If a driver is arrested for DUI in California, they will have the choice of taking a blood or breath alcohol test.
Police can immediately confiscate a driver’s license in the following cases:
A breath test shows results of a .08% blood alcohol level or higher.
If the driver refuses to take a chemical test (unless the driver has an out-of-state license with documentation from the California DMV).
For a first offense, an individual’s license will be suspended for four months. However, this suspension can be decreased to a one-month period followed by five months of work restriction. To get this reduction, an individual must file proof of enrollment in a DUI school and show proof of insurance (SR-22 form).
If an individual refused to submit to chemical testing, then the license suspension lasts for one year. No work restrictions are available in this case. For a second offense in a ten-year period, the license suspension will be for one year—two years if the individual also refused a chemical test. For more information on California’s ignition interlock laws, and how to obtain a restricted license, visit California Ignition Interlock Requirements.
After an individual’s arrest date, they have ten days to call (or have their DUI attorney call) the Drivers Safety Office of the Department of Motor Vehicles to contest the Administrative License Suspension (“ALS”) at an administrative hearing.
The Law Offices of Taylor & Taylor cannot recommend strongly enough that the individual request a DMV suspension hearing.
It is imperative that the individual’s attorney contact the DMV within ten calendar days of the arrest. After this ten-day period elapses, the DMV refuses to provide a hearing and the suspension will take effect in thirty days by default. If the individual is not able to hire a DUI attorney in that ten-day period, the individual should contact their local DMV Driver Safety Office. In Southern California, these main offices are in Orange, El Segundo, Commerce, San Bernardino, Oxnard, and San Diego.
Usually, due to excessive workload, the DMV is not able to schedule a hearing before the thirty-day temporary license expires. In this case, the DUI attorney should demand (and will receive) an extension of this temporary license, known as a “stay,” until the hearing occurs and a decision is made at that point.
A hearing officer, who is a DMV employee, will conduct the DMV license suspension hearing. The hearing officer is not legally trained but will act as both the judge and the prosecutor at the administrative hearing.
Please note that the hearing officer may rule on their own objections. The hearing is run like a miniature trial without a jury and with different rules governing evidence.
In this case, the defense can be more technical than a formal court hearing and often is subject to both procedural and bureaucratic mistakes. These errors are often grounds for a “set-aside” of the administrative license suspension.
The lack of an independent judge and the highly technical quality of this hearing make it critical that the individual have their attorney there to represent them.
It should be noted that since suspensions are not criminal, public defenders are not available for individuals in this case. A law firm specializing in DUI defense will provide the necessary legal representation to significantly increase the likelihood of the driver’s license being reinstated.
Commonly, the hearing officer only produces the following documents: laboratory reports, police reports, and the arresting officer’s sworn-affidavit. These hearings do not provide a Fifth Amendment right. It is the attorney’s decision to have the client present at the hearing. It may be advantageous that the client not be present because a hearing officer can consider the client to be a witness.
While a decision typically takes several days, it can span up to several weeks. To appeal a decision, contact the DMV in Sacramento or file a “writ” with the courts.
Please note that an Administrative Per Se (APS) suspension is allowable due to California’s “implied consent” laws, which state that any person driving in this state is “presumed” to have given implied consent to chemical testing if he is suspected of drunk driving.
In addition, pleas to a reduced offense or a dismissal of criminal charges are not defenses to APS. (A plea to a reduced offense would be something such as “alcohol-involved reckless driving” or “wet reckless.”) The only court proceedings that influence the DMV is the finding of innocence on the .08% BAC charge or an acquittal. Furthermore, a “set-aside” in the DMV hearing does not affect the criminal proceedings whatsoever.
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