Author: Susan Haber

Susan Haber is the Director of Legal Services and the Senior Managing Attorney at The Kavinoky Law Firm. For over 20 years, Susan has practiced in the area of criminal law in Los Angeles, California. In 1995, Susan graduated Summa Cum Laude from U.C.L.A. and graduated from Loyola Law School in 1998. Prior to working at The Kavinoky Law Firm, Susan was a Deputy District Attorney for many years at the Los Angeles County District Attorney’s Office.

Ignition Interlock Device Law Effective Date: January 1, 2019

Introduction:

Effective January 1, 2019, the Ignition Interlock Law will become effective California state-wide due to Senate Bill 1046 being signed into law by Governor Jerry Brown. The new law will remain in effect until January 1, 2026.

In 2010, the pilot Ignition Interlock Device program became effective in Alameda, Los Angeles, Sacramento and Tulare Counties. This program required individuals whose driving privileges were suspended by the California Department of Motor Vehicles Mandatory Actions Unit because of a conviction in criminal court for driving under the influence of alcohol or driving with .08% or more of alcohol in his/her system (as a misdemeanor or a felony) to install an Ignition Interlock Device (hereafter “IID”) for a minimum of 6 months after being sentenced.  The pilot program’s findings showed that the installation of IIDs reduced the number of DUI incidents and those who re-offend (continue to drive while under the influence of alcohol or drive with a blood alcohol content or .08% or higher.)

 

What is an Ignition Interlock Device (IID)?

An IID is a breath machine which is connected to the starting-component of a vehicle.  For the vehicle to start, the driver must blow into the device. The device is installed on the vehicle’s steering column. The sample of air blown into the device is analyzed to ensure there is no alcohol in the breath sample.  If there is alcohol in the breath sample, the car will not start.

Once the car has started, the IID will require the driver to provide breath samples during the time the vehicle is turned on and moving by alerting the driver that he/she needs to blow into the machine and provide a breath sample.  The driver blows into the device while driving and does not need to pull over, stop, or turn off the car in order to provide a breath sample.

Breath samples are recorded and saved by the device.  The company responsible for maintaining and calibrating the IID will store all breath results of samples provided. A violation of the proper use of the device (i.e.: detection of alcohol in a breath sample, tampering, disabling the device) may result in the Department of Motor Vehicles terminating a person’s ability to have a restricted license with the IID and reinstate the mandatory suspension of a person’s driving privileges.

 

How much does the IID cost?

The monthly cost of having an IID in one’s vehicle depends on the make and model of one’s vehicle and includes the installation, maintenance/calibration every 2 months, and removal of the IID. It is approximately $75.00 per month to have an IID in one’s vehicle.

 

How Long Does a Person Need to have an IID?

The length of time a person needs to have an IID installed in his/her vehicle depends on the charge for which the person is convicted:

 

First DUI conviction within 10 years:

Without injuries:

6-month restricted license with an IID installed where one can drive anywhere he/she chooses, OR

1-year restricted license to only drive to and from work and an alcohol treatment program

With injuries:

6-month restricted license with an IID is required. There is no option to forgo installing the IID and having restricted driving privileges.

 

Second misdemeanor DUI conviction within 10 years:

IID required for one year

 

Third misdemeanor DUI conviction within 10 years:

IID required for two years

 

Fourth or subsequent DUI conviction within 10 years:

IID required for three years

 

How does this affect drivers in pilot counties?

In Alameda, Los Angeles, Sacramento, or Tulare Counties, the new law will not result in any significant effect to drivers who are convicted of a DUI starting in 2019.

The main difference that the new law has created for all counties (including the pilot counties) is that a person, as of January 1, 2019, can have an IID installed in his/her vehicle after arrest to avoid any significant disruption in his/her ability to legally drive. If the IID is installed in the vehicle prior to it being mandated by the Department of Motor Vehicles, a person can receive credit for the total amount of time he/she has the IID in his/her vehicle so long as the driver obtains prior approval from the California DMV to obtain a restricted license.

 

We encourage anyone who is arrested for a DUI as of January 1, 2019 to take the following steps:

After Arrest:  Call 1-800-NoCuffs!

The police will take a person’s California Driver’s License away if a person’s blood or breath alcohol test is .08% or higher, or if a person refuses to submit to a chemical test. The police will give a person a temporary license which is on a pink sheet of paper and is only valid for 30 days from the date of arrest.

 

Minimizing the number of days a person’s license will be suspended (without the ability to drive at all):

  1. An insurance company must electronically file an SR-22 form with the DMV. An SR-22 is a form shows the DMV that a person is insured while driving a vehicle.
  2. Register for a DMV-approved alcohol education class. Proof of enrollment must be electronically sent to DMV.
  3. Install an Ignition Interlock Device in any car you own or operate. The IID company should provide you with proof of installation AND send electronically to the DMV proof of installation as well.
  4. Pay a license reissuance fee to the DMV once approved for a restricted license.

 

10-Day Rule Still Applies:

A person must still request an administrative per se hearing with the California DMV within 10 days from arrest in order to preserve your right to a hearing.

 

Upon a conviction of a DUI in court:

  1. A person can avoid a 30 day hard-suspension IF the steps above are followed.
  2. A person will receive credit for time you have had a restricted license with the IID if you obtained a restricted license before your conviction in court.

 

Exceptions to being immediately eligible for the installation of an IID:

Those who fall into one of the categories below will not be allowed to install an IID and obtain a restricted license if he/she receives a conviction in court for one of the items below and/or the DMV suspends a person’s driving privileges based on an Administrative Per Se Hearing:

  1. Refusing to submit to a chemical test when requested by a peace officer
    1. 1-year hard suspension/ no driving (if convicted in court and/or APS hearing is upheld)
  2. Commercial license holders (Class A or B)
    1. 1-year hard suspension/no driving (if convicted in court and/or APS hearing is upheld)
  3. Drivers under 21 (if convicted in court for a traffic infraction of having any measurable amount of alcohol in one’s system while driving and/or reckless driving with alcohol in one’s system, or misdemeanor DUI):
    1. 30 days hard suspension (no driving)
    2. One apply for a critical needs license after the first 30 days of no driving
    3. It is highly likely a person will be required to install the IID upon the DMV granting the application for a critical needs license.

 

Instead of installing an IID, may a person “sit out” during the suspension period? What if a person does not own a vehicle?

The Department of Motor Vehicles allows ONLY for 1st DUI offenders to “opt-out” of putting the IID in his/her vehicle; however, the first 30 days after a person is convictied of a DUI the person is unable to legally drive.  After that time, a person may obtain a restricted license for 11 months upon showing proof to the DMV enrollment in a DMV-approved alcohol education class, proof of insurance, and the payment of a license-reissuance fee. This type of restricted license allows a person to only drive to and from work and to and from a DMV-approved alcohol program.

On a 2nd DUI (or more) conviction, the law requires a to install the IID for the specified time frame (which is shown above). A person can request and be granted an exemption from installing the IID for not having a vehicle registered to him/her; however, he/she will not be legally able to drive any vehicle during that time frame.  The DMV will require the installation of the IID upon requesting a restricted license.

 

Driving a company vehicle

An individual may drive a company vehicle without the IID being installed; however, one must receive approval from the DMV. The Department of Motor Vehicles has a form which must be signed by the employer which indicates that the employer is aware of the employee’s restricted license status, and despite such, permits the person to drive the company vehicle. This does not avoid any requirement for an individual to install an IID on his/her personal vehicle.

 

 

Pretrial Military Diversion

Yesterday Governor Jerry Brown for the State of California signed into law ground-breaking Senate Bill SB-725.  This bill revises Penal Code Section 1001.80 to state that military veterans are eligible for pretrial military diversion when faced with misdemeanor criminal charges of VC 23152 and VC 23153 in court.  What this means is that a person who can show that he/she 1) was a member of the U.S. Military and 2) may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder (PTSD), substance abuse, or mental health problems as a result of his/her service in the military; that individual is eligible to apply for pretrial military diversion.  Although the Court still has the discretion to determine if person is suitable for this relief, if the person is granted pretrial military diversion he/she has the ability to have the misdemeanor criminal charge of DUI dismissed. The person must complete a specific type of program, not be arrested or convicted of any charge, and obey any other terms of the pretrial diversion granted by the judge in order to ultimately have the case dismissed.

A 29-year-old Veteran of the Air Force served for 4 years and 2 months where he was deployed overseas on several occasions. Upon his honorable discharge from active duty, he realized that his alcohol use began during and following his military service as a means of coping with what was later diagnosed and Post-Traumatic Stress Disorder (‘PTSD”.)

During his service with the military, he received over FIFTEEN awards, decorations, and state awards; including the Air Force Commendation Medal, Air Force Achievement Medal, Meritorious Unit Award, AF Good Conduct Medal, Global War on Terrorism Expeditionary Medal, Air and Space Campaign Medal, Nuclear Deterrence Operations Service Medal, and the California Good Conduct Medal.  Clearly, this young man devoted years of his life to serve our country and defend it against its enemies.  He excelled in this area, which resulted in him assisting in the saving of countless lives across the globe.

I filed on his behalf in court a motion for pretrial diversion under Penal Code Section 1001.80 in the hopes that the Judge would find that he was both eligible and suitable for this relief.  Unfortunately, the Court felt that the law excluded individuals charged with misdemeanor DUIcases from being granted pretrial diversion.  When I informed the Judge that Senate Bill 725 was passed by Congress and making its way to the Governor for his signature to enact it into law, she was unaware that such a Bill existed.  The prosecutor vehemently objected to my motion and indicated that no such law should pass. Although my motion was denied last month, the Judge indicated that if the Governor did sign the law, she would grant our request for this relief.

I look forward to August 22nd when I will present her with the revisions of Penal Code Section 1001.80, which now makes misdemeanor DUI cases part of the list of eligible offenses for which Judges can grant veterans pretrial military diversion. To the prosecutor’s dismay, I have no doubt the Judge will grant our request.