(Generated in connection with a DUI Arrest)
If you have been arrested for a DUI in California, you must also deal with an administrative license suspension at a DMV proceeding (it is separate and apart from the Court proceedings). If the chemical test result was over .08% (if the defendant is 21 years of age or older), or the chemical test result was over .01% (if the defendant is under 21 years of age), or the defendant refused to submit to a chemical test, the police will take away his/her California driver’s license and issue him/her a notice of suspension and 30-day temporary license. The officers are not allowed to seize an out-of-state driver’s license, although they often do. Generally a DMV hearing with the California DMV should be requested even if you have an out-of-state driver’s license, but please contact Ms. McQueen to discuss the matter on a case-by-case basis. A first offense can result in a four-month license suspension, while a refusal or a second or subsequent offense within ten years can trigger a one-year license suspension.
It is absolutely critical that the accused or his attorney contact the DMV within 10 days of arrest. The importance of this cannot be overstated because if a timely request is not made, there will be no guaranteed hearing and the suspension will then automatically take effect 30 days after the arrest. A “stay” of the suspension should also be requested in order to prevent the suspension from automatically taking effect 30 days after the arrest.
If an attorney has not been retained within the 10-day window, the driver should contact the local Drivers Safety Office and request a DMV hearing (called an APS hearing) and a stay on the suspension of his license in order to preserve the right to a hearing. However, you should not try and handle an APS hearing on your own, nor should you expect much success if you retain an attorney who does not routinely handle DMV hearings-there are special rules that apply and your best chance for success lies with an attorney like Mindy McQueen, who understands the rules, procedures and issues at an Administrative Per Se Hearing. Unfortunately many general practitioners or general criminal attorneys with little or no training or experience in this very complex field often attempt to represent those accused of DUI at an APS hearing, with disastrous results.
As long as a stay on the suspension of your license has been requested, you will continue to have full driving privileges (at least until a decision has been rendered in connection with the DMV hearing). If the hearing is won, the DMV will not impose a separate suspension against your license; if the hearing is lost, the DMV will simply impose the same suspension they would have initially, just at a later date.
If an APS hearing is not requested, or is but is not won, the license will be suspended for 4 months if this is a first offense (in connection with California Vehicle Code Section 23152) within 10 years, you are 21 years of age or older, and the case does not include a refusal to submit to a chemical test. This suspension can actually be reduced to a 1-month suspension followed by 5 months of a restricted license (to, from and during the course of employment and to and from alcohol school) if you pay a $125 reinstatement fee to DMV, file proof of enrollment in a DUI school and SR-22 insurance. If the case involves a first-time refusal to submit to chemical testing, the revocation will be for one year (two years for a second or subsequent refusal), and the DMV will not give you a restricted license (for employment, alcohol school, or for any reason whatsoever). If you were under 21 years of age at the time of arrest, or are charged with a second or subsequent DUI within 10 years, the suspension period is for 1 year. There is restriction eligibility after a year if you pay a $125 reinstatement fee to DMV, file proof of enrollment in an 18-month DUI school, and file proof of SR-22 insurance and an interlock device on any vehicles that you own or operate.
Learn more about Attorney Mindy H. McQueen.