California has a law requiring the Department of Motor Vehicles (DMV) to immediately suspend the driver’s license of persons arrested for driving with a blood alcohol concentration (BAC) of .08% or more, or who refuse a chemical test upon arrest.
This DMV administrative action against your driver’s license is independent of any criminal penalties imposed in court for conviction of the driving-under-the-influence (DUI) offense. If you are under age 21 and are caught driving with any a BAC of .01% or more as measured by a preliminary alcohol screening test, or if you refuse or fail to complete the test.
If you have a valid driver’s license when you are arrested or detained as applicable under the under age 21/.01% BAC law, your driver’s license is immediately confiscated and the police officer serves you with an order of suspension or revocation. The police officer will issue you a temporary, paper license on the spot. This temporary license is called an Administrative Per Se driver’s license. This license is good for only 30 days and is intended to provide you with sufficient time to challenge the suspension through a DMV administrative review. At the end of the 30 days, the suspension/revocation action goes into effect. If the officer does not serve you with an order of suspension/revocation, the DMV will mail one to you.
The DMV automatically conducts an administrative review which may include an examination of the officer’s sworn report and relevant documents.
If the review shows there is no basis for the suspension/revocation, the DMV will set aside the suspension or revocation. The DMV will notify you in writing only if the suspension/revocation is set aside.
If you or your attorney or both of you wish to be present for the administrative review, you or your attorney has only 10 calendar days after your arrest to call the DMV’s Driver Safety Office to demand a hearing. If you fail to request a hearing within the 10 day period, you lose the right to a hearing.
Often the DMV is unable to schedule a hearing before the 30-day temporary license expires. In that event, you or your lawyer should demand an extension (called a stay) of the 30-day temporary license until the hearing occurs and a decision reached.
The DMV administrative hearing is conducted somewhat like a miniature trial. However, there is no jury, the rules of evidence are different, and a hearing officer conducts the hearing rather than a judge. The hearing officer is an employee of the DMV and acts as almost like both the “prosecutor” and the judge in a criminal trial.
You can offer testimony and so can the hearing officer. For example, the hearing officer can call the arresting officer to testify at the hearing. But normally, the hearing officer is allowed to rely on documents, such as police reports, laboratory reports and the officer’s sworn affidavit. You have no right against self-incrimination at a DMV administrative hearing, so for strategic reasons, if you are represented by an attorney, the attorney may choose not to have you be present for the hearing so that you cannot be compelled to testify by the hearing officer.
After the hearing, a decision is usually not mailed for days or even weeks after the hearing. If the suspension is upheld, the decision can be appealed to the DMV in Sacramento and/or to the courts by filing a writ.
The DMV hearing is an administrative proceeding regarding your driving privilege and the circumstances surrounding the arrest, not whether you are innocent or guilty of a criminal act.
In fact, neither a plea to a reduced offense (for example, reckless driving) nor even a dismissal of criminal charges is a defense to an administrative suspension. The only court proceedings that will have any impact on the DMV is an acquittal or finding of innocence on the .08% charge (the DMV is unconcerned about the second charge of DUI).
Also, winning at the DMV hearing has no effect on the criminal proceedings.
At the DMV administrative hearing, only the following issues will be discussed:
If you took a blood or breath or (if applicable) a urine test:
If you refused or failed to complete a blood, breath test, or (if applicable) a urine test:
Because of the complex nature of these administrative hearings and the fact that there is not an independent judge present to level the playing field, it is not a good idea to try to represent yourself at one of these hearings. Remember, these hearings are administrative, not criminal proceedings, so you are not entitled to a public defender.
A lawyer is more likely to know the rules of these hearings and the grounds on which administrative suspensions are most commonly overturned.
If your driver’s license is suspended after the DMV review/administrative hearing, it is possible to apply to the DMV for a restricted license.
A typical first offense suspension is six months, but after serving a 30 day “hard” suspension, you can apply to the DMV for a restricted license that permits you to drive to, from and during work and/or to and from the DUI education program. When applying for a restricted license, you must show proof of insurance to the DMV, pay a license reissue fee and show that you have enrolled in or completed a DUI education program.