production of books, records, papers, and other documents in any part of the state. (b) For purposes of discovery, the board or its executive director may, if deemed appropriate and proper under the circumstances, authorize the parties to engage in the civil action discovery procedures in Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure, excepting the provisions of Chapter 13 (commencing with Section 2030.010) of that title. Discovery shall be completed no later than 15 days prior to the commencement of the proceeding or hearing before the board. This subdivision shall apply only to those proceedings or hearings involving a petition or protest filed pursuant to subdivision (c) or (d) of Section 3050. The board,  Dui Lawyer its executive director, or an administrative law judge designated by the board may issue subpoenas to compel attendance at depositions of persons having knowledge of the acts, omissions, or events that are the basis for the proceedings, as well as the production of books, records, papers, and other documents. 3050.2. (a) Obedience to subpoenas issued to compel attendance of witnesses, or the production of books, records, papers, and other documents at the proceeding or hearing, may be enforced by application to the superior court as set forth in Article 2 (commencing with Section 11180) of Chapter 2 of Part 1 of Division 3 of Title 2 of the Government Code. (b) Compliance with discovery procedures authorized pursuant to subdivision (b) of Section 3050.1 may be enforced by application to the executive director of the board. The executive director may, at the direction of the board, upon a showing of failure to comply with authorized discovery without substantial justification for that failure, dismiss the protest or petition or suspend the proceedings pending compliance. The executive director may, at the direction of the board, upon a failure to comply with authorized discovery without substantial justification for that failure, require payment of costs incurred by the board, as well as attorney's fees and costs of the party who successfully makes or opposes a motion to compel enforcement of discovery. Nothing in this section precludes the executive director from making application to the superior court to enforce obedience to subpoenas or compliance with other discovery procedures authorized pursuant to subdivision (b) of Section 3050.1. 3050.3. A witness, other than an officer or employee of the state or of a political subdivision of the state, who appears by order of the board or its executive director, shall receive for his or her attendance the same fees and the same mileage allowed by law to witnesses in civil cases. The amount Dui Lawyer shall be paid by the party at whose request the witness is subpoenaed. The mileage and fees, if any, of a witness subpoenaed by the board or its executive director, but not at the request of a party, shall be paid from the funds provided for the use of the board in the same manner that other expenses of the board are paid. 3050.4. In a protest or petition before the board, the board, its executive director, or an administrative law judge designated by the board or its executive director, may order a mandatory settlement conference. The failure of a party to appear, to be prepared, or to have authority to settle the matter may result in one or more of the following: (a) The board, its executive director, or an administrative law judge designated by the board or its executive director, may suspend all proceedings before the board in the matter until compliance. (b) The board, its executive director, or an administrative law judge designated by the board or its executive director, may dismiss the proceedings or any part thereof before the board with or without prejudice. (c) The board, its executive director, or an administrative law judge designated by the board or its executive director, may require all the board's costs to be paid by the party at fault. (d) The board, its executive director, or an administrative law judge designated by the board or its executive director, may deem that the party at fault has abandoned the matter. 3050.5. Pursuant to Section 3016, the board shall establish a fee for the initial filing by any party in regard to any appeal, protest, or petition filed pursuant to this chapter. 3050.6. The board or its executive director may, in the event of a granting of a continuance of a scheduled matter, assess costs of the board upon the party receiving the continuance. 3050.7. (a) The board may adopt stipulated decisions and orders, without a hearing pursuant to Section 3066, to resolve one or more issues raised by a protest or petition filed with the board. Whenever the parties to a protest or petition submit a proposed stipulated decision and order of the board, a copy of the proposed Dui Lawyer stipulated decision and order shall be transmitted by the executive director of the board to each member of the board. The proposed stipulated decision and order shall be deemed to be adopted by the board unless a member of the board notifies the executive director of the board of an objection thereto within 10 days after that board member has received a copy of the proposed stipulated decision and order. (b) If the board adopts a stipulated decision and order to resolve a protest filed pursuant to Section 3060 or 3070 in which the parties stipulate that  Dui Lawyer good cause exists for the termination of the franchise of the protestant, and the order provides for a conditional or unconditional termination of the franchise of the protestant, paragraph (2) of subdivision (a) of Section 3060 and paragraph (2) of subdivision (a) of Section 3070, which require a hearing to determine whether good cause exists for termination of the franchise, is inapplicable to the proceedings. If the stipulated decision and order provides for an unconditional termination of the franchise, the franchise may be terminated without further proceedings by the board. If the stipulated decision and order provides for the termination of the franchise, conditioned upon the failure of a party to comply with specified conditions, the franchise may be terminated upon a determination, according to the terms of the stipulated decision and order, that the conditions have not been met. If the stipulated decision and order provides for the termination of the franchise conditioned upon the occurrence of specified conditions, the franchise may be terminated upon a determination, according to the terms of the stipulated decision and order, that the stipulated conditions have occurred. 3051. This chapter does not apply to any person licensed as a transporter under Article 1 (commencing with Section 11700) or as a salesperson under Article 2 (commencing with Section 11800) of Chapter 4 of Division 5, or to any licensee who is not a new motor vehicle dealer, motor vehicle manufacturer, manufacturer branch, new motor vehicle distributor, distributor branch, or representative. This chapter does not apply to transactions involving "mobilehomes," as defined in Section 18008 of the Health and Safety Code, "recreational vehicles," as defined in subdivision (b) of Section 18010 of the Health and Safety Code, truck campers, "commercial coaches," as defined in Section 18001.8 of the Health and Safety Code, or off-highway motor vehicles subject to identification, as defined in Section 38012, except off-highway motorcycles, as defined in Section 436, and all-terrain vehicles, as defined in Section 111. Except as otherwise provided in this chapter, this chapter applies to a new motor vehicle dealer, a dealer of new recreational vehicles, as defined in subdivision (a) of Section 18010 of the Health and Safety Code, except a dealer who deals exclusively in truck campers, a vehicle manufacturer as defined in Section 672, a manufacturer branch as defined in Section 389, a distributor as defined in Section 296, a distributor branch as defined in Section 297, a representative as defined in Section 512, or an applicant therefor. Dui Lawyer  Dui Lawyer

VEHICLE CODE
SECTION 23620-23626
23620. (a) For the purposes of this division, Section 13352, and Chapter 12 (commencing with Section 23100) of Division 11, a separate offense that resulted in a conviction of a violation of subdivision (f) of Section 655 of the Harbors and Navigation Code or of Section 191.5 of, or subdivision (a) of Section 192.5 of, the Penal Code is a separate offense of a violation of Section 23153. (b) For the purposes of this division and Chapter 12 (commencing with Section 23100) of Division 11, and Section 13352,  Dui Lawyer a separate offense that resulted in a conviction of a violation of subdivision (b), (c), (d), or (e) of Section 655 of the Harbors and Navigation Code is a separate violation of Section 23152. 23622. (a) In any case charging a violation of Section 23152 or 23153 and the offense occurred within 10 years of one or more separate violations of Section 23103, as specified in Section 23103.5, that occurred on or after January 1, 1982, 23152, or 23153, or any combination thereof, that resulted in convictions, the court shall not strike any separate conviction of those offenses for purposes of sentencing in order to avoid imposing, as part of the sentence or term of probation, the minimum time of  Dui Lawyer imprisonment and the minimum fine, as provided in this chapter, or for purposes of avoiding revocation, suspension, or restriction of the privilege to operate a motor vehicle, as provided in this code. (b) In any case charging a violation of Section 23152 or 23153, the court shall obtain a copy of the driving record of the person charged from the Department of Motor Vehicles and may obtain any records from the Department of Justice or any other source to determine if one or more separate violations of Section 23103, as specified in Section 23103.5, that occurred on or after January 1, 1982, 23152, or 23153, or any combination thereof, that resulted in convictions, have occurred within 10 years of the  Dui Lawyer charged offense. The court may obtain, and accept as rebuttable evidence, a printout from the Department of Motor Vehicles of the driving record of the person charged, maintained by electronic and storage media pursuant to Section 1801 for the purpose of proving those separate violations. (c) If any separate convictions of violations of Section 23152 or 23153 are reported to have occurred within 10 years of the charged offense, the court shall notify each court where any of the separate convictions occurred for the purpose of enforcing terms and conditions of probation pursuant to Section 23602. 23624. Only one challenge shall be permitted to the constitutionality of a separate conviction of a violation of Section 14601, 14601.2, 23152, or 23153, which was entered in a separate proceeding. When a proceeding to declare a separate judgment of conviction constitutionally invalid has been held, a determination by the court that the separate conviction is constitutional precludes any  Dui Lawyer subsequent attack on constitutional grounds in a subsequent prosecution in which the same separate conviction is charged. In addition, any determination that a separate conviction is unconstitutional precludes any allegation or use of that separate conviction in any judicial or administrative proceeding, and the department shall strike that separate conviction from its records. Pursuant to Section 1803, the court shall report to the Department of Motor Vehicles any determination upholding a conviction on constitutional grounds and any determination that a conviction is unconstitutional. This section shall not preclude a subsequent challenge to a conviction if, at a later time, a subsequent statute or appellate court decision having retroactive application affords any new basis to challenge the constitutionality of the conviction.  Dui Lawyer 23626. A conviction of an offense in any state, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or the Dominion of Canada that, if committed in this state, would be a violation of Section 23152 or 23153 of this code, or Section 191.5 of, or subdivision (a) of Section 192.5 of, the Penal Code, is a conviction of Section 23152 or 23153 of this code, or Section 191.5 of, or subdivision (a) of Section 192.5 of, the Penal Code for the purposes of this code.  VEHICLE CODE
SECTION 23520-23521
23520. (a) Whenever, in any county specified in subdivision (b), a judge of a juvenile court, a juvenile hearing officer, or referee of a juvenile court finds that a person has committed a first violation of Section 23152 or 23153, the person shall be required to participate in and successfully complete an alcohol or drug education program, or both of those programs, as designated by the court. The expense of the person's attendance in the program shall be paid by the person's parents or guardian so long as the person is under the age of 18 years, and shall be paid by the person thereafter. However, in approving the program, each county shall require the program to provide for the payment of the fee for the program in installments by any person who cannot afford to pay the full fee at the commencement of the program and shall require the program to provide for the waiver of the fee for any person who is indigent, as determined by criteria for indigency established by the board of supervisors. Whenever it can be done without substantial additional cost, each county shall require that the program be provided for juveniles at a separate location from, or at a different time of day than, alcohol and drug education programs for adults. (b) This section applies only in those counties that have one or more alcohol or drug education programs certified by the county alcohol program administrator and approved by the board of supervisors. 23521. (a) Any finding of a juvenile court judge, juvenile hearing officer, or referee of a juvenile court of a commission of an offense in any state, territory, possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or the Dominion of Canada that, if committed in this state, would be a violation of Section 23152, is a conviction of a violation of Section 23152 for the purposes of Sections 13352, 13352.3, 13352.4, and 13352.5, and the finding of a juvenile court judge, juvenile hearing officer, or referee of a juvenile court of a commission of an offense that, if committed in this state, would be a violation of Section 23153 is a conviction of a violation of Section 23153 for the purposes of Sections 13352 and 13352.3. (b) This section shall become operative on September 20, 2005.