The DMV and license suspension relating to your DUI
DRIVER’S LICENSE SUSPENSION – DMV HEARING Obtaining and retaining a license to drive/operate a motor vehicle in California is a privilege, not a right. This means that it is possible to lose that privilege as a penalty for committing various offenses, such as driving under the influence (“DUI”). When that happens, many times the offender will want to schedule an administrative hearing with the DMV to request a restricted license that will allow the offender to drive to/from work as well as to any court-mandated drinking driver program. You can have a private attorney represent you at these hearings, and it may be in your best interest to do so because an attorney may be able to help get your privileges restored, help you avoid jail time and/or a felony conviction, among other things. Note that a public defender will not be appointed to represent you at these hearings, so if you do want such legal representation, you will have to hire a private attorney. NOTE: Depending on which statute a person is convicted under, e.g., California Vehicle Code section 23152, 23153, etc., has an impact on whether the offender may be entitled to apply for/receive a restricted license. Some statutes do not allow for such a thing at all, depending on various fact-specific circumstances.
If you are arrested for a DUI, it is important to discuss all of these details with an experienced defense attorney who can further explain your rights to you, including whether you may face jail/prison time, how long your driving privileges may be suspended/revoked, whether/when you may be eligible to apply for a restricted license, etc. In light of this paragraph, note that the details that follow may not apply to you/your case and that such information is being provided merely to show some of the ways that a DUI can impact your life, especially if you do not have an experienced attorney to represent you along the way.
Commercial Driver’s License Holders Those who holder a commercial driver’s license, who were operating a commercial vehicle at the time of the incident, may not be eligible for the restricted license that is discussed in this section. Further, they may be able to be arrested for a DUI when their BAC is lower (e.g., .04%) than someone who does not hold a commercial driver’s license/is not operating a commercial vehicle. An experienced attorney can give you further guidance on your rights and potential penalties if you find yourself in this situation. Contact us if you would like to schedule a consultation. Out-Of-State Driver’s License Holders The law varies if the offender has an out-of-state driver’s license rather than a California one. While the arresting officer cannot typically confiscate your driver’s license, he/she can still issue you a suspension of your privilege to drive in California. Further, the California DMV may notify the DMV in your state of residence of your DUI arrest, so that you may face further penalties from your state of residence. An experienced attorney can give you further guidance on your rights and potential penalties if you find yourself in this situation. Contact us if you would like to schedule a consultation. DRIVING PRIVILEGE SUSPENSION UPON ARREST FOR DUI After a DUI arrest, the arresting officer will confiscate your valid California driver’s license (they cannot confiscate an out of state license) and personally serve you with a 30-day temporary license (or, if he/she fails to do so, the DMV will serve you with it); basically, an Administrative Per Se (APS) Suspension, also known as the “stop and snatch” law because it promptly removes drunk drivers from the roads. Note that if your driving privilege was currently suspended/revoked at the time of this arrest, this newly-issued temporary license does not grant you a driving privilege that you had already lost. Subsequently, the arresting officer will forward the following to the DMV: your confiscated driver’s license, the APS Order, breathalyzer test information, police report, copy of any citation that was issued, and the arresting officer’s sworn statement about the details of the incident. This information will then undergo an administrative review by the DMV, which is supposed to be completed prior to the date when the APS suspension order becomes effective. The DMV is supposed to conduct this initial administrative review within 30 days, and should cover the following issues: (1) Whether the peace officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23140, 23152, or 23153. (2) Whether the person was placed under arrest. (3) Whether the person refused to submit to, or did not complete, the test or tests after being requested by a peace officer. (4) Whether, except for a person described in subdivision (a) of Section 23612 who is incapable of refusing, the person had been told that his or her driving privilege would be suspended or revoked if he or she refused to submit to, or did not complete, the test or tests.
If the offender timely requests a DMV hearing, then the above administrative review is not required as such things will be reviewed at the hearing. If you want a DMV hearing before the effective date of the order of suspension/revocation of your license, you must make your request within 10 days from the date you received the notice of the order of suspension/revocation. This hearing is an Administrative Hearing, and while the DMV does not determine one’s guilt or innocence, like in a criminal proceeding, the offender will have the opportunity to present relevant evidence to argue as to why he/she should be issued a restricted license until his/her full driving privileges are fully restored.
Note that a request for an administrative hearing will not itself delay the imposition of the suspension/revocation of your license. Grounds to Be Served with an Administrative Per Se Suspension (APS) Order
Driving with any of the following BAC:
0.01% or higher while under 21 years of age
0.01% or higher while on DUI Probation
0.04% or higher in a commercial vehicle
0.08% or higher in any other situation/in general
Refuses to submit to and complete a:
P.A.S. test if under 21
P.A.S. while on DUI probation
Exceptions: When the DMV Will Deny or Revoke a Restricted License
If the offender is arrested for a drunk driving offense subsequent to the current DUI, the DMV will not issue a restricted license.
If the offender withdraws early from the drinking driver program, the DMV may revoke the restricted license and such license will not be restored until the offender completes the drinking driver program.
Common Defenses That May Be Available There may be one or more defenses available to you which could keep you from having your license revoked. These include, but are not limited to:
The arresting officer did not actually see you operating a vehicle while you were intoxicated
The DUI checkpoint was not legal
The officer did not have sufficient probable cause to pull you over/arrest you
The breathalyzer was not operating properly/the reading was a false positive due to a medical condition or diet
The arresting officer did not properly read you your rights as required by law (e.g., rights about automatic license suspension, Miranda rights, etc.)
Flaws and/or material omissions in the police report or officer’s sworn statement
There may be other defenses available as well. Having experienced defense counsel on your side can significantly affect whether you are able to obtain a restricted license, how long your license is suspended/revoked, and/or what penalties are imposed on you. If you would like more information, please contact our office to schedule a consultation. FIRST V. MULTIPLE OFFENSES First Offense A person who is 21 years old or older when the incident occurred, who has not had a previous conviction or APS suspension within the last 10 years preceding the date of the current offense, will face a 6-month license suspension, but, if eligible at all, may be allowed to apply for a restricted license after the 30-day APS suspension. Note that if the court orders a 9-month drinking driver program, then the suspension period will be 10 months. Also, offenders who were between 13-21 at the time of their offense are subject to a 1-year license suspension. Further, having a BAC of .15% or higher may subject the offender to enhanced penalties in sentencing, longer drinking driving program, longer license suspension period, and the court consider this higher BAC when determining whether the offender should get probation, and the terms and conditions of any such probation. Further, with a BAC of at least .20%, or refusal to take a chemical test, the court is required to refer a first-time offender to participate in at least a 9-month/60 hour drinking driver program, as well as making them show proof of financial responsibility (via SR-22 certificate of insurance/financial responsibility) and have no new arrests for drunk driving. Regardless, first-time offenders are eligible to apply for a restricted license that would allow them to drive to/from work, within the scope of work, as well as to/from the drinking driver program. In order to qualify, the offender must be enrolled in a first offender program for 3-9 months, file the completed SR-22 certificate of insurance/financial responsibility, and pay all of the fees for reinstatement and restriction. (Note: Commercial driver’s license holders who were operating a commercial vehicle at the time of the incident are not eligible for this restricted license). Second Offense When an offender is convicted for a second DUI, their driving privilege will be suspended for two years. Further, if the offender receives the maximum one-year jail sentence from the trial court, that court may also order that the license suspension not begin until the offender completes his/her jail sentence. A second-time offender, if eligible at all, will not be eligible to apply for a restricted license for at least 90 days, and certain other conditions may also be imposed, such as attending a specified number of hours of a drinking driver education program, and/or filing a completed SR-22 certificate of insurance/financial responsibility, before being able to apply for the restricted license. Third Offense When an offender is convicted for a third DUI, their driving privilege will be revoked for three years. Further, if the offender receives the maximum one-year jail sentence from the trial court, that court may also order that the license suspension not begin until the offender completes his/her jail sentence. A third-time offender, if eligible at all, will not be eligible to apply for a restricted license for at least 6 months, such as attending a specified number of hours of a drinking driver education program, and/or filing a completed SR-22 certificate of insurance/financial responsibility, before being able to apply for the restricted license. Subsequent Offenses Subsequent offenses may be deemed felonies, and the prior convictions will be considered sentence enhancements, subjecting the offender to imprisonment in state prison. Further, a conviction for a fourth, or more, DUI subjects the offender to a 4-year revocation of his/her driving privilege. If the offender receives the maximum one-year sentence or state prison from the trial court, that court may also order that the license suspension not begin until the offender completes his/her jail/prison sentence. These offenders may have to wait at least one-year to apply for a restricted license, and certain other conditions may also be imposed, such as attending a specified number of hours of a drinking driver education program, and/or filing a completed SR-22 certificate of insurance/financial responsibility, before being able to apply for the restricted license. EFFECT OF CRIMINAL COURT CASE ON DMV HEARING The DMV is responsible for suspending and/or revoking a person’s driver’s license after a DUI arrest, and courts are also allowed to impose license suspensions separately from those imposed by the DMV under various circumstances. Such suspensions may run concurrently and the total time shall not exceed the longer of the two suspensions/revocation periods, unless the court order lists a “restriction” instead of a suspension/revocation because the former is not required to run concurrently with a DMV imposed suspension/revocation as the latter is. Whether you are convicted/not convicted of the DUI in criminal court may/may not affect the DMV’s determination regarding your license suspension/revocation. If an offender is acquitted in court for an excessive BAC, depending on what statute he was charged under, then any APS suspension that resulted from this same claim may be rescinded once the DMV receives proof of the acquittal. Note, however, that a mere dismissal of the criminal DUI case, or the district attorney’s decision to not file criminal charges, may not rescind the APS suspension. However, the offender may then have the right to request a renewed hearing with the DMV. It is important to discuss with an experienced attorney what your rights and options are, as these will vary depending on the specific facts of your case. Contact our office today to schedule a consultation.
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