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Driver’s License got taken away after a DUI? (DMV Administrative Per Se “APS” Law)

Law Office of Charlotte C. LinHere I will attempt to summarize basic DMV laws (a very convoluted topic) that apply after a DUI in California.

First, keep in mind that the DMV proceeding is a separate proceeding from the criminal proceeding (in court). The two proceedings may stem from the same offense (the DUI), but they are separate, although sometimes the consequences overlap. Here I will only discuss the DMV aspect:

What is the Administrative Per Se (APS) law?

California in 1990 implemented an immediate driver license suspension for DUI’s. This is the Administrative Per Se (APS) law. This is the law that requires the DMV to suspend or revoke the DUI arrestee’s driving privilege (if arrested for driving with BAC of .08% or more, or if refused a chemical test). (See VC § 13352(a)(1) below).

For a driver with no prior DUI conviction or APS action within the last 10 years, a 4 month suspension is imposed. First they must suffer a 30 day hard suspension. If they can provide proof of insurance and enrollment in a DUI program, and pay all penalties, they may get a restricted license (to go to and from school or work).

On a related note, California in 1994 also introduced the zero tolerance law for those under 21 years old. This required the DMV to suspend the underage driver’s license who has as little as .01% BAC (or who refused to do an alcohol screening test). (See VC § 13352(a)(2) below). See my posts on minors and alcohol (part 1 and 2).

Also, since 2009, for those on probation for a prior DUI and is currently charged with a BAC of .01% or more (or refuses to do an alcohol screening test), DMV will order a one year suspension. (See VC § 13353.2(a)(4) below and VC § 23154).

Also, for those who refused a BAC test, a 1 year suspension is imposed. If this is a second offense, a 2 year suspension is imposed. For a third offense, 3 year suspension. (See VC § 13353).

For commercial drivers, since 2007, the per se limit was reduced to .04% for commercial drivers operating a commercial vehicle. The commercial driver with no prior DUI or APS action may get a noncommercial license and apply for a first offender restricted license. The issue here is that the restriction does not allow driving related to the job.  (See VC § 13352(a)(3) below and VC § 13557(b)(2)(C)(iv)).

How often are these imposed? DMV reports that in 2012 there were 180,113 APS actions initiated, 161,289 of which are for noncommercial drivers. Also, 106,562 of those are for drivers with no prior DUI convictions or APS actions, and 73,000 drivers suffered the 4 month license suspensions.

What is the temporary license I got after a DUI?

After a confiscation of the driver’s license for a suspected DUI, a 30 day temporary license is given to the driver. Um, isn’t there due process for these types of things? DMV believes there is due process because they give the driver time to challenge the suspension by asking for a hearing (the Administrative Per Se or “APS” hearing). Keep in mind there is a 10 day deadline to request an APS hearing (even though the temporary license is for 30 days) (VC § 13558 (b):If the person wishes to have a hearing before the effective date of the order of suspension or revocation, the request for a hearing shall be made within 10 days of the receipt of the notice of the order of suspension or revocation.). There may some legal challenges as to if a request can be made after the 10 days.

What will happen to my driver’s license after a first offense DUI?

BAC of .08 or higher –> 4 month DMV suspension (first 30 day hard suspension, then can get a restricted license subject to eligibility.

Refused to take chemical test –> one year suspension. No restricted license option.

Under 21 years old with BAC of .01 or higher –>1 year suspension (first 30 day hard suspension, then can apply for critical need restricted license subject to eligibility). Also see Minors and DUI and Minors in Possession of alcohol.

(Note, the above will be different if there are prior DUI’s or APS actions within 10 years, please talk to a DUI attorney. Remember, the criminal court may also impose its separate suspension on driving privileges as well).

 

V C Section 13353.2 Immediate Suspension (copied partially)

Immediate Suspension

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.

 

 

 

 

 

 

About Charlotte Lin

Charlotte is a trusted lawyer by day, and legal ninja by night. In her spare time she enjoys slashing tickets with nunchucks.