3/12/20 UPDATE: Due to COVID-19, all DMV hearings will be done over the telephone. People who prefer in-person hearings may request them, but they will be delayed indefinitely.
A second time1 DUI arrest in California doesn't necessarily mean your drivers license will be suspended. In fact, a license suspension after a second time DUI arrest is far from automatic and there are ways to avoid having your license suspended.
The California Department of Motor Vehicles is the only authority that can or will suspend a California driver's license.
There are two separate ways a second time DUI triggers the imposition of a license suspension by the DMV.
- A suspension triggered as a result of a DUI California court conviction under Vehicle Code 23152 (a) or (b).
- A suspension triggered by failing to request a DMV hearing within 10 days of the date of the arrest or by losing a DMV hearing in connection with the DUI arrest. This is called an Administrative Per Se or APS Suspension.
In the article below, our California DUI defense lawyers will address:
- 1. Court Triggered License Suspensions
- 2. Administrative License Suspensions
- 3. Distinguishing the Process Surrounding a Court vs. DMV Triggered License Suspension
- 4. Can I get a restricted license after a 2nd DUI?
For more information on how License Suspensions work in California following a DUI arrest, please feel free to also visit our pages on:
A court-triggered license suspension is two years when there is one prior DUI or wet reckless conviction within ten years.2 A Judge, however, does not impose this suspension.
Instead, upon your conviction, the court notifies the DMV and the DMV imposes the suspension. Significantly, during DUI plea bargaining, you may be able to get the DUI charge reduced to reckless4 driving or to another offense that avoids a court-triggered license suspension.
Note that the California DMV usually allows defendants to continue driving anywhere during their license suspension if they agree to install an ignition interlock device in their cars. (California Senate Bill 1046 (2018))
In the event you decide to take your DUI case to trial and it results in a mistrial, hung jury or "not guilty" verdict, then you will likewise avoid a court triggered license suspension.
When facing a second offense DUI in California, you must also be aware that the California DMV will attempt to have your license suspended due to an administrative per se violation (APS).
Immediately after being arrested on a second time DUI offense, you will be given just ten days in which to request a DMV hearing from the California Department of Motor Vehicles and therefore, put a temporary hold/stay on the suspension of your license.
If no hearing is requested, the DMV may then be able to automatically proceed with the suspension of your driver's license.
However, only individuals arrested for DUI with a BAC of .08 or higher face such an administrative driver's license suspension. See Vehicle Code 13353.2.4 Hence, if you submitted to a chemical test and the results eventually show a blood alcohol concentration level below .08, the California DMV will NOT suspend your license per an APS violation.
If your BAC comes back .08 or above, however, you will need to request and prepare for a DMV hearing. While success at a DMV hearing is always an uphill battle, the odds certainly improve if you are represented at the hearing by a skilled and experienced California DUI attorney.
If you win your hearing, no administrative license suspension is imposed. If you lose your hearing, the APS suspension is 1 year if there is 1 prior DUI on the record within 10 years. However, the California DMV usually allows defendants to continue driving anywhere during their license suspension if they agree to install an ignition interlock device in their cars. (California Senate Bill 1046 (2018))
The Court and DMV proceedings are independent of each other. While the DMV hearing deals solely with your driving privilege and the circumstances surrounding a DUI arrest, the Court proceedings deals with whether you are innocent or guilty of a criminal violation.
Some other important distinctions between the DMV and court process include the following:
- You have a choice whether or not to have a DMV hearing and whether or not to have an attorney present at said hearing; the court process demands that either you or your attorney be present at all scheduled hearings.
- A victory at a DMV hearing has no direct effect on your DUI court proceedings. The DMV hearing officer can only set aside the administrative action against your driving privilege. This decision is separate and/or independent from any criminal charge, sanction, penalty, or decision.
- If you lose your DMV hearing, you may have a renewed right to a hearing within one year of your arrest date when a DUI charge is dismissed or not filed by a District Attorney due to lack of evidence, or filed, but later dismissed by the court because of insufficient evidence or unlawful search and seizure pursuant to California Penal Code Sec. 1538.5.
- A reduction of a DUI charge to reckless driving in the criminal court is independent of the administrative proceedings, and does not affect the driving privilege suspension.
- When going through the court process, you must consider consequences that go well beyond the suspension of your license. In fact, on a second time DUI, jail time often becomes a serious possibility as result of a second DUI court conviction.5
There are two types of restricted licenses: 1) an IID restricted license, and 2) a restricted license:
i. IID restricted license
IID is short for ignition interlock device, which is a breathalyzer that stops a car from starting if it detects the driver has been drinking. The California DMV usually allows defendants to continue driving anywhere during their license suspension if they agree to install an ignition interlock device in their cars. (California Senate Bill 1046 (2018))
The defendant needs to file an SR22 form, complete DUI school, and pay all fees to get an IID restricted license.
The IID restricted license period lasts for 1 year for a second-time DUI.
ii. Restricted license
A restricted license enables you to drive to and from work, school, and/or California DUI school.
The DMV will require you to file an SR22 form in order to obtain a restricted license or to fully reinstate your license following your suspension period. You may be required to maintain your SR22 with the California DMV for a period of 3-years from the date of having your license reinstated.
While the APS suspension is 1 year if there is 1 prior DUI on the record within 10 years, if you submitted to a chemical test and show proof of installation of an ignition interlock device ("IID"), you can obtain a restricted license after 90 days. This restricted license allows you to drive anywhere as long as it's in a car with an IID installed. This is required for 12 months.
Unfortunately, drivers facing a second time DUI offense in California who also refused to submit to a chemical test will face a much tougher punishment. These individuals face a two-year license revocation and are not entitled to a restricted license during any part of the suspension period.
You should note that there is no way around the 12-month ignition interlock device (IID) requirement. Therefore you should install it immediately so that you can get the restricted license on the 91st day after your suspension initially began.
Finally, prior to getting a restricted license, your DMV record should show that a court-triggered suspension has already begun. However, the suspension triggered as a result of the court conviction does not have to already have run 90 days so as long as the APS has already run 90 days, which is common.
Call Us For Help...
If you or a loved one is in need of help with a second license suspension and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
Our Nevada DUI defense lawyers are located in Las Vegas and Reno.
California DUIs are "priorable" offenses. This means that the punishment increases with each consecutive drunk driving conviction that takes place within a ten-year period.
This ten-year timeframe is otherwise known as a "washout" or "lookback" period and also includes (1) California "wet" reckless, convictions, and (2) out-of-state convictions that, if committed in California, would constitute a DUI. See California Vehicle Code 23622 -- Violations of § 23152 or § 23153 within 10 years of specified offenses; effect upon sentencing. ("(a) In any case charging a violation of Section 23152 or 23153 and the offense occurred within 10 years of one or more separate violations of Section 23103, as specified in Section 23103.5, that occurred on or after January 1, 1982, 23152, or 23153, or any combination thereof, that resulted in convictions, the court shall not strike any separate [DUI] conviction of those offenses for purposes of sentencing in order to avoid imposing, as part of the sentence or term of probation, the minimum time of imprisonment and the minimum fine, as provided in this chapter, or for purposes of avoiding revocation, suspension, or restriction of the privilege to operate a motor vehicle, as provided in this code. (b) In any case charging a violation of Section 23152 or 23153, the court shall obtain a copy of the driving record of the person charged from the [California] Department of Motor Vehicles and may obtain any records from the Department of Justice or any other source to determine if one or more separate violations of Section 23103, as specified in Section 23103.5, that occurred on or after January 1, 1982, 23152, or 23153, or any combination thereof, that resulted in convictions, have occurred within 10 years of the charged offense. The court may obtain, and accept as rebuttable evidence, a printout from the Department of Motor Vehicles of the driving record of the person charged, maintained by electronic and storage media pursuant to Section 1801 for the purpose of proving those separate violations. (c) If any separate convictions of violations of Section 23152 or 23153 are reported to have occurred within 10 years of the charged offense, the court shall notify each court where any of the separate convictions occurred for the purpose of enforcing terms and conditions of probation pursuant to Section 23602.")
Pursuant to California Vehicle Code 23103.5, a wet reckless is a reckless driving that functions as a prior DUI on your record. If you sustain a wet reckless conviction, and get charged with a subsequent DUI during the following 10 years, courts treat the new DUI charge as a second offense when imposing DUI penalties in California. California Vehicle Code 23103 defines reckless driving. If, after being charged with a DUI, you plead guilty or no contest to this charge, it is referred to as a dry reckless, as opposed to a "wet" reckless. California Vehicle Code 23109(c) exhibition of speed or "speed ex" is a charge that is commonly bargained for during DUI plea bargaining. Although it has nothing to do with DUI per se, it acts as a signal to other prosecutors and law enforcements officers that you were initially arrested for a DUI.
California Vehicle Code 13353.2. (a) The department shall immediately suspend the privilege of a person to operate a motor vehicle for any one of the following reasons:(1) The person was driving a motor vehicle when the person had 0.08 percent or more, by weight, of alcohol in his or her blood. (2) The person was under 21 years of age and had a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test, or other chemical test. (3) The person was driving a vehicle that requires a commercial driver's license when the person had 0.04 percent or more, by weight, of alcohol in his or her blood. (4) The person was driving a motor vehicle when both of the following applied: (A) The person was on probation for a violation of Section 23152 or 23153. (B) The person had 0.01 percent or more, by weight, of alcohol in his or her blood, as measured by a preliminary alcohol screening test or other chemical test.
California Vehicle Code 23540 – Second time DUI in California--DUI punishments; ("(a) If a person is convicted of a violation of Vehicle Code 23152 and the offense occurred within 10 years of a separate violation of Vehicle Code 23103, as specified in VC 23103.5, VC 23152, or VC 23153, that resulted in a conviction, that person shall be punished by imprisonment in the county jail for not less than 90 days nor more than one year and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000). The person's privilege to operate a motor vehicle shall be suspended by the department pursuant to paragraph (3) of subdivision (a) of Section 13352. The court shall require the person to surrender the driver's license to the court in accordance with Section 13550.
See also California Vehicle Code 23542 – Second time DUI in California penalties. Conditions of probation for second offense. ("(a)(1) If the court grants probation to a person punished under Section 23540, in addition to the provisions of Section 23600 and any other terms and conditions imposed by the court, the court shall impose as conditions of probation that the person be confined in county jail and fined under either of the following: (A) For at least 10 days, but not more than one year, and pay a fine of at least three hundred ninety dollars ($390), but not more than one thousand dollars ($1,000). (B) For at least 96 hours, but not more than one year, and pay a fine of at least three hundred ninety dollars ($390), but not more than one thousand dollars ($1,000). A sentence of 96 hours of confinement shall be served in two increments consisting of a continuous 48 hours each. The two 48-hour increments may be served nonconsecutively...(b) In addition to the conditions specified in subdivision (a), the court shall require the person to do either of the following: (1) Enroll and participate, for at least 18 months subsequent to the date of the underlying violation and in a manner satisfactory to the court, in a driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code, as designated by the court...(2) Enroll and participate, for at least 30 months subsequent to the date of the underlying violation and in a manner satisfactory to the court, in a driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code. ")