The DMV Administrative License Suspension Program is commonly known as “Admin Per Se” (APS) and was intended to be a law that provided an immediate deterrent to anyone driving a motor vehicle under the influence.
Who is Affected?
The law mandates the DMV to suspend or revoke your driving privilege if you are arrested for driving under the influence of alcohol or a combination of alcohol and drugs (DUI) when you:
- take a chemical (blood, breath or urine*) test that shows a Blood Alcohol Concentration (BAC) level of .08 percent or more, or
- refuse to take or fail to complete a chemical test to determine your BAC level
*NOTE: A urine test is not available unless:
- the officer suspects you were driving under the influence of drugs or a combination of drugs and alcohol, or
- both the blood and breath tests are unavailable, or
- you are a hemophiliac, or
- you are taking an anticoagulant in conjunction with a heart condition.
What Happens to Your Drivers License?
The officer or sheriff will give you an Order of Suspension if you have a valid California driver’s license at the same time he takes away your driver’s license to send to the DMV. The Order of Suspension is your temporary license for 30 days from the date it is issued. At the end of the 30 days the suspension goes into effect. If the officer does not issue an Order of Suspension, the DMV will mail it to you. It is critical your address on your driver’s license is correct as this is where the Order will be sent.
Please note the temporary license does not allow you to drive if there is another DMV- or court-imposed driver’s license action in effect, and the suspension is independent of any action the San Diego Superior Court will take in the criminal case for the DUI.
What Actions does the DMV Take?
The DMV conducts an administrative review that includes an examination of the police, sheriff or CHP report and any other relevant documents. If the admin review shows there is no basis for the suspension of your license, the DMV will set it aside.
What You Do After the Police Encounter
You have 10 days from the receipt of the Order of Suspension to request an Administrative Hearing to show the suspension is not justified. If you retain Spital & Associates within the 10 days, we will request the Administrative Hearing on your behalf. The DMV will conduct a telephonic hearing unless there is a request for an in-person hearing. Please note, the suspension will not be delayed unless you:
- Request a hearing within 10 days from the issue date of the order, and
- The DMV cannot provide a hearing before the effective date of the suspension.
At Spital & Associates, we will demand to see and/or obtain copies of the evidence the DMV will be considering in issuing its decision in sufficient time before the hearing. While you may represent yourself, we recommend you retain legal counsel who is familiar with the applicable laws and the administrative process. Our team of lawyers has handled many hundreds of these hearings, and we include representing you as part of the services we provide once we are retained as your DUI Attorney. Even though you may be present, we generally do not have you testify at the DMV hearing unless your defense is one of “actual innocence” (i.e. you did not have anything to drink at all) because we are mindful that anything you say at the DMV hearing can be used against you in the criminal case.
You should be aware the DMV ordinarily does not arrange to have the officer testify even though they have the right to do so if such testimony is needed. On the other hand, as your DMV attorney we may subpoena the officer and any other witnesses that may help your case if they have relevant testimony or evidence to present. After the DMV Decision, you may file a written request for a Department Review within 15 days, or Superior Court review within 30 days from the date shown on the Notification of Findings and Decision. The DMV charges a nominal fee for this process.
You may Reinstate Your Driver’s License After the DMV hearing if:
- you pay a DMV reissue fee per Vehicle Code §14905
- you file proof of financial responsibility, a California Insurance Proof Certificate [SR 22], $35,000 cash deposit, surety bond, or self insurer certificate under Vehicle Code §16430
- you maintain proof of financial responsibility for three years
What are the DMV Hearing Issues?
The Hearing Officer who conducts the administrative hearing cannot grant you a restricted driver’s license. Only the following issues will be reviewed at the DMV hearing:
A. If you took a chemical test:
- Did the officer have reasonable cause to believe you were driving a motor vehicle under the influence of alcohol in violation of Vehicle Code §§23152 or 23153?
- Were you lawfully arrested for drunk driving?
- Were you driving a motor vehicle with a BAC level of .08 percent or more?
B. If you refused or failed to complete a chemical test:
- Did the officer have reasonable cause to believe you were driving a motor vehicle under the influence in violation of the above sdtatutes?
- Were you lawfully arrested?
- Were you told that your driving privilege would be suspended for one year or revoked for two or three years if you refused to submit to or failed to complete a chemical test?
- Did you refuse to submit to or fail to complete a chemical test after being requested to do so by a peace officer?
How Long Can Your Driver’s License Be Suspended?
A. If you took a chemical test and the results showed a BAC level of .08 percent or more, your driving privilege will be suspended for:
- Four months for the first offense
- One year for more than one DUI offense in 10 years
B. If you refused or failed to complete a chemical test, your driving privilege will be:
- Suspended for one year for the first offense
- Revoked for two years for the second offense in 10 years
- Revoked for three years for 3 or more offenses in 10 years
Are You Eligible for a Restricted License?
You may be eligible for a noncommercial restricted driver license if:
- this is your first offense, and
- you completed a chemical test, and
- the results showed a BAC level of .08 percent or more, and
- you are 21 years of age or older (Vehicle Code §13353.7), and
- your driving privilege is not suspended or revoked for some other reason.
You must not have had another DUI or DWI within 10 years of your current violation; this includes a charge that was reduced to Reckless Driving, Vehicular Manslaughter, or being convicted of a previous DUI under age 21 even with a BAC of .01 percent or more or a .08 BAC or more at any age or if there was a refusal of a chemical test.
If you have a commercial driver license, you must downgrade to a Class C. If you were cited for drunk driving in a noncommercial vehicle, you may be eligible for a restriction to drive only to and from a DUI treatment program, and to, from and during the course of your employment. f you were cited in a commercial vehicle, you may be eligible for a restriction to drive only to and from a DUI treatment program.
How to Get a Noncommercial Restricted License
To be issued a noncommercial restricted driver license, you must:
- enroll in a First Offender DUI program (you must notify the program provider that you intend to apply for a restricted driver’s license), and
- ask the program provider to file a Proof of Enrollment Certificate (DL 107) in a licensed DUI First Offender Program with DMV per Vehicle Code §23538[b], and
- file proof of insurance or financial responsibility (Proof of Insurance Certificate is identified as SR 22; you can deposit $35,000 cash; obtain a surety bond; or provide a self-insurer certificate under Vehicle Code §16430), and
- pay a nomical reissue fee to the DMV, and
- wait until the end of the mandatory 30-day suspension period before applying for a restricted driver’s license, and
- request a “To/From/During Course of Employment and DUI Program Restriction.” Your driving privilege will be valid for 5 months and it is restricted to allow you to drive to, from and during the course of your employment and to and from the DUI program.
If you enroll and fail to participate or do not complete the First Offender Program, the DMV will immediately revoke your restricted license and reimpose the suspension of your driver’s license. For more information on the DMV and criminal case, send us an email or call Spital & Associates at 619.583.0350.
8880 Rio San Diego Drive, Suite 800
San Diego, CA 92108-1642
Downtown Associate Office
Of Counsel – Bill O’Connell, Esq.
110 West C Street, Suite 1300
San Diego, CA 92101-3978
Our Associates are available 7am-9pm daily.
Call 619.583.0350 or send us an e-mail.
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.