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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Traffic Law
Satisfied Customers: 111468
Experience:  Attorney with over 24 years of law and traffic law
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Not a Duplicate. A friend of mine was stopped on 3/22/09 for

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Not a Duplicate. A friend of mine was stopped on 3/22/09 for 23152 (E) VC driving under the influence of a drug by way of a blood test which showed he had no alcohol in his blood. However, not realizing there was a difference he plead guilty to driving under the influence of alcohol 23152 (A) VC on 02/19/10. He has received a letter from the DMV stating he has to install an IID device which is ridiculous because he never had any alcohol related offenses ever. In addition, it states the conviction had to have occurred on or after July 1 2010 and in one of the four cities which also did not occur he received the conviction in Contra Costa for the wrong offense. Is there anything he can do about proving he was charged with the wrong crime. Or will the installer find that out when he calls whom ever it is he has to call prior to installing the device?

Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.

Unfortunately, once he pleaded guilty, he waived his rights to appeal. Furthermore, he had 1 year to file his motion for post conviction relief claiming they had the wrong charge, but quite honestly if he had no drugs in his blood test they could not have him plead guilty to that charge and would have had to have amend it. He can actually do better appealing the administrative action with DMV by filing an appeal of the IID arguing that so much time has passed that the requirement should now be waived. In most cases the DMV is more likely to waive the requirement upon proof that they listed the wrong charge based on the original charge, but as far as getting the conviction removed now that is too late.


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Customer: replied 28 days ago.
Can you tell me how to do this appeal and shouldn't he be able to use the fact that he was was arrested prior to the July 1st 2010 date the program was implemented and that he was not arrested in one of the four pilot counties either?He was arrested on Feb 19th 2010 and that program did not start until July 1 2010 and he was not arrested in a pilot county?
Answer: The pilot program includes: Alameda, Los Angeles, Sacramento, and
Tulare Counties.
5. Question: How do I know if I need to install an IID?
Answer: 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. The notice provides you with information about the IID pilot program
and driver license reinstatement requirements.7. Question: My DUI violation occurred in Los Angeles County on April 1, 2010;
however, I was not convicted until July 15, 2010. Will I be required to install an
IID?
Answer: No. Only DUI violations occurring on or after July 1, 2010, are subject
to the new law.
Thank you for your reply.

If he was CONVICTED before the effective date of the law, then the IID should not be applied. The CONVICTION date is the date that matters, not the arrest date

As far as the appeal, that is beyond the scope of this question and would require another question, but I can say he really should have an attorney to file the appeal with DMV and represent him, because the appeal will require some legal case law research that is beyond what we can do here.
Customer: replied 28 days ago.
He was convicted after but he still was not in one of the pilot counties and as far as the wrong charge goes I guess it was the only charge at that time. I spoke with a public defender office about it. He said, in 2010 they did not have two separate charges for drugs and alcohol. In Contra Costa they have people like my friend plead guilty to driving without a license instead of on a suspended to avoid the interlock device. He seemed to think we should get a legal aid attorney to file a motion or some kind of emergency order because the judge failed to advise him that this would happen and he was not represented. I just don't understand how this happened in the first place because according to the DMV web site he had to be arrested in one of the four pilot counties and he wasn't. The original offense was in Contra Costa and the subsequent driving on a suspended was in San Joaquin. I cannot find a free attorney in Stockton and by the time we pay for one it seems like he would be better off just paying to get it installed as stupid as it would be for someone that does not drink. Do you know if a legal aid attorney in Contra Costa County could represent him on the second charge in San Joaquin because he said there is one that's specializing in this kind of stuff? Do we need an attorney to file a motion to take back a plea because he was not informed correctly by the judge in Stockton? I wonder if writing a letter to the enforcement department at the DMV and attaching the two convictions to it would help?
Thank you for your reply.

He will need to start filing an appeal to DMV through their administrative appeal process, so he will need a local attorney. Then if DMV denies him in the administrative hearing then he can go to court. The problem is there really are not as many "free attorneys" as most people wish. The only place you can go look would be the local legal aid office, but if they have nobody his only recourse is going to be representing himself or paying a local attorney for the appeal.
Customer: replied 27 days ago.
If he wins with the DMV will they pay for his attorney by any chance. The DMV is blaming the court and the court is blaming the DMV is there anyway to tell which one of them is causing this issue. The notice for the interlock came from the DMV.
No I am afraid even if he wins they do not pay for his attorney. His attorney's fees are his liability even if he does win his case.

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