California’s DUI laws can be complex and confusing. In this section, our attorneys break down the rules and explain the process.
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Motorists typically do not lose their driver’s license immediately after being arrested for driving under the influence (DUI). Instead, usually, the arresting officer will take the suspect’s driver’s license and issue a temporary permit. This driving permit will have an expiration date. If the driver does not successfully challenge the suspension, the permit will expire and the license will be suspended.
After an arrest for DUI, drivers have an opportunity to contest their license suspension before it goes into effect. The amount of time between the arrest and the suspension depends on the state. In California, for example, a driver’s license will be suspended 30 days after a DUI arrest. In Texas, though, it will expire in 40 days.
Generally, when a police officer pulls someone over and uncovers enough evidence of a DUI to make an arrest, the officer will confiscate the suspect’s driver’s license. The officer will then provide the suspect with a Notice of Suspension. This Notice acts as a temporary driver’s license. In California, this temporary license expires in 30 days.
Sometimes, the officer will not provide the driver with a temporary license. In these cases in California, the California Department of Motor Vehicles (DMV) will send the temporary license to the driver in the mail. This temporary license will still expire in 30 days, but the clock will only begin to count down from when the DMV sent the license, not the date of your arrest.
During this time, the driver can still drive.
Drivers can fight the looming license suspension by requesting a hearing at the DMV. This hearing is separate from the criminal DUI charges. It only concerns the person’s driving privileges. However, it is still very helpful to get the legal advice of a DUI lawyer.
Requesting a DMV hearing has to be done very soon after the arrest. In California, the request has to be made within 10 days. If the hearing is not requested within 10 days, the driver loses his or her right to the hearing. Their license will get suspended without a challenge.
In California, the request for a hearing can be made by calling or faxing a California DMV Driver Safety Office. Drivers can also request that their license suspension be stayed. This prevents the license suspension from going into effect after 30 days if the DMV hearing has not happened, yet.
At the DMV hearing, also known as a Driver Safety Administrative Per Se (APS) Hearing in California, the driver can contest their upcoming license suspension.
The DMV hearing is an informal administrative hearing. The hearing officer is just a DMV employee. He or she will listen to evidence from law enforcement that the driver was drunk driving. The driver can then rebut that evidence. This suspension hearing will not take place in a courtroom. Instead, it can happen in person at a local DMV office. In California, the hearing will happen at a DMV Driver Safety branch. The hearing may even take place over the phone.
Drivers have several important rights at these hearings. In California, drivers are entitled to:
Some common defenses that drivers and DUI attorneys raise at the DMV hearing include:
Many of these are the same defenses that can be raised in DUI court.
If the hearing officer finds, by a preponderance of the evidence, that the driver was under the influence, he or she will sustain the license suspension. Otherwise, the hearing officer will reverse the suspension, also known as “setting aside the action.” This is similar to a not guilty verdict, but only for the administrative hearing. However, getting the DMV hearing officer to set aside the license suspension is a strong indicator that law enforcement’s criminal case is weak.
For a first-time DUI offense that is a misdemeanor in California, drivers face a license suspension period of between 6 and 10 months. Even if it was the first offense, if the DUI case involved a car accident that hurt someone or the driver refused a chemical test, the administrative license suspension can last up to 1 year.
However, drivers can often choose to install an ignition interlock device, or IID, in their vehicle in order to continue to drive.
After the first month, many drivers can have their license suspension converted into a restricted license. This allows them to drive to and from work and their California DUI school. Restricted licenses are only available after the driver has:
If the driver refused a chemical test, it will be a license revocation, instead. They will have no chance of getting a restricted license.
A skilled DUI defense lawyer from a local law firm may be able to get these criminal charges reduced to charges for reckless driving. These charges carry lower penalties.
 California Vehicle Code 13352 VC and 13353 VC.
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.
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