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How Your California Driver’s License is Affected by a DUI/DWI Arrest
If you are arrested in California for driving under the influence of alcohol or drugs (DUI), you face two separate legal proceedings: one in criminal court which will determine if you are guilty of a criminal offense and impose penalties on you, such as jail time and fines; and, the second one in an administrative proceeding with the Department of Motor Vehicles (DMV) which focuses on whether or not you will retain your driving privileges.
Although the criminal proceedings alone may seem daunting, a major and immediate life-altering concern is how to maintain your driving privileges. In the real world, you still need to drive to work, take your kids to school, go grocery shopping and conduct other activities you probably took for granted until now; the very real possibility of having your driving privileges suspended or revoked may thus undermine your ability to conduct your normal, everyday life.
Immediate Action Within 10 Calendar Days of Your Arrest
The officer will give you an Order of Suspension/ Revocation. If you have a valid California driver license, the officer will take your driver license and send it to the DMV (to be destroyed). The Order of Suspension/Revocation includes a temporary driver license valid for 30 days from the issue date (usually the date of your arrest). At the end of the 30 days, the suspension/ revocation action goes into effect. If the officer does not serve you with an Order of Suspension/ Revocation, the DMV will mail you one.
When you are arrested for a DUI, the arresting officer will take your driver’s license from you (and send it to the DMV to be destroyed) and give you a pink document titled “Order of Suspension/Revocation.” The Order/Notice of Suspension serves as a temporary license which allows you to legally drive for the 30 days after your arrest. At the end of the 30 days, if you do nothing, your license will be suspended. But, do not be confused by the 30-day driving privilege. Within 10 calendar days of receiving the Order of Suspension, you must request a DMV hearing to challenge the suspension. If you let the 10 days go by without requesting a hearing, you lose your right to request a hearing and at the end of the 30 days, your license will be suspended.
The DMV Hearing
Assuming that you have requested the DMV hearing within 10 days of your arrest, the DMV will then schedule and notify your attorney of the date of your hearing, which generally takes place within weeks or even months after your arrest. It is important to reiterate that the DMV process is independent of the criminal action pending against you for the DUI/DWI arrest. In this light, the DMV is not concerned with your guilt or innocence of a criminal offense, but only on the circumstances surrounding your arrest and whether or not you are entitled to have driving privilege. It is likewise relevant to note that the standard for the government to prove your guilt at the DMV hearing is lower than it is at the criminal legal proceedings. This means that it is easier to be proven guilty at the DMV proceedings than it is at the criminal proceedings. At the DMV hearing, the issues that can be raised are limited to the following:
If, during the traffic stop leading to your DUI arrest you submitted to a chemical test of your blood, breath or urine:
- Whether the police had probable cause for the traffic stop.
- Whether the arresting officer had reasonable cause to believe you were driving under the influence.
- The ways in which the blood, breath or urine tests were performed, whether proper protocol was followed and whether the administering officer was authorized to conduct the specific test.
- Whether you were driving a motor vehicle with a BAC of 0.08 or greater.
If you refused to submit to chemical testing, you can challenge:
- Whether the police had probable cause for the traffic stop.
- Whether or not the arresting officer had reasonable cause to believe you were driving under the influence.
- Whether the arrest was lawful.
- Whether the arresting officer informed you that if you refused to submit to chemical testing, your license would be suspended for one year or revoked for up to three years.
- Whether you refused to take a test or there was a problem that caused you to be unable to complete the test.
You are not required to attend the DMV administrative hearing. Your criminal defense attorney will be able to conduct this hearing without your presence being required.
If You Lose Your DMV Hearing, You May Be Eligible for a Restricted License
If you lose your DMV hearing, your license will be suspended. The length of time of the suspension, and whether or not you are eligible to apply for a restricted license, depends on whether this is your first or subsequent offense. A suspended license means you have no driving privileges and are not allowed to drive for any reason for a certain period of time. However, if you comply with certain requirements, you may be eligible for a restricted license. A restricted license allows you to drive to work and back and often allows you to also drive to a DUI treatment program.
You may be eligible for a noncommercial restricted driver license if all of the following apply:
- This is your first offense.
- You completed a chemical test.
- The results showed a BAC level of 0.04% while operating a commercial vehicle, or 0.08% or more while operating a noncommercial vehicle.
- You were 21 years of age or older (VC §13353.7).
- Your driving privilege is not suspended or revoked for some other reason.
General requirements for obtaining a restricted, noncommercial license include:
- Enroll in a licensed DUI First Offender program. (You must notify the program provider that you intend to apply for a restricted driver license.)
- Ask the program provider to file a Proof of Enrollment Certificate (DL 107) in a licensed DUI First Offender program with DMV (CVC §23538(b)).
- 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 CVC §16430).
- Pay a $125 reissue fee.
- Wait until the end of the mandatory 30-day suspension period before applying for a restricted driver license.
- 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 5 months from the issuance date.
Separately, if you comply with other requirements – which your attorney may explain to you – you may become eligible to regain your license, free of any restrictions.
If your license is revoked, it means it is totally taken away from you for a period of time. When the time expires, you have to apply for a new license. If you are stopped while driving with a suspended or revoked license, that is a separate criminal offense that subjects you to more serious penalties.
What Happens if You Lose Your DMV Hearing, but Win Your Court Case
The answer to that question is, “it all depends.” If you are acquitted of the criminal charges after a full hearing, a suspension or revocation may be reversed by the DMV. If charges were just reduced or dismissed for lack of evidence, the DMV suspension or revocation will likely not be affected.
When there is so much at stake at both proceedings, and the very real possibility of losing your driving privileges, you need the assistance of an experienced criminal defense attorney who will be able to represent you at both the DMV administrative hearing and in criminal court for your defense. Please call us for a free consultation.