California DMV License Suspension
When a driver is arrested for DUI in California a choice is given to either perform blood or breath alcohol test. A driver’s license can be immediately confiscated by police if:
- A breath test indicates a .08% blood alcohol level-or-more.
- The individual refuses to submit to chemical testing (unless it is an out-of-state license with documentation from the California DMV).
On a first offense, the license will be suspended for four-months. This can be reduced to one-month followed by five-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, then the suspension is for one-year. No work restriction is possible. A second offense within ten years carries a one-year suspension or two-years if a refusal. For a discussion on California’s ignition interlock laws, including information on how obtain a restricted license, see California Ignition Interlock Requirements.
The individual or their DUI attorney has ten days 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").
DMV License Suspension Hearing:
It is strongly recommended that a DMV suspension hearing be requested.
NOTE: It is CRITICAL that the DMV be contacted by the individual’s attorney within ten-calendar days of the arrest. After ten days, the DMV will refuse to provide a hearing and the suspension will automatically take effect in thirty days. If unable to find a DUI attorney within the ten-day window, the individual should contact the local DMV Driver Safety Office. 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.
The Hearing Officer:
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 as the prosecutor. Note: The hearing officer can rule on their own objections. The hearing is conducted as a miniature trial, without a jury, with different rules of evidence. The defense, in this case, can be more technical than in a formal court hearing and can be filled with procedural and bureaucratic errors; often 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 ill-advised to attempt to represent oneself. Note: Public defenders are unavailable Because suspensions are not criminal in nature. Legal representation from a DUI law firm experienced in these matters will greatly increase the chances of the driver’s license reinstatement. The hearing officer usually only produces documents such as: police reports, laboratory reports, and the officer’s sworn-affidavit. There is no Fifth Amendment right at these hearing. An attorney can choose whether or not to have the client at the hearing as the client can be considered a witness by the hearing officer.
Decisions and Suspensions:
A decision is usually takes several days. However, it can take up to several weeks for a decision to be made. Decisions can be appealed to the DMV in Sacramento and/or to the courts by filing a “writ”. Note: An Administrative Per Se (APS) suspension is based upon California’s "implied consent" laws: any person driving in this state is “presumed” to impliedly consent to chemical testing if he is suspected of drunk driving. 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.