When a driver is arrested for DUI in California he is supposed to be given a choice of a blood or breath alcohol test. If (1) a breath test indicates a .08% blood alcohol level or more, or (2) a blood (or, if neither breath nor blood are available, urine) is taken for later analysis, or (3) the individual refuses to submit to chemical testing, his driver’s license is immediately confiscated by the police (unless it is an out-of-state license) and he is issued a document from the California DMV. This paper serves as (1) a formal notice of immediate suspension, (2) a temporary license valid for 30 days and (3) a technical explanation of the law and the DMV procedures involved.
California DMV License Suspension
If this is a first offense, the license will be suspended for 4 months. This can be reduced to 1 month followed by 5 months of work restriction if the individual files proof of enrollment in a DUI school and proof of insurance (the “SR-22” form). If the case involves a refusal to submit to chemical testing, the suspension is for 1 year; no work restriction is possible. A second offense within ten years carries a 1-year suspension, 2 years if a refusal. For a discussion of Californias ignition interlock laws, including information on how to get one to obtain a restricted license, see California Ignition Interlock Requirements.
The individual or his DUI attorney has ten days within which to call the Drivers Safety Office of the Department of Motor Vehicles to contest the suspension at an administrative hearing. This is called the Administrative License Suspension (“ALS”).
It is strongly recommended that a DMV suspension hearing be requested. As comments from our DUI clients indicate, there is a good chance of having the suspension thrown out; the worst thing that can happen is that the same suspension will simply take effect, but later than 30 days. NOTE: It is CRITICAL that the DMV be contacted by the individual’s attorney within 10 calendar days of the arrest. On the 11th day, the DMV will refuse to provide a hearing and the suspension will automatically take effect in 30 days. If you have been unable to find a DUI attorney within the 10-day window, the individual should contact the local DMV Driver Safety Office himself. In Southern California the main offices are located in El Segundo, City of Commerce, City of Orange, San Bernardino, Oxnard and San Diego.
In most cases, due to work overload, the DMV will be unable to provide a hearing before the 30-day temporary license expires. In that event, the lawyer should demand — and will receive — an extension of the temporary license (called a “stay”) until the hearing is provided and a subsequent decision rendered.
This “APS” (Administrative Per Se) suspension is based upon California’s so-called “implied consent” laws: any person driving in this state is “presumed” to impliedly consent to chemical testing if he is suspected of drunk driving. It would seem, however, that there is a “DUI exception to the Constitution”. First, there appears to be a lack of due process and the absence of a presumption of innocence. Second, it would seem to constitute “double jeopardy”: the individual is being charged with a criminal offense and punished (including a license restriction) in court — and then is accused in a separate proceeding and punished again with a license suspension. The courts, however, have used strained logic in concluding that one is criminal and the other administrative — a license suspension is simply an “administrative sanction”, not a “punishment”!
The DMV license suspension hearing is conducted by a hearing officer who is an employee of the DMV. This person, although not legally trained, will act as the “judge” — and also as the prosecutor! He can, for example, rule on his own objections. The hearing is conducted like a miniature trial, but without jury and with somewhat different rules of evidence. The defenses tend to be more technical than in court, with procedural and bureaucratic errors often the grounds for a “set-aside” of the suspension. Because of the technical nature of these hearings and the lack of an independent judge, it is inadvisable to attempt to represent yourself. And because they are not criminal in nature, public defenders are unavailable. Legal representation from a DUI law firm experienced in these matters will greatly increase the changes of the driver’s license being reinstated.
Testimony can be produced by both sides, although the hearing officer usually only produces documents, such as police reports, laboratory reports and the officer’s sworn affidavit. Because there is no Fifth Amendment right at the hearing, the attorney may or may not choose to have the client at the hearing since he can be called by the hearing officer as a witness. A decision is usually not rendered until some days or even weeks after the hearing. If adverse, the decision can be appealed to the DMV in Sacramento and/or to the courts by filing a “writ”.
Note: Neither a plea to a reduced offense (for example, “alcohol-involved reckless driving”, aka “wet reckless”) nor a dismissal of criminal charges is a defense to an APS suspension. The only court proceedings that will have any impact on the DMV is an acquittal or finding of innocence on the .08% charge. Similarly, a “set-aside” in the DMV hearing has no effect on the criminal proceedings.
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