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California State DUI Laws Violate the Constitution Band on Double Jeopardy!

Drafted and Designed by Joel Drotts J.D.

Copyrighted 5/1/2013

In the halls of “bad statutes as a policy, which are blatantly failing this state, none stands quite as high as the DUI laws and vehicle licensing suspensions. By the DMV’s own estimates, as of

2009 as many as 70% of all California drivers convicted of a multiple offender DUI charges fail their required 6 month to 16 month long DUI classes. To put that in perspective in 2009 there

were 168,059 convictions for multiple offenders DUI’s (Having more than one DUI in a ten year period.). Of that number roughly 117,264 failed to complete their mandatory DUI education classes.

Why should anyone care that over 100,000 Californians annually fail to complete their multiple offender education programs? There are two very distinct and real reasons why Californians should care about this number. The first being the fact that until multiple offenders completes these courses their licenses remain suspended or revoked, and secondly these suspensions and

revocations are being done unconstitutionally and illegally. If you still don’t grasp why this should concern you or how it effects you, ask yourself this; what do you think those 100,000+ annually do without their license to get them to work, pick up their kids, or any of the things most adults are required to drive in order to do? Do you think they simply left the State, or decide not to drive? Or do you now understand that the State of California is pumping out 100,000+ unlicensed and therefore uninsured drivers living in the State of California?

How did this happen? How is this possible? Why would the State of California purposely enforce and enact unconstitutional laws which create 100,000+ new unlicensed and therefore uninsured drivers annually to take to California roadways? Well, first of all let’s all agree that politicians are not very bright or realistic when it comes to how they deal with crime or crime issues. Basically what happens is every election cycle a State Legislator seeking to be re-elected dusts off a topic or issue that may or may not be in the news at the time. DUI’s is a favorite target, as everyone can agree DUI\s are bad, we don’t like them, and so we’re going to enact ever stiffer punishments on DUI’s, no matter how harmful those policies and laws are to those people whom make the mistake of DUI’ing, the State, insurance premiums, law enforcement, or even the Constitution. Everyone gets behind it, as no one wants to be the asshole out there telling the public that they’re pro-DUI.

Unfortunately the rhetoric surrounding this topic, “Always only brought up during an election year,” is one that the politician who actually comes out and says “That won’t work” or “That’s too harsh” will be crucified in the polls and on TV as being pro-DUI’s or something of that nature. For the purposes of understanding how we got to this impasse, just imagine the road to DUI policy is a one way only, with ever increasing speed limits, and it doesn’t matter that at the end of this one way road is a huge cliff. The politicians are strictly, “Damned the torpedoes of logic, reason, or reality and full steam ahead towards eventually giving people the electric chair if they so much as even think about driving under the influence. Especially when to take this sort of mentality politicians enjoy the support of groups like MAAD, Mothers Against Drunk Driving. Never mind the founder of the group was arrested and convicted herself of a DUI, coming home from a MAAD fundraiser. Ain’t karma a bitch?

Either way you cut it DUI’s as a hot button issue, is politically divisive, and has had no one pushing back on the other end stating “Hey, legislature and voters, we’re taking this DUI thing too far!” That was until this article, which calls into question or points out the fact that not only is California creating over 100,000+ unlicensed and therefore uninsured drivers annually, but California is doing so unconstitutionally. The way the State is doing this is by unconstitutionally requiring multiple-offenders attend 12-16 months of DUI classes, and then suspending or revoking the driving privileges of Californian’s until they complete the courses. However, only 30 % of the 168,000+ annually since 2009 multiple-offenders whom sign up for these classes end up finishing.

Why? First of all it’s the length. Not even a college semester at a fully accredited college, where actual learning takes place offers courses of this length. Then one only gets six absences to spread out over the 12-16 month period, and if you miss more than two in a row they kick you out. Why? They want the re-sign-up fees. Then the courses are only offered in very remote places, and only on the strangest of days and times. Each class is required two hours long, and you may not opt. to speed up your hours. For example take a week off, and do 40 hours straight and knock it out. Why? I have no idea.

Moreover, neither does the DMV itself which states on page 56 of the “ANNUAL REPORT OF THE CALIFORNIA DUI MANAGEMENT INFORMATION SYSTEM, ANNUAL REPORT TO THE LEGISLATURE OF THE STATE OF CALIFORNIA, IN ACCORDANCE WITH ASSEMBLY BILL 757 CHAPTER 450, 1989 LEGISLATIVE SESSION, JANUARY 2012 that “The effectiveness of increasing the duration of time for DUI intervention programs has also not been supported in the literature. DeYoung examined the effectiveness of lengthening SB 38 alcohol treatment programs from 12 to 18 months for second offenders and found no evidence that the additional 6 months contributed to reducing DUI recidivism (DeYoung, 1995). A final limitation of these analyses should be noted. Since this study only included first offenders whose conviction abstract had information on the length of DUI program, there may be additional unknown biases that this quasi-experimental design cannot rule out. However, the statistical control of group differences based on available covariates would be expected to remove at least part of the bias.”

That’s right! Even the DMV’s own annual report to the State Legislature states there is no proof the longer classes do anything besides create 100,000+ unlicensed and therefore uninsured drivers annually in the State of California. So why then, is this harmful program allowed to continue? See the aforementioned arguments of politicians seeking votes, and making dumb decisions. That and there is big money in it I suppose, what with all the kicking people out, re-signing up, and just in general keeping people on an endless hamster wheel. These are people mind you who already had to do jail time, pay large fines, increased insurance premiums (If they ever get their license back again.), and remain on probation. Then to add the ultimate insult to injury, the entire thing (Or at least the classes and no driver’s license thing is done unconstitutionally.).

In the Fifth Amendment of the United States Constitution there is not a little used, but very powerful phrase; “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” This is known as the double jeopardy clause and it states that the States cannot try you twice for the same offense, punish you twice for the same crime, and cannot use laws generally close in drafting and claim that they are different. One recurrent problem with the new per se statutes stems from the common prosecutorial practice of charging a defendant with both the traditional and the per se offenses. (The phrase "per se" is also applied to the DMV's "administrative per se" (APS) driver's license suspension automatically imposed by the arresting officer where the driver has a .08% blood alcohol test result.) Although the defendant may not be punished for both offenses, many jurisdictions have permitted him to be convicted of both.

A California case, People v. Cosko, 152 Cal. App. 3d 54, 199 Cal. Rptr. 289 (1984), discusses the issue of whether the defendant could be convicted twice under separate subdivisions of the California Vehicle Code. The driver's argument was presented as follows:

Appellant contends that he was improperly convicted of two counts of driving under the influence, one for violating Vehicle Code section 23153, subdivision (a), and another for violating subdivision (b) of the same section based on one incident. We conclude that the Legislature added the 0.10 percent blood alcohol offense subdivision (subd. b) to facilitate proof of driving under the influence and that it did not intend a single driving under the influence incident to result in two driving under the influence convictions under Vehicle Code section 23153.

“We are not concerned with the question of double charging, which is within the prosecutor's discretion, or with double punishment, which is clearly prohibited by Penal Code section 654. The question of double conviction, however, requires analysis of the legislative intent behind the addition of the 0.10 percent subdivision. [Id. at 290.]” The court concluded that the legislature did not intend that routine driving under the influence convictions would result in two convictions. The court based this opinion on an examination of the legislative history and the sentencing scheme of the statute. The court therefore held:

“The general rule in the case of an improper combination of convictions is that the less serious offense is vacated while the more serious stands. (E.g., People v. Cole, supra, 31 Cal. 3d at p.582.) Since neither the under the influence offense nor the 0.10 percent offense is more serious than the other, the determination which conviction should stand is a discretionary matter. [Id. at 291-292.]”

The Cosko decision was subsequently ordered by the California court not to be published. However, a later case was published. In People v. Duarte, 161 Cal. App. 3d 438 (1984), a California appellate court held that a defendant may be convicted under both statutes. However, he may only be punished for one; the judge must choose which one. Technically, punishment for the second conviction is temporarily stayed until after completion of sentence on the first — at which time the stay is made permanent. Also, only one of the convictions may be used as a prior conviction for purposes of enhanced punishment on future DUI convictions.

13353.2. (a) The department shall immediately suspend the privilege of a person to operate a motor vehicle for any one of the following reasons:

(1) The person was driving a motor vehicle when the person had 0.08 percent or more, by weight, of alcohol in his or her blood.

(2) The person was under 21 years of age and had a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test, or other chemical test.

(3) The person was driving a vehicle that requires a commercial driver's license when the person had 0.04 percent or more, by weight, of alcohol in his or her blood.

(4) The person was driving a motor vehicle when both of the following applied:

(A) The person was on probation for a violation of Section 23152 or 23153.

(B) The person had 0.01 percent or more, by weight, of alcohol in his or her blood, as measured by a preliminary alcohol screening test or other chemical test.

(b) The notice of the order of suspension under this section shall be served on the person by a peace officer pursuant to Section 13382 or 13388. The notice of the order of suspension shall be on a form provided by the department. If the notice of the order of suspension has not been served upon the person by the peace officer pursuant to Section 13382 or 13388, upon the receipt of the report of a peace officer submitted pursuant to Section 13380, the department shall mail written notice of the order of the suspension to the person at the last known address shown on the department's records and, if the address of the person provided by the peace officer's report differs from the address of record, to that address.

(c) The notice of the order of suspension shall specify clearly the reason and statutory grounds for the suspension, the effective date of the suspension, the right of the person to request an administrative hearing, the procedure for requesting an administrative hearing, and the date by which a request for an administrative hearing shall be made in order to receive a determination prior to the effective date of the suspension.

(d) The department shall make a determination of the facts in subdivision (a) on the basis of the report of a peace officer submitted pursuant to Section 13380. The determination of the facts, after administrative review pursuant to Section 13557, by the department is final, unless an administrative hearing is held pursuant to Section 13558 and any judicial review of the administrative determination after the hearing pursuant to Section 13559 is final.

(e) The determination of the facts in subdivision (a) is a civil matter that is independent of the determination of the person's guilt or innocence, shall have no collateral estoppel effect on a subsequent criminal prosecution, and shall not preclude the litigation of the same or similar facts in the criminal proceeding. If a person is acquitted of criminal charges relating to a determination of facts under subdivision (a), or if the person's driver's license was suspended pursuant to Section 13388 and the department finds no basis for a suspension pursuant to that section, the department shall immediately reinstate the person's privilege to operate a motor vehicle if the department has suspended it administratively pursuant to subdivision (a), and the department shall return or reissue for the remaining term any driver's license that has been taken from the person pursuant to Section 13382 or otherwise. Notwithstanding subdivision (b) of Section 13558, if criminal charges under Section 23140, 23152, or 23153 are not filed by the district attorney because of a lack of evidence, or if those charges are filed but are subsequently dismissed by the court because of an insufficiency of evidence, the person has a renewed right to request an administrative hearing before the department. The request for a hearing shall be made within one year from the date of arrest.

Sentencing decisions favorable to the defendant, moreover, cannot generally be analogized to an acquittal. We have held that where an appeals court overturns a conviction on the ground that the prosecution proffered insufficient evidence of guilt, that finding is comparable to an acquittal, and the Double Jeopardy Clause precludes a second trial. See Burks v. United States, 437 U.S. 1, 16 (1978)

(f) The department shall furnish a form that requires a detailed explanation specifying which evidence was defective or lacking and detailing why that evidence was defective or lacking. The form shall be made available to the person to provide to the district attorney. The department shall hold an administrative hearing, and the hearing officer shall consider the reasons for the failure to prosecute given by the district attorney on the form provided by the department. If applicable, the hearing officer shall consider the reasons stated on the record by a judge who dismisses the charges. A fee shall not be imposed pursuant to Section 14905 for the return or reissuing of a driver's license pursuant to this subdivision. The disposition of a suspension action under this section does not affect an action to suspend or revoke the person's privilege to operate a motor vehicle under another provision of this code, including, but not limited to, Section 13352 or 13353, or Chapter 3 (commencing with Section 13800).

Amended Sec. 2, Ch. 749, Stats. 2007. Effective January 1, 2008. Operative January 1, 2009.

Amended Sec. 219, Ch. 179, Stats. 2008. Effective January 1, 2009.


The history of the interpretation of the Double Jeopardy Clause by the Supreme Court is complex, and, as the Court itself confessed, it is not a "model of consistency and clarity." Burks v. United States (1978). Over time, however, the Court identified the clause as embodying three protections of the individual against the government: (1) no second prosecution for the same offense after an acquittal; (2) no second prosecution for the same offense after a guilty verdict; and (3) no multiple punishments for the same offense. See Monge v. California (1998). Blockburger v. United States 284 U.S. 299 (1932) The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not. This is particularly problematic as the DMV does presume to hold an Administrative hearing where evidence, facts, and the notions of guilt are called into question with consequences upon the accused. Gavieres v. United States,220 U. S. 338, 220 U. S. 342, and authorities cited. In that case, this court quoted from and adopted the language of the Supreme Court of Massachusetts in Morey v. Commonwealth, 108 Mass. 433:

Petitioner contends that the rationale for imposing a double jeopardy bar in Bullington and Rumsey applies with equal force to California’s proceedings to determine the truth of a prior conviction allegation. Like the Missouri capital sentencing scheme at issue in Bullington, petitioner argues, the sentencing proceedings here have the “hallmarks of a trial on guilt or innocence” because the sentence makes an objective finding as to whether the prosecution has proved a historical fact beyond a reasonable doubt. The determination whether a defendant in fact has qualifying prior convictions may be distinguished, petitioner maintains, from the normative decisions typical of traditional sentencing. In petitioner’s view, once a defendant has obtained a favorable finding on such an issue, the State should not be permitted to retry the allegation.

A crucial issue turns on the definition of "offense." Modern criminal law is characterized by "specificity in draftsmanship"; it is also characterized, as a result, by an "extraordinary proliferation of overlapping and related statutory offenses." Double-jeopardy protections depend, therefore, on a careful ascertaining of what constitutes an "offense," that is, what is the "allowable unit of prosecution." However, few limits, if any, are imposed by the Double Jeopardy Clause on the legislative power to define offenses. But once a legislature defines that proscription, it "determines the scope of protection afforded by a prior conviction or acquittal." To ascertain whether two statutory offenses constitute two "offenses" for double jeopardy, which would prohibit successive prosecutions, the Court follows a multiple-element test to determine whether each "offense" contains an element that is not common to the other. Blockburger v. United States (1932). Under the Blockburger test, the Double Jeopardy Clause prevents successive prosecutions for both greater and lesser included offenses. The focus of the test is on statutory elements rather than evidence or conduct.

This is exactly what California has done. It has created a system whereby the State through two different agencies has managed to twice place Californian’s in a position whereby they must defend their innocence or be punished, the facts and elements of the same crime are called into issue, and in a hearing which can and does rule completely separate of the Courts. So think about it? Let’s recap shall we? The State of California currently has laws on the books that annually produces 100,000+ unlicensed and therefore uninsured drivers, due to the fact the State unconstitutionally forces Californian’s convicted of multiple DUI offenses to enroll and complete extraordinarily long and expensive classes that are hard to complete in order to regain their driver’s license, and return to the road as licensed and insured drivers.

So what’s the answer? The State needs to stop violating the double jeopardy Constitutional rights of multiple offenders, by striking completely the illegal requirements for the DUI classes. The Courts can lawfully suspend the drivers’ licenses of offenders, without tying the regaining of their drivers licenses to the completion of the un-useful and counter policy courses. Furthermore, the State of California must allow the Courts only to suspend the drivers’ licenses of multiple offenders for DUI’s, and stop the DMV from conducting secondary trials and being allowed to punish through the suspension of driving privileges. Hopefully, now that the public has been made aware of the problem, the Government will self-correct itself on its own.

CA DUI Laws Need Change

Drafted and Produced by Joel Drotts

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