Arrested for DUI? Beware: The DMV Can Suspend a Person’s License Within 30 Days of the Arrest
It’s true that one of the consequences of being convicted of DUI in California is having your driver’s license suspended.[i] And since there’s so much that has to happen before a person can be convicted — like getting a lawyer, going to court, negotiating with the prosecutor, and possibly going to trial — there should be plenty of time to make arrangements before a person’s license is suspended. Right? Wrong.
The truth is …
The Clock Starts Ticking as Soon as a Person Is Arrested
In California, once a person is arrested for DUI, he will be informed by the arresting officer that, by law, he must submit to an evidentiary blood or breath test.[ii] The person may choose either to have his blood drawn or to blow into a handheld device. The purpose of the evidentiary test is to determine the person’s blood alcohol level.[iii]
If the person’s blood or breath reveal a blood alcohol level of .08 or more, the arresting officer will confiscate the person’s driver’s license and issue him a temporary driver’s permit [iv] that will expire 30 days from the date of the arrest.[v] In other words, the permit will allow the person to continue driving as he did before the arrest (to and from work, to pick up the kids from school), but after 30 days his driver’s license will be suspended.
How long will a person’s license be suspended for? It depends on whether this is the person’s first or subsequent arrest for DUI[vi]:[vii]
| First DUI | DUI with 1 or more priors within last 10 years |
|---|---|
| License suspended for 4 months | License suspended for 1 year |
When a person’s license is suspended, he CANNOT DRIVE AT ALL — not even for work. Driving on a suspended license is a crime that is punishable by a $300 fine, up to six months in jail, or both.[viii]
The point is that 30 days after a person is arrested for DUI, his license will be suspended by the DMV for at least four months.
Arrested 30 days pass License is suspended for at least 4 months (NO DRIVING ALLOWED FOR 4 MONTHS)
Often though, it will take more than 30 days for a person to fight a DUI charge in criminal court. The significance of this is that the DMV can suspend a person’s license even before the person has been found guilty of DUI in a criminal court!
How the DMV Decides Whether to Suspend a Person’s License
The arresting officer will submit documents to the DMV explaining why the officer arrested a person for DUI.[ix] The DMV will then review the officer’s documents[x] and, if it determines that the person was driving with a blood alcohol level of .08 or more, the DMV will suspend the person’s license as described in the chart above.[xi]
The documents that the arresting officer submits to the DMV may contain information regarding:
- the officer’s observations about the person’s driving pattern;
- the person’s admissions to consuming alcohol before driving;
- the officer’s observations about the person’s physical symptoms of intoxication such as slurred speech, unsteadiness on his feet, and the odor of alcohol on his breath;
- a person’s lack of coordination displayed during Field Sobriety Tests;
- the detection of alcohol in a person’s breath as recorded by a Preliminary Alcohol Screening (“PAS”) device;
- the results of an evidentiary blood or breath test showing a blood alcohol level of .08 or more; and
- the person’s driving record, which may include prior convictions for DUI.
The DMV will review all of this information and then decide, based solely on this information, whether the person who was arrested had a blood alcohol level of .08 or more when he was driving. Presenting evidence only of a person’s alleged guilt will make an adverse finding more likely. If the DMV determines that the person was driving with at least a .08 blood alcohol level, then the Department will suspend his license.
Can Anything Stop the DMV from Suspending a Person’s License?
Yes, but it’s not a guarantee.
A person arrested for DUI has the right to weigh in on the DMV’s review of the information submitted by the arresting officer.[xii] The person can do so by requesting a DMV Hearing within 10 days of his arrest.[xiii] The person must request the hearing within 10 days of his arrest or else he loses his right have the DMV hearing,[xiv] in which case the DMV will decide whether to suspend the person’s license without the person’s input.
It should be noted that requesting a DMV Hearing within 10 days of the arrest does not mean that the DMV Hearing will actually take place on the 10th day after the arrest. Instead, once the DMV Hearing is requested, it will be scheduled on a later date. A person’s criminal defense attorney can contact the DMV on the person’s behalf to schedule the date for the DMV Hearing.
At the DMV Hearing, a hearing officer will review the documents submitted by the officer to determine: (1) whether the officer reasonably believed that the person was driving while impaired or with a blood alcohol level of .08 or more; (2) whether the person was lawfully arrested; and (3) whether the person actually drove with a blood alcohol level of .08 or more.[xv] If the hearing officer answers “yes” to all three questions, then the person’s license will be suspended.
Armed with a criminal defense attorney, a person may challenge the veracity of the arresting officer’s observations, investigative techniques, and conclusions. If there was an evidentiary blood test, a forensic toxicologist can weigh in on the accuracy of the test results. All of this may persuade the DMV hearing officer to answer “no” to any of the preceding questions and, as a result, save a person’s license from being suspended.
But there is a cost. The arresting officer must be paid for his time to testify and, if he travels to the hearing, must be reimbursed for his mileage. The forensic toxicologist must review the blood sample before the hearing and will also bill for his time testifying. Both the arresting officer and the forensic toxicologist must be served subpoenas and there is a cost associated with that. The documents that the DMV will review may be subpoenaed and there may be copying costs associated with that. And if, during the DMV hearing, information is elicited that would be helpful to the person’s criminal case, then a record of what was said at the DMV hearing must be transcribed.
Each of these things has a cost and all of these costs must be borne by the person — not the DMV and not the person’s criminal defense attorney.
It must also be kept in mind that the person overseeing the hearing, the DMV hearing officer, is an employee of the DMV. In other words, the individual who will decide whether to suspend a person’s license is not an independent individual, but a person who works for the agency that has the authority to suspend a person’s license.
Ultimately, the decision of whether to request a DMV hearing and, if so, how vigorously to proceed at the hearing, will depend on the unique facts of a person’s case and will require a candid discussion with the person’s criminal defense attorney.
How Can a Person Get His License Back after the DMV Has Suspended It?
Apply for a restricted license.
If the DMV decides to suspend a person’s license, and this is the person’s first DUI, then the person’s license will be suspended for four months.[xvi] Recall that a person may not drive at all when his license is suspended and that doing so is a crime.[xvii]
A restricted license will reduce the period of suspension to just 30 days.[xviii] After 30 days of no driving, the restricted license will allow the person to resume driving — but only for two specific purposes: (1) to go to and from work; and (2) to go to and from the person’s first-offender DUI program.[xix] The restricted license will last for a period of five months.[xx]
| If the person … | His license will be suspended for … |
|---|---|
| Doesn’t get a restricted license | 4 months |
| Gets a restricted license | 1 month (technically, 30 days) … and then, for the next 5 months, he may drive only to go to work and to attend his DUI program. |
To obtain a restricted license, a person must[xxi]:
- have no DUI-related convictions in the last 10 years;
- not have had his license suspended by the DMV in the last 10 years;
- enroll in a first-offender DUI program;
- show proof of insurance to the DMV; and
- pay a $125 administrative fee.
It should be noted that enrollment in a first-offender DUI program is not enough; the person must actually complete the program. If the person fails to participate in the DUI program, his restricted license will be suspended.[xxii] The DMV will notify the person of this suspension and, 30 days after notification, the person’s license will be suspended for a period of four months.[xxiii]
But even with a restricted license, a person’s license — that is, his privilege to drive — is still at risk.
What Happens to a Person’s License after He Is Convicted of DUI?
A DUI conviction will trigger an automatic suspension of a person’s license.[xxiv] This means that even if a person obtained a restricted license, and even if he is currently attending a first-offender DUI program, his license will still be automatically suspended if he is convicted of DUI.[xxv]
This suspension period is longer — six months rather than four[xxvi] — and it begins once the DMV receives notice of the conviction. [xxvii] This means that if a person obtains a restricted license and then gets convicted of DUI, his license will be suspended for an additional six months. It should be noted that the suspension periods — one due to the decision by the DMV and the other caused by the DUI conviction — are imposed concurrently (they can overlap) rather than consecutively (one suspension period must end before the next one can begin). [xxviii]
Even if a person’s license is suspended after a DUI conviction, the person is eligible to re-apply for a restricted license.[xxix] The requirements are the same as the first time the person applied for a restricted license:[xxx] The restricted license will be effective for the full six months after the conviction.[xxxi]
Basically, once a person is arrested for DUI, the government will always have two opportunities to suspend the person’s license: first, after he is arrested; and then after he is convicted. The person must prevail at both the DMV hearing and at his criminal trial to prevent his license from being suspended. This approach may seem harsh and unfair, but it is the law, and it reflects a strong policy against drinking and driving.[xxxii]
What Happens to a Person’s License if He Beats His DUI Charge?
If a person is acquitted[xxxiii] — that is, if a jury finds him not guilty of DUI — then the DMV must reinstate the person’s driving privilege and return his license to him.[xxxiv]
There are two other ways to “beat” a DUI charge[xxxv]:
- even after the person is arrested, the prosecutor does not file charges; or
- the Court dismisses the case for a lack of evidence[xxxvi].
If either of these two scenarios occurs, then the person may request a second DMV hearing, but he must do so within one year of his arrest date.[xxxvii]
The person must bring with him a special form, issued by the DMV, that requires the prosecution to explain why the evidence against the person was defective or lacking.[xxxviii] If it was the Court that dismissed the case, then the DMV hearing officer will also consider the Court’s reasons for doing so.[xxxix]
If the DMV hearing officer is persuaded by this information, then the hearing officer will set aside the DMV’s original order to suspend the person’s license and the person’s driving privileges will be reinstated.[xl]
Conclusion
A person’s driver’s license — his means of commuting to work, of transporting his kids, of enjoying his free time — is at significant risk the moment that he is arrested for DUI. Protecting one’s license from both the DMV and the criminal court can be a challenge. A skilled criminal defense attorney can help a person navigate such an ordeal. But the best defense is to never drink and drive.
[i] Vehicle Code §§23536(c), 23538(a)(2), 13352(a).
[ii] Vehicle Code §§23612(a)(1)(A), (a)(1)(D), (a)(2)(A).
[iii] Vehicle Code §§23612(a)(1)(A).
[iv] Also known as DMV Form DS-367, “Administrative Per Se Order of Suspension / Revocation and Temporary License Endorsement.”
[v] Vehicle Code §§13382(a), (b).
[vi] Vehicle Code §13353.3(b).
[vii] Even if a person has one or more prior convictions for DUI, there are options that can reduce or eliminate the one-year period of license suspension; however, several requirements must be met. See Vehicle Code §§13353.3(b)(2)(B), (b)(2)(C).
[viii] Vehicle Code §§14601.5(a), (d)(1); 13353.2(a).
[ix] The officer may give the DMV Form DS-367, “Administrative Per Se Order of Suspension / Revocation and Temporary License Endorsement,” which explains the basis of the DUI arrest, as well as any supporting documents, such as the printout displaying the results of an evidentiary breath test. See also Vehicle Code §13382(c).
[x] Vehicle Code §§13353.2(d), 13557(b)(3).
[xi] Vehicle Code §§13353.2(a)(1), 13557(b)(3)(C)(i).
[xii] Vehicle Code §13558(a).
[xiii] Vehicle Code §§13558(b), 14100(a).
[xiv] Vehicle Code §§13558(b), 14100(a).
[xv] Vehicle Code §13558(c)(2), 13557(b)(3).
[xvi] Vehicle Code §13353.3(b)(1).
[xvii] Vehicle Code §§14601.5(a), (d)(1); 13353.2(a).
[xviii] Vehicle Code §13353.7(a).
[xix] Vehicle Code §13353.7(a).
[xx] Vehicle Code §13353.7(a)(3).
[xxi] Vehicle Code §13353.7(a).
[xxii] Vehicle Code §13353.7(a).
[xxiii] Vehicle Code §§13353.7(a), 13353.2(b), 13353.3(a), (b)(1).
[xxiv] Vehicle Code §13352(a).
[xxv] Vehicle Code §13353.7(b).
[xxvi] Vehicle Code §13352(a)(1).
[xxvii] Vehicle Code §13352(a).
[xxviii] Vehicle Code §§13353.3(c), 13352.4(b).
[xxix] Vehicle Code §13352.4(a).
[xxx] Vehicle Code §13352.4(a). The requirements are the same as the first time the person applied for a restricted license: proof of enrollment in a first-offender DUI program (this requirement will be satisfied if the person is already attending a DUI program), showing proof of insurance to the DMV, and paying any additional administrative fees.
[xxxi] Vehicle Code §§13352.4(b), 13353.3(c).
[xxxii] Vehicle Code §13353.2(e); Rivera v. Pugh (9th Cir. 1999) 194 F.3d 1064, 1068-1069.
[xxxiii] None of the following scenarios constitute an “acquittal” that would entitle a person to have his license reinstated, even if the results are favorable to the person: the prosecutor dismissing the case for insufficient evidence (for instance, after the prosecutor’s evidence is excluded at a suppression hearing), the Court dismissing the case “in furtherance of justice” pursuant to Penal Code §1385, a jury’s inability to reach a unanimous verdict (also known as a “hung” jury), a plea bargain reached with the prosecutor to reduce a DUI charge to a “wet” reckless. Gikas v. Zolin (1993) 6 Cal. App. 4th 841, 855, 857; Mosier v. Department of Motor Vehicles (1993) 18 Cal. App. 4th 420, 424, 426. This means that even if a person manages to get his criminal DUI charges reduced or even dismissed by one of these scenarios, the DMV’s decision to suspend his license will remain in effect and the DMV will not be required to reinstate the person’s license.
[xxxiv] Vehicle Code §13353.2(e). Submitting to the DMV a certified copy of the minute order showing that the person was found not guilty should be enough.
[xxxv] Vehicle Code §13353.2(e).
[xxxvi] The Court must dismiss the case for a lack of evidence pursuant to Evidence Code §1118.1.
[xxxvii] Vehicle Code §13353.2(e).
[xxxviii] Vehicle Code §13353.2(f).
[xxxix] Vehicle Code §13353.2(f).
[xl] Vehicle Code §13353.2(f).
Attorney Michael J. Ocampo is a former deputy district attorney. He focuses his practice exclusively on criminal law so that he can help those accused of a crime — often ordinary, everyday people — ensure that their rights are honored and that they receive a fair opportunity to be heard.
