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License Suspension Program
The information presented here is to provide those who have or desire a driver’s license about the Administrative License Suspension Program, known as “Admin Per Se” (APS) became law in an attempt to be an immediate deterrent to anyone driving under the influence. The focus of Spital and Associates, however, is on occupational licenses (Dealer and Sales) and not individual or commercial driver licenses.
Who is Affected?
The Department of Motor Vehicles (DMV) is required to suspend or revoke the driving privilege of any person arrested for driving under the influence of alcohol or a combination of alcohol and drugs (DUI), who:
- takes a chemical (blood or breath) test that shows a Blood Alcohol Concentration (BAC) level of .08 percent or more, or
- refuses to take or fails to complete a chemical (blood or breath)* test to determine his or her 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?
You will receive an Order of Suspension from the police officer, sheriff or CHP. If you have a valid California driver’s license, the officer will take your driver’s license and then send it to the DMV. The Order of Suspension serves as your temporary license for 30 days from the issue date. At the end of the 30 days, the suspension action goes into effect. If the officer does not serve you with an Order of Suspension, however, the DMV will mail one to you. You should make certain the address on your driver’s license is the one where mail should be sent.
The temporary license does not allow you to drive if there is another DMV- or court-imposed driver’s license action in effect.
This suspension is independent of any action the San Diego Superior Court will take if you are arrested for a drunk driving offense.
What Actions does the DMV Take?
The DMV conducts an administrative review that includes an examination of the officer’s sworn police, sheriff or CHP report and any other relevant documents. If the review shows there is no basis for the suspension, the DMV will set it aside.
What to Do After the Police Encounter
You have 10 days from 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. The suspension will not be delayed unless:
- you request a hearing within 10 days from the issue date of the order, and
- DMV cannot provide a hearing before the effective date of the suspension.
Before the hearing, we will demand to see and/or obtain copies of the evidence the DMV will be considering in issuing its decision. 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 this representation as part of the services we provide when we are retained as your DUI Attorneys. While you may be present and testify, unless your defense is one of “actual innocence” (i.e. you did not have anything to drink at all) we generally do not have you testify at the DMV hearing, because anything you say could be used against you in the criminal portion of your case.
The DMV ordinarily does not arrange to have the peace officer testify. However, the DMV reserves the right to call the officer if his/her testimony is needed. As your DMV attorney, we may subpoena the officer or any other witness(es) that may help your case and have relevant testimony or evidence to present. After the hearing decision, you may make 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 from the DMV. The fee for a department review is $120.
You may reinstate your driving privilege after the hearing if:
- you pay a $125 reissue fee to the DMV (Vehicle Code §14905)
- you file proof of financial responsibility (i.e., a California Insurance Proof Certificate [SR 22], $35,000 cash deposit, surety bond, or self insurer certificate under VC §16430)
- you maintain proof of financial responsibility for three years
DMV Hearing Issues
The Hearing Officer who conducts the administrative hearing cannot grant you a restricted driver’s license regardless of your need to drive. Only the following issues will be review:
A. If you took a chemical test:
- Did the peace officer have reasonable cause to believe you were driving a motor vehicle under the influence of alcohol in violation of VC §§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 peace officer have reasonable cause to believe you were driving a motor vehicle under the influence in violation of VC §§23152 or 23153?
- 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 Will 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 three or more offenses in 10 years
Eligibility 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 (VC §13353.7), and
- your driving privilege is not suspended or revoked for some other reason.
You must not have had another DWI within 10 years of a current violation, which includes a charge reduced to Reckless Driving, Vehicular Manslaughter, or Under 21 and you were convicted or in a previous DMV hearing you were held to have been driving with a BAC of .01 percent or more while under age 21, or .08 percent or more at any age, or you refused a chemical test.
If you have a commercial driver license, you must downgrade to a Class C. If you were cited for drunk driving, driving under the influence (DUI) or DWI in a:
- noncommercial vehicle, you may be eligible for a restriction to drive to/from a DUI treatment program, and to/from/during the course of your employment only.
- commercial vehicle, you may be eligible for a restriction to drive to/from a DUI treatment program only.
Noncommercial Restricted License
To be issued a noncommercial restricted driver license, you must:
- enroll in a First Offender licensed driving under the influence (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 VC §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 VC §16430), and
- pay a $125 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 restricted to allow you to drive to, from, and during the course of your employment and to and from the DUI program. This restriction is valid for five months.
NOTE: 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.