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In 1990, California became the 28th state to implement an immediate
driver license suspension law for alcohol-impaired drivers, also
referred to as an “Administrative Per Se (APS)” or “on-the-spot”
license suspension law. The California APS law requires the Department
of Motor Vehicles (DMV) to suspend or revoke the driving privilege
of persons who are arrested for driving with a blood alcohol concentration
(BAC) of .08% or more, or who refuse a chemical test upon arrest.
In January 1994, California implemented a companion driver license
suspension law, known as the “zero tolerance law,” which
requires DMV to suspend for one year any driver under age 21 with
a BAC of .01% or more as measured by a preliminary alcohol screening
test, or who refuses or fails to complete the test. These administrative
actions are independent of any criminal
penalties imposed in court for conviction of the driving-under-the-influence (DUI) offense.
Upon arrest, or detention (as applicable in the .01% APS law), the
driver’s license is immediately confiscated and an order of
suspension or revocation served.
For either law, due process is allowed by the issuance of a 30-day
temporary license intended to provide the driver with sufficient
time to challenge the suspension through DMV administrative review.
The time allowed to challenge the suspension was reduced from 45
days on July 1, 1993. As of January 1, 1993, offenders who are
dismissed for insufficient evidence or are never charged by the
court may request an APS dismissal hearing to consider setting
aside the associated APS action. Under the .08% APS law, when a
driver submits to and “fails” a BAC test and has no
prior DUI convictions or APS actions, a 4-month license suspension
is imposed.
Following
30 days of “hard” suspension, and providing they first
demonstrate proof of insurance, show proof of enrollment in an approved
alcohol treatment program, and pay all penalty fees, the law provided
for such drivers to obtain either a 90-day restricted license to
drive to and from an alcohol treatment program (repealed September
20, 2005), or (as of January 1, 1995) a 5-month restricted license
which also allows driving to, from, and during the course of employment.
A 1-year suspension is imposed on drivers having one
or more prior DUI convictions or APS actions within 10 years,
with a recently enacted (July 2010) provision for a restricted
license following 90 days completion of a 18 months DUI program
and installation of a ignition interlock device.
Under this law, for offenders refusing a BAC test, a 1-year license
suspension is imposed for a first offense, a 2-year revocation is
imposed for a second offender refusal, and a 3-year revocation is
imposed for a third-or-subsequent offender refusal (within 7 years
prior to September 20, 2005 and within 10 years thereafter). There
are no provisions for issuance of a restricted license following
a BAC test refusal.
The .01% BAC law requires a 1-year suspension and provides for a
hardship restriction only if a BAC test was completed and the driver
can demonstrate a critical need to drive.
As of September 20, 2005 commercial
drivers arrested in a noncommercial vehicle and having no prior
DUI convictions or APS actions within 10 years are handled differently
than other first offenders as they are no longer granted an automatic
restriction to drive to, from, and during the course of employment
following a 30-day “hard” suspension as they originally
were. (A noncommercial vehicle is one not requiring a commercial
driver license, or heavy-vehicle operator’s license, to drive.)
A DMV Administrative Per Se Hearing is an informal proceeding that
occurs in-person or can occur over the telephone. The hearing officer
conducts the hearing acting as both the judge and prosecutor. This
is a conflict that is allowed to exist under current law and requires
a truly knowledgeable and savvy attorney to handle.
Our office generally conducts the DMV hearings
in person as opposed
to telephone hearings. We feel this is an important service to provide
our clients and we are convinced based on our experience and success
that it is important to conduct the hearings in person.
The hearing occurs at a DMV Driver’s safety office in a plain
room with generally a simple table and chairs, tape recorder and
telephone. The hearing officer and the attorney are present. The
hearing officer will make a decision on whether to require the law
enforcement officer who arrested you for DUI to appear. The DMV is
not required to bring in the officer and can rely entirely on the
police report.
The attorney can compel the law enforcement officer’s appearance
if it is in the interest of the client to have the law enforcement
officer present. The attorney can compel other witnesses to appear
and testify if it is in the client’s interest, including expert
witnesses to address issues such as the validity of the chemical
test.
- Did the officer have reasonable cause to believe that the accused
was driving a motor vehicle in violation of the drunk driving
laws (CVC 23152 or 23153)?
- Was the accused lawfully arrested?
- Was the accused driving a motor
vehicle when she or he had .08 or more, by weight, of alcohol
in their blood?
- Did
the officer have reasonable cause to believe that the accused
was driving a motor vehicle in violation of the drunk driving
laws (CVC 23152 or CVC 23153)?
- Was the accused lawfully arrested?
- Was the accused told that their
driving privilege would be suspended for one year, or revoked
for two or three years, if they refused to submit to, or failed
to complete, a chemical test?
- Did the accused refuse to submit
to, or fail to complete, a chemical test after being requested
to do so by a peace officer?
Our office has many winning strategies that address each of the
issues raised at an Administrative Per Se hearing. We have been
very successful in formulating different winning strategies for
our clients.
To request a hearing, you MUST contact a Driver Safety Office.
Click here for a list.
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