The administrative suspension and the DMV

One of the most important changes to DUI law for most people is the new statutory scheme effective January 1, 2019 allowing for an immediate restricted driving privilege with the installation of an ignition interlock device. CVC 13353.3
This is true whether the person has no priors or has one, two or three priors. The most significant points related to the Administrative Suspension upon a DUI arrest under the new law are as follows:
– A restricted license is available immediately without conducting an administrative hearing;
– A restricted license is still available with installation of an ignition interlock following outcome of the DMV administrative hearing;
– An administrative suspension is terminated upon conviction;
– Your client will receive credit for any pre-conviction restriction with an IID installed against any post conviction suspension;
– There is no administrative suspension for drug only offenses
Counsel representing a client before the Department of Motor Vehicles in a so-called “administrative per se” case, also called “APS” or, in the case of refusal suspensions, “implied consent,” must understand that the laws and rules are quite different from those encountered in the courtroom. Quite simply, the statutes are complex and confusing, the administration political and bureaucratic in the extreme, and the procedures and evidentiary rules almost completely lacking in due process. Counsel will find that “discovery” may be faxed to him the afternoon before the hearing and that the Department’s entire case consists of just paperwork. If counsel insists on the right of confrontation he or she must subpoena the arresting officer and pay his salary for the privilege. He will also be surprised to find that the “prosecutor” and “judge” are one and the same person; a DMV employee with no legal training. This “hearing officer” will rule on his own objections, grant himself continuances when he is caught unprepared during the hearing (while routinely denying counsel’s requests for continuance), and answer to his superiors if his “ set aside” rate (percentage of hearings won by the licensee) is considered too high.
The APS procedures are a morass of unfair rules that have evolved over the years due to the intense political pressures of Mothers Against Drunk Driving (MADD). However, the attorney who learns the intricacies of this bureaucratic jungle and can exploit its weaknesses will find his own “set aside” rate climbing.

Procedures

A person arrested for drunk driving who takes a breath test indicating a blood-alcohol concentration of 0.08% or greater will have his license immediately confiscated by the arresting officer, who will serve him with an “Administrative Per Se Order of Suspension/Revocation and Temporary License Endorsement,” also called a DMV DS-367 form.
If a blood or, in the rare case a urine sample, is withdrawn, the consequences are the same: the license will be confiscated and the order served even though the eventual results will not be known for some time. [See VC § 23612].
If the person is accused of refusing to submit to chemical testing, the license will similarly be seized and suspended with more severe consequences. If the officer fails to take the license or serve the order, the DMV will subsequently mail the order to the individual. The document provided by the officer serves as: (1) a notice of the administrative suspension, and (2) a 30-day temporary permit to drive, and (3) notice of the right to request an administrative hearing within 10 days.
In addition immediate administrative action will similarly occur when a person is under 21 and has a BAC of .01 or greater, a commercial driver operating a commercial vehicle has a BAC of .04 or greater and a person on probation for a prior DUI has a BAC of .01 or greater.
CVC § 13353.2 provides the following categories:
(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% 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% 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% 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.
This action is taken pursuant to VC §§ 13353.2 and 13382. The latter statute provides:
(a) If the chemical test results for a person who has been arrested for a violation of Section 23152 or 25153, show that the person has 0.08% or more, by weight, of alcohol in the person’s blood, or if the person has been arrested for a violation of Section 23140, the chemical test results show that the person has 0.05% or more, by weight, of alcohol in the person’s blood, the peace officer, acting on behalf of the department, shall serve a notice of order of suspension or revocation of the person’s privilege to operate a motor vehicle personally on the arrested person.
(b) If the peace officer serves the notice of order suspension or revocation, the peace officer shall take possession of any driver’s license issued by this state which is held by the person. When the officer takes possession of a valid driver’s license, the officer shall issue, on behalf of the department, a temporary driver’s license. The temporary driver’s license shall be an endorsement on the notice of the order of suspension or revocation and shall be valid for 30 days from the date of arrest.
If the suspension is for a refusal to submit to chemical testing, the authority for license suspension derives from the “implied consent” provisions of VC §§ 13353 and 23612(e). The latter statute reads in relevant part:
(e) If the person, who has been arrested for a violation of Section 23140, 23152, or 23153, refuses or fails to complete a chemical test or tests, or requests that a blood or urine test be taken, the peace officer, acting on behalf of the department, shall serve the notice of order of suspension or revocation of the person’s privilege to operate a motor vehicle personally on the arrested person. The notice shall be on a form provided by the department.
As to California’s zero tolerance laws for persons under 21, CVC § 13388 provides:
(a) If a peace officer lawfully detains a person under 21 years of age who is driving a motor vehicle, and the officer has reasonable cause to believe that the person is in violation of Section 23136, the officer shall request that the person take a preliminary alcohol screening test to determine the presence of alcohol in the person, if a preliminary alcohol screening test device is immediately available. If a preliminary alcohol screening test device is not immediately available, the officer may request the person to submit to chemical testing of his or her blood, breath, or urine, conducted pursuant to Section 23612.
(b) If the person refuses to take, or fails to complete, the preliminary alcohol screening test or refuses to take or fails to complete a chemical test if a preliminary alcohol device is not immediately available, or if the person takes the preliminary alcohol screening test and that test reveals a blood-alcohol concentration of 0.01% or greater, or if the results of a chemical test reveal a blood-alcohol concentration of 0.01% or greater, the officer shall proceed as follows:
(1) The officer, acting on behalf of the department, shall serve the person with a notice of an order of suspension of the person’s driving privilege.
(2) The officer shall take possession of any driver’s license issued by this state which is held by the person. When the officer takes possession of a valid driver’s license, the officer shall issue, on behalf of the department, a temporary driver’s license. The temporary driver’s license shall be an endorsement on the notice of the order of suspension and shall be valid for 30 days from the date of issuance, or until receipt of the order of suspension from the department, whichever occurs first.
(3) The officer immediately shall forward a copy of the completed notice of order of suspension form, and any driver’s license taken into possession under paragraph (2), with the report required by Section 13380, to the department. For the purposes of this paragraph, “immediately” means on or before the end of the fifth ordinary business day after the notice of order of suspension was served.
(c) For the purposes of this section, a preliminary alcohol screening test device is an instrument designed and used to measure the presence of alcohol in a person based on a breath sample.
With regard to those persons already on probations CVC § 13389 provides:
(a) If a peace officer lawfully detains a person previously convicted of Section 23152 or 23153 who is driving a motor vehicle, while the person is on probation for a violation of Section 23152 or 23153, and the officer has reasonable cause to believe that the person is in violation of Section 23154, the officer shall request that the person take a preliminary alcohol screening test to determine the presence of alcohol in the person, if a preliminary alcohol screening test device is immediately available. If a preliminary alcohol screening test device is not immediately available, the officer may request the person to submit to chemical testing of his or her blood, breath, or urine, conducted pursuant to Section 23612.
(b) If the person refuses to take, or fails to complete, the preliminary alcohol screening test or refuses to take or fails to complete a chemical test if a preliminary alcohol device is not immediately available, or if the person takes the preliminary alcohol screening test and that test reveals a blood-alcohol concentration of 0.01 percent or greater, the officer shall proceed as follows:
(1) The officer, acting on behalf of the department, shall serve the person with a notice of an order of suspension of the person’s driving privilege.
(2)
(A) The officer shall take possession of any driver’s license issued by this state that is held by the person. When the officer takes possession of a valid driver’s license, the officer shall issue, on behalf of the department, a temporary driver’s license.
(B) The temporary driver’s license shall be an endorsement on the notice of the order of suspension and shall be valid for 30 days from the date of issuance, or until receipt of the order of suspension from the department, whichever occurs first.
(3)
(A) The officer shall immediately forward a copy of the completed notice of order of suspension form, and any driver’s license taken into possession under paragraph (2), with the report required by Section 13380, to the department.
(B) For the purposes of subparagraph (A), “immediately” means on or before the end of the fifth ordinary business day after the notice of order of suspension was served.
(c) For the purposes of this section, a preliminary alcohol screening test device is an instrument designed and used to measure the presence of alcohol in a person based on a breath sample.
After confiscating the arrestee’s license and serving him or her with an order of suspension, the arresting officer will complete a document entitled “Officer’s Statement,” which is also part of the DS 367 form. In the event that the arrestee is under the age of 21, the officer will have to complete an “Under Age 21 Officer’s Statement,” also referred to as a DS 367M form. [See sample of forms in Chapter 5]. This one-page form sets forth the bare minimum facts necessary for the DMV to suspend the license: observation of driving (or statutory exceptions), probable cause, and breath test results. The document is signed under oath by the arresting officer and, if applicable, the breath machine operator. The form is then supposed to be forwarded to the Department “immediately,” “on or before the end of the fifth ordinary business day following the arrest.” [VC § 13382(c)]
In fact, however, the officer routinely ignores this deadline with no consequences.
VC § 13353.2(d) then provides that the DMV will conduct an automatic administrative review of the suspension. If valid grounds exist, the licensee was driving and the test result was 0.08% or more according to the officer’s report, VC § 13353.3(b) provides for a suspension of four months. If the accused has suffered prior convictions within 10 years of VC §§ 23152, 23153, 23103.5 (“wet reckless”), or 23140, or PC §§ 191.5 or 192, the suspension is for at least one year.
In the case of an implied consent suspension for a refusal, VC § 13353(a)(1) provides for a one-year suspension. Additionally, for a driver who has received one or two priors within 10 years, revocations of two and three years are mandated. The Department requires an administrative fee and a Proof of Insurance, or “SR-22” form, to be filed before a driver can reinstate a license after any administrative suspension.
The individual has 10 days after service of the order within which to contact a local DMV Driver Safety Office and request a hearing.
The California Department of Motor Vehicles is perhaps the largest bureaucracy in the state. This department is responsible for issuing driver’s licenses and identification cards to residents and registering all motor vehicles in the state. As with most government agencies, the personnel claim to be understaffed and overworked. Accordingly, it is critical that counsel take steps to ensure that the request for the administrative per se hearing has been received by the DMV.
It is a prudent practice to transmit the request for a DMV hearing by facsimile and follow up by telephone to confirm they have received the request and have put the “stay” in the Driver’s Safety computer system. While it is certainly possible, rarely will the DMV waive the 10-day rule. If the client has missed the 10-day deadline a late hearing request can be made explaining why the deadline should be extended in the particular case. Ordinary hardship is not an excuse, but rather the request must demonstrate a failure on the part of the officer regarding serving the notice timely or a failure on the Department. It is not uncommon for individuals to contact DMV directly to request their hearing only to be misadvised regarding the need for such a request. Driver Safety will often excuse such a mistake where it can be established that a DMV representative misadvised an individual during the 10-day period causing the request to be made untimely. Missing the deadline for requesting the hearing or failing to ensure receipt of the request by the DMV will prejudice the client and could subject the attorney to discipline.
The hearing will be conducted at a place designated by the department “as close as practicable to the place where the arrest occurred, unless the parties agree to a different location.” [VC § 13558(b)].
If the Driver Safety Office nearest the arrest location is inconvenient to the client and counsel, a request for a transfer to a closer office can be made. The department will often grant such a request if they will not need the live testimony of the officer or other witness; conversely, of course, if counsel plans to subpoena the officer, witness fees will increase.
The issues to be considered at the administrative hearing are set forth in VC §§ 13558(c)(2) and 13557(b)(3):
1. Did the officer have reasonable cause to believe the individual was driving a vehicle in violation of VC §§ 23152 or 23153?
2. Was the person lawfully arrested? Or Detained in the case of a violation of 23136?
3. Was the person driving a vehicle with 0.08% blood-alcohol; .05 in the case of a person under the age of 21; .01 in the case of a person under 21 by a PAS device; .01 for a person on probation; .04 for a commercial driver;
If the hearing is for a refusal, the first two issues remain the same, and two others replace the third as per § 13557(b)(1):
3. Was the person properly advised of the consequences of the refusal?
4. Did the person refuse to submit to, or fail to complete, the test?
Notably, the issue of probable cause to arrest for drunk driving opens the door to cross-examination of the officer as to the entire range of symptoms observed: driving, appearance, field sobriety tests, statements, breath test, etc.
Finally, the client who has received a four-month administrative per se suspension may wish to consider a procedure by which the suspension period can be reduced to one month, followed by issuance of a work-restricted license. This involves enrollment in a first-offender DUI program, submission of an SR-22 (proof of insurance), and a $125 fee. [See VC § 13353.7(a)].