Regardless of what occurs in the DUI criminal proceedings, state law provides that the Department of Motor Vehicles may take administrative action (suspension) against a driver’s privilege to operate a motor vehicle. The criminal case and the DMV action are separate and different matters. In plain language, this means that even if your DUI case is reduced to a lower charge, or even dismissed by the prosecutor, the DMV retains the authority to suspend driving privileges! The length of suspension will depend on the driver’s driving history record (discussed below).
10-Day Deadline to Request APS Hearing
Current law also provides that any driver arrested for DUI is entitled to an administrative per se (APS) hearing before any suspension is imposed on a driver’s driving privileges. The burden is on the driver, however, to request such a hearing within 10 days of being arrested, by contacting the DMV. Practically speaking, the arresting officer should provide the driver with written notice of this right to a hearing, at the time the driver is arrested (in the event the driver was not served with this written notice, the DMV will mail the driver a form letter advising of the potential suspension and rights involved).
Temporary License and Stay Of Action
The notice will also inform the driver that he/she has temporary driving privileges for 30 days from the time of the arrest (even if a hearing is not requested). If a hearing is timely requested by the driver, and the date scheduled for the hearing is beyond the 30 day temporary license, the driver is entitled to and may request a further extension of his/her driving privileges until the date of the APS hearing, called a “stay of action”.
If the driver fails to contact the DMV within the 10 days, then the DMV will impose a suspension upon the driving record immediately after the temporary license expires. The driver will not be able to drive legally until this suspension is cured by the passage of time and some action taken on the part of the driver (discussed below). If the driver is caught driving at a later date on a suspended driver’s license, the driver risks receiving at minimum, the impound of his/her car and a citation for driving upon a suspended license (Vehicle Code section 14601.5 or 14601.2(a)). Both of these violations are misdemeanors and can subject the violator to further probation, fines and jail (up to six months).
The APS Hearing
At the APS hearing (can be done either in-person at the DMV office, or by telephone), the following issues will be determined:
- did the arresting officer have probable cause to believe the driver was driving under the influence?
- did the officer have lawful cause to place the driver under the arrest?
- was the driver driving with a blood alcohol concentration of .08% or greater?
If the DMV hearing officer determines, after a consideration of all the evidence presented by the DMV and Respondent (the driver), that each of the issues was proven, then he/she will notify the driver of the imposition of a suspension. The evidence may involve the introduction of the police report, and/or having the officer present to testify under oath. The attorney will then have an opportunity to introduce relevant evidence on behalf of the client, to cross-examine the officer (if present), and to have the client, or other witnesses testify (if needed).
If the suspension is imposed, the hearing officer will notify the driver, in writing, by regular U.S. Mail usually within 2 -4 weeks. If there was a “stay of action” previously requested, the driver will be allowed to continue driving until/unless a notice of suspension is received.
Candidly speaking, the APS hearing process is something definitely less than fair because the hearing officer is an employee of the DMV who not only introduces and presents the evidence on behalf of and against the driver, but also is the one who decides what the outcome is going to be! Under these circumstances, it is natural to feel that the hearing officer will be biased against the driver, but with appropriate preparation and an effective/credible argument to present on behalf of the client, an experienced attorney may be able to affect a “set aside” (dismissal) of the suspension.
APS Defenses
Defending a client in an APS hearing is very similar to defending one’s client in the criminal proceedings and the issues/arguments to be made are likewise similar (see Defense Strategies). An important point to emphasize in the APS hearing process is that unlike in the criminal proceedings where the failures/errors of the officer may only go to the “weight” of the evidence”, in a APS hearing, these same failures/errors will actually be “fatal” to the DMV’s ability to suspend one’s driving privileges. In many cases, a hearing officer recognizing, or being shown by the attorney, the existence of a serious or even technical flaw in the case, will often have no problem issuing a “set aside” of the suspension.
Practical Note: I have had hearing officers share with me immediately at the conclusion of an APS hearing that they intend to “set aside” the suspension when the issues are so clear in favor of a client retaining his/her driving privileges. Thus, an attorney maintaining positive relationships with hearing officers are just as important and valuable as his/her relationships with local prosecutors
Length of DMV License Suspension & IID Installation (Senate Bill 1046)
1st Offense (and assuming completion of a chemical test and over age 21)
- 4 month suspension, but after a 30-day suspension, may obtain restricted license for 5 months (to and from work, and in the course of employment) with following requirements
- provide DMV with proof of enrollment in first offender alcohol school program
- file proof of financial responsibility (SR-22)
- pay $125 DMV re-issue fee
- or, if IID is installed for six months, then driver can get restricted license without any suspension
2nd Offense (and assuming completion of a chemical test and over age 21)
- 2-year suspension, but after 1 year of suspension may obtain restricted license for 12 months (to and from work, and in the course of employment) with following requirements
- provide DMV with proof of enrollments in 18-month alcohol school program
- file proof of financial responsibility (SR-22)
- pay $125 DMV re-issue fee
- or, if IID is installed for one year, then driver can get restricted license without any suspension
3rd Offense (and assuming completion of a chemical test and over age 21)
- 3-year suspension, but after 18 months of suspension, may obtain restricted license for 12 months (to and from work, and in the course of employment) with following requirements
- provide DMV with proof of enrollments in 18-month alcohol school program
- file proof of financial responsibility (SR-22)
- pay $125 DMV re-issue fee
- or, if IID is installed for two years, then driver can get restricted license without any suspension
4th Offense (and assuming completion of a chemical test and over age 21)
- 4-year suspension, but after 2 years of suspension, may obtain restricted license for 2 years (to and from work, and in the course of employment) with following requirements
- provide DMV with proof of enrollments in 18-month alcohol school program
- file proof of financial responsibility (SR-22)
- pay $125 DMV re-issue fee
- or, if IID is installed for a predetermined number of years, then driver can get restricted license