Must I install a breathalyzer (IID) in my car?


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Must I install a breathalyzer (IID) in my car?

Must I install a breathalyzer (IID) in my car?

Ignition Interlock Device IID

Must I install a breathalyzer (IID) in my car in my DUI case? An ignition interlock device needs to be installed in your case under California law in certain cases. Learn from our Orange County DUI Lawyers when you will need to have a breathalyzer installed in your vehicle for the DMV or for the court.

What is an ignition interlock device (IID)?

An ignition interlock device, which is sometimes called a breath alcohol ignition interlock device (IID and BAIID) is a breathalyzer for your vehicle. It requires the driver to blow into a mouthpiece on the device before starting the vehicle. With some devices, you are also periodically required to blow in the vehicle while it is in motion at certain intervals.

When do I need an IID installed?

Must I install a breathalyzer (IID) in my car as part of my DUI case? There are only two situations where the IID needs to be installed in your car:

  1. You have a first time DUI in one of the four specific “DUI Pilot Program” counties in California; or
  2. You have a multiple offense DUI (a second DUI or higher).

Ignition Interlock IID Requirements for a “DUI Pilot Program” county.

The four “DUI pilot program” counties in California are as follows:

  1. Los Angeles County;
  2. Alameda County;
  3. Sacramento County; and
  4. Tulare County.

In those four counties only, a pilot experiment is going on over a period of several years.  That experiment is to see, statistically, if installing a breathalyzer (IID) in the cars of first time offenders, ends up reducing the number of second time driving under the influence (DUI) cases and provide DMV with data that can be used to evaluate the effectiveness of an IID in reducing DUIs overall.

That IID pilot program requires all individuals convicted of a DUI in one of the four California counties above to install an IID on every vehicle they own or drive, provide DMV with a Department of Motor Vehicles Ordered Verification of Ignition Interlock (DL 924) form, pay a $45 administrative service fee (ASF), and meet all other reinstatement requirements before DMV can reinstate, reissue, or restrict their drivers license.

The DMV, not the Court, Requires the IID.

Note that this is not a court requirement, even though it is triggered on being found guilty of DUI, or entering a plea of guilty to DUI under a plea bargain in court.  The court may not mention it, as it is a DMV requirement, and after a conviction, the DMV will notify you via mail of the need to install a breathalyzer (IID) in your car.

After a court conviction, the DMV automatically mails an Order of Suspension or Revocation notice along with a DUI IID Insert or an Order of Installment of an Ignition Interlock Device when the department receives notification of a conviction for a DUI violation under California Vehicle Code (CVC) §§23152 or 23153 or Penal Code (PC) §191.5(b) which occurred in one of the pilot counties on or after July 1, 2010. Note that pleading to a wet reckless does not require you to have an IID installed in your vehicle.

How long do I have to have the IID installed for?

If you are a standard first-time DUI offender in one of the counties above, you must install the ignition interlock device for five (5) months. If, however you are convicted of Vehicle Code 23153 VC DUI causing injury, you must install the device for one year.

Once an IID is installed, do I have to do anything further?

Yes – you must arrange service with the installer for each of the vehicles with an IID at least once every 60 days. When the vehicle is serviced, the installer will recalibrate and monitors the operation of the device. Under CVC §23700, an IID installer must notify DMV if the device is removed or if there is evidence that you attempted to remove, bypass, or tamper with the device; or if you fail three or more times to comply with any requirements for the maintenance or calibration of the IID.

An IID and a Second time DUI or a Third time DUI

Must I install a breathalyzer (IID) in my car for a second time DUI?

With a second time DUI, you are not required to install an IID, but it helps you.

While the DMV APS suspension is 1 year if there is 1 prior DUI on the record within 10 years, if you submitted to a chemical test and show proof of installation of the ignition interlock device(“IID”), you can obtain a restricted license after 90 days. This restricted license allows you to drive anywhere as long as it’s in a car with an IID installed. This is required for 12 months.

Unfortunately, drivers facing a second time DUI offense in California who also refused to submit to a chemical test will face a much tougher punishment. These individuals face a two year license revocation and are not entitled to a restricted license during any part of the suspension period.

You should note that there is no way around the 12-month ignition interlock device (IID) requirement. Therefore we always recommend to our clients that you should install it immediately so that you can get the restricted license on the 91st day after your suspension initially began.

Must I install a breathalyzer (IID) in my car for a Third Time DUI?

Do I need to install a car breathalyzer (IID) in my DUI case as a third time offender? If you are convicted of a third offense DUI, you must install an IID on any car you own or operate for a four-year period. If you are convicted of your 3rd DUI in the pilot program counties of Los Angeles, Alameda, Tulare or Sacramento County, IID installation is mandatory. However, in all other counties, installation is at the judge’s discretion.

A court license suspension from a DUI is 3 years when there are already 2 prior DUI or wet reckless convictions within 10 years.

On the other hand, the DMV’s APS suspension of your license is only 1 year if there is 2 prior DUIs on the record within 10 years. However, after 180 days, if you submitted to a chemical test and show proof of installation of an ignition interlock device (“IID”), you can obtain a restricted license. This restricted license allows you to drive anywhere as long as it’s in a car with an IID installed. This is required for 24 months.

Unfortunately, drivers facing a third time DUI offense in California who also refused to submit to a chemical test will face a much tougher punishment. These individuals face a three year license revocation and are not entitled to a restricted license during any part of the suspension period.

You should note that there is no way around the 24-month IID requirement, so we always recommend to our clients that you should install it immediately so that you can get the restricted license on the 181st day after your suspension initially began.

Must I install a breathalyzer (IID) in my car?  It depends on the above factors.

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Do you have question about your specific case, or about IID requirements, for our DUI Lawyers?  Contact us today. 


California DUIs and out of state alcohol classes

California DUIs and out of state alcohol classes

California DUIs and out of state alcohol classes

California DUIs and out of state alcohol classes create a special problem. If you were convicted of a DUI in California, Vehicle Code §23556 requires the court to order the completion of a California alcohol program in the driver’s county of residence or employment.

However, if you move out of state, you have a problem with both the court and the DMV. This article discusses what happens when a California resident, who holds a California driver’s license, and gets a California DUI, moves out of state before completing the required alcohol school.  It is different from the situation where someone from California gets a DUI in another state.  In short, the court will allow an alcohol school in another state, but the DMV will require a California school or alcohol program, or for you to give up your CA driver’s license.

Court DUI Sentences and DUI schools out of county or state:

With the court, the court must specifically authorize, and order as part of your case, an out of county, or out of state, alcohol school.  In general, the court will allow any program that is the equivalent of a first time offender’s program in whatever state you are in, if you have a first-time offense, and a second time offender’s alcohol program if you have a second time DUI case, and so on.  That may mean that you attend a class that is substantially cheaper and less time than California, or more expensive and a longer program than California’s.

The DMV and DUI schools out of county or state:

With the DMV, you have a more difficult problem. So long as you live in California, the California DMV will never accept completion of an alcohol class from another state. The class must be taken in California even if the court accepted an out-of-state program in satisfaction of probation.

You have two options:

  1. Remain in California and complete the alcohol classes, or
  2. Move to another state and waive your “privilege” to drive in California.

Vehicle Code §23558(c)(1) allows the court to revoke probation for failure to complete the program except for good cause. Vehicle Code §13352(a)(2) refers to this Vehicle Code §23538 program, i.e. one in the person’s county of residence or employment, and requires that it be completed before full driving privileges can be returned. Punishment statutes for other drunk driving offenses have similar provisions. Obviously, none of this is possible if the person resides in another state since there are no California licensed drinking driver programs outside the state of California.

Where you must attend DUI schools in California:

Because of that, Health & Safety Code §11837.2(a) indicates that the court may refer persons only to licensed programs. Subject to these provisions, a person is eligible to participate in the program if it is operating in any of the following:

  1. The county where the person is convicted, or
  2. The county where the person resides, or
  3. A county that has an agreement with such person’s county of residence pursuant to Section 11838, or
  4. A county to which the person may request transfer pursuant to subdivision (d).

What do you do if you have a California Driver’s License but live out of state?

The law does not require impossibilities (Civil Code §3531). If a person resides in another state if they cannot attend a licensed California drinking driver program unless they interrupt their lives and move back to California. But with California DUIs and out of state alcohol classes, that rarely happens.

If you have a California DUI and you live out of state now, you may find that your license is suspended by the California DMV and will continue to be suspended until you complete a California alcohol school.

However, that suspension of your driver’s license may prevent you from getting a new driver’s license in another state, as other states that are part of the interstate driver’s compact will obtain the records from the California DMV, and will not issue you a new license in your new state until California lifts the hold.

That creates a driver’s license “Catch-22”.  The solution is to apply to the DMV for an out of state waiver.

Applying for a CA DMV License Waiver

You must take action yourself on this.  Your California DUI attorney, unfortunately, cannot do this for you. If you move out-of-state, you can call DMV Mandatory Actions Unit in Sacramento, California, at (916) 657-6525 and ask for a “1650 waiver packet.”  They will only mail this packet to you, the licensee, at an out-of-state address (you will also have to prove you live out-of-state with a utility bill or such).  This waiver allows out-of-state licensees to obtain a license in another state, by lifting driver’s license holds, and also allows you to drive in California, but does not allow the out-of-state licensee to acquire a California license within 3 years of filing the waiver.

One can only qualify for the 1650 waiver once in a lifetime – a rule that begun in March of 2005.  The 1650 Waiver removes the California hold, assuming an SR22 is also on file with DMV. If you come back to California within 3-years and want your license back, you will have to take the applicable approved California Alcohol school program, or classes. California DUIs and out of state alcohol classes does not work for the DMV lifting the hold.

Contact our DUI defense firm if you need our experience.

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Contact our firm if you are interested in discussing with us what is possible at the DMV or in court.


A win for a DUI client at the DMV

dmv win dui

Case study: How to win the DMV in a DUI case.

We had a win for a DUI client at the DMV, and our law firm is proud to announce we won another client her license back.  A DMV “Set Aside” is what the DMV calls a dismissal of the action pending against a driver’s license.

An actress, who is busy with roles in Los Angeles, called us the morning she was involved in an accident.  The police took her to the hospital, where her blood was drawn.   She was left at the hospital to be rendered care, but she did admit to taking several substances, prescribed medications, that could have put her under the influence.

The  police gave her a citation for driving under the influence/DUI, and marked it as a detention only, meaning that she was cited, and that it was up to the prosecutor’s office whether or not there was a case filed, and if so, what the court date would be.  As of today’s date, there are no Los Angeles DUI charges pending against her.

DMV and a DUITo make things more complicated, the actress and client had an out of state license.  A DMV hearing was promptly requested, and we noted that the licensee had never been served the temporary license.

The DMV took steps to correct that by serving a new temporary license, and notice, via registered mail, giving the licensee a new 14 day time period to request a hearing, and we again scheduled a new hearing.

The DMV sent discovery, or a copy of the police reports, which our law firm reviewed thoroughly, line by line.  When the blood testing came in, we noted the presence of several substances, or more specifically, the metabolites, showing absorption and metabolism of specific categories of substances, that were illegal to drive under.  The law prohibits and makes illegal entire categories of substances in your system if you are operating a motor vehicle.

DUI California DMV

The DMV, however, has strict laws that they have to adhere to as well.  One of those rules require that there be a finding, with admissible evidence, of each of the issues at the hearing.

In turn, one of those issues is whether or not the person was driving with above a .08% blood alcohol level.  When we located and presented the hospital blood test, which was not included from the DMV, it was shown to the DMV hearing officer.

As a result, the DMV hearing officer agreed with our position, and our client’s license suspension hearing was canceled, or set aside, and her license was returned to her, and her driving privileges were not affected. That won the DMV case, to the satisfaction of the client, who got her license back and all driving privileges reinstated.

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Contact us today. If you have questions about a DMV hearing from a DUI, call our firm anytime at (877) 568-2977, or use our contact the firm page.


Is a DUI expunged automatically after 10 years?

Is a DUI expunged automatically after 10 years?

Criminal Conviction for DUI
Our Orange County DUI Lawyers received the following question about whether or not after 10 years, a DUI expunged automatically:

Q.  My last DUI was 15 yrs ago. The court did not revoke my license, but the DMV did & in order to get my license back, the DMV required I enroll in & complete the 18-month multiple offender program & get an SR-22. I was eligible for a RESTRICTED license allowing me to drive to & from work & school, etc., provided I was enrolled in & in good standing with the 18-month program. I did get started on the program but 4 months in, I was distracted by personal matters & took a leave of absence & never went back. I did not apply for the restricted license during those 4 months.

I just learned California expunges DUI convictions after 10 years but understand this has nothing to do with the DMV decision. Is there also a time frame when the conditions set forth by the DMV to get my license also go away?
Answer:  Unfortunately, this is a common misunderstanding – that there is an automatic expungement of a DUI conviction after 10 years. While a DUI cannot be used as a prior once 10 years have passed, that does not mean that it disappears from a criminal record – in fact, if you ran a criminal record, you will find it is still there, and would be there for life until you do an expungement.
A DMV driver’s record shows all actions, for life, like criminal records. Unlike a criminal conviction, the driving record does not have a procedure for expungement – the DMV requires that you follow their procedures to get a license back, no matter how much time has passed, to get whatever you need done and your license reinstated.
The alternative is to give up driving privileges in California, and have a license issued in another state, for which California can issue a waiver of any driving privileges, or any license hold that might cause you a problem in another state.
DMV Information and Penalties for a DUI
Questions about a DUI expungement?  Contact our firm and our Orange County DUI Expert, Robert Miller for advice today.

DMV decisions in a DUI case

DMV decisions in a DUI case

One of the questions we get frequently, especially for those that are awaiting a decision following a DMV hearing for a DUI, is, “how long does the DMV have to make a decision?”

California DMV Admin Per Se

The reason that is a common question is that DMV hearing officers rarely make the decisions after a driver’s license hearing from a DUI at the hearing itself.  Although they have the power and ability to do so, and they sometimes will make a ruling, in most cases, they issue a written ruling sometime after the hearing.

The DMV hearing officer manual requires them to issue a written ruling in all cases — whether there is a set aside (a decision to dismiss any action against a California driver’s license), or a decision suspending driving privileges.

The DMV rarely grants set asides immediately, but luckily for most decisions, the rate of a set-aside, where the licensee gets their license back, that rate has been steadily going up, for a number of reasons, as the chart below shows:

DMV Wins in a DUI

The answer to the question, “how long does the DMV have for decisions in a DUI case”, is contained in Government Code section 11517 (a) (3), which states, in part: “The agency shall issue its decision within 100 days of the submission of the case.”  

Often, DMV hearing officers decide cases wrongfully, against both the requirements of the Evidence Code and against case law in favor of the driver.  The DMV is required to suspend a license if the three issues in a DMV hearing are found to be supported by admissible evidence and issue a set-aside, canceling the suspension from a DUI, when the evidence is not sufficient.

Our law firm has had many Orange County and Los Angeles cases where we have either won a DMV dismissal in the DUI case or have won against the DMV on appeal.

Use our Contact the Firm link if you need assistance with a DMV hearing matter.