San Diego DUI Attorney

Introduction to This DUI Guide

We see lots of people who have been arrested and charged with driving under the influence.  If you’re like most of our DUI clients, your biggest worry is your ability to drive.  “Can I get a restricted license, at least to drive to work,” is one of the most frequently asked questions we hear.

The answer to that question is often not so simple.  That’s because the DMV will take action against your license through an administrative hearing, often before your case makes it into court.  Then, depending on how your court case resolves, the DMV will take additional action against your license, using a completely separate set of laws.  To complicate matters more, some of the DMV’s administrative actions will overlap with what happens in your court case, while other actions won’t.  Truly, reading the relevant sections of the California Vehicle Code is like reading hieroglyphics.  

We wrote this guide to help you more easily understand what can happen to your license if you have been arrested for a DUI.

THE ADMINISTRATIVE HEARING PROCESS

Stop and Snatch: The Beginning of the DMV’s Administrative Action  

If you are stopped and arrested for driving under the influence in California, the officer will take your physical license (if you hold a California driver’s license) and give you a temporary driver’s license. The temporary license is an 8-1/2 x 11 sheet of pink paper.  The DMV administrative proceedings have just begun.

The pink temporary driver’s license the officer handed you is good for 30 days.  During that time you may drive just as you did before your arrest, without any restrictions whatsoever.  If you do nothing, your license will be suspended after that 30 day period.  The suspension will last for four months.

The arresting officer will send your physical driver’s license to the DMV, along with several other documents notifying the DMV that you have been arrested on suspicion of driving with a blood alcohol level that exceeds the legal limit. 

Being arrested on suspicion of driving with a blood alcohol level and actually being over the legal limit are two very different things. You are therefore entitled to challenge the DMV suspension action.  To make any such challenge you must request a hearing within 10 days of your arrest.  If you fail to make the proper request your license will be suspended after the 30 day period covered by your temporary license.

If the DMV is unable to schedule your hearing within the 30 day temporary permit period, you can have your driving privileges extended until you receive the results of the hearing.

The Administrative Hearing

The hearing is formerly called an “Administrative Per Se Hearing.”  Commonly, the hearing is simply referred to as an APS Hearing.  The DMV has the burden of proving its case against you at an APS Hearing. 

The DMV must prove only three things at the “APS Hearing.”  First, it must prove that the officer had reasonable cause to believe you were driving in violation of the DUI laws.  Second, it must prove that you were lawfully arrested.  And third, it must prove that your blood alcohol level was 0.08% or greater at the time you were driving.

Typically, the DMV won’t call any witnesses to these hearings.  Rather, it usually just relies on the paperwork the arresting officer submitted shortly after your arrest.

Cops are human like everyone else, and they sometimes make mistakes or get things wrong. So you have an absolute right to challenge the version of the facts as written in the officer’s report.  And you also have a right to challenge the blood or breath test results.  Your rights include the ability to subpoena witnesses to the hearing—including the arresting officer if necessary—to testify at the hearing.  In some cases, you might want to hire a forensic alcohol expert to testify that blood alcohol test results are faulty and do not accurately reflect your blood alcohol level at the time you were driving.  And you yourself have the right to testify at the APS Hearing if you choose (and if your lawyer thinks it’s a good idea).

If you are able to refute just one of the three things the DMV has to prove at an APS Hearing, the DMV is required to return your driver’s license to you. 

If the DMV finds against you, it will send you a written notice called “Findings and Decision.”   The Findings and Decision will state the reasons supporting the DMV’s decision.  The Findings and Decision will notify you of the effective date of the suspension, which typically begins about a week after the Findings and Decision is mailed.   

Right to Appeal the DMV’s Suspension Order

You have the right to appeal the DMV’s decision upholding the license suspension if you disagree with its reasons for suspending your license.   You can appeal to the DMV itself or to the Superior Court.  If you appeal the decision to the court, you can request the court to order the DMV to allow you to drive until the court rules on your appeal.    

If the court overturns the DMV’s decision to suspend your license, it will order the DMV to return your license to you—unrestricted.  If the court upholds the DMV’s decision, the restriction will go into effect.

ADDITIONAL SUSPENSIONS AFTER A COURT CONVICTION

Court Suspension

If you are able to avoid a court conviction for DUI, or if you are able to have your DUI charge reduced to a “wet reckless,” there will be no additional driver’s license suspension.   But if you are ultimately convicted of DUI in court, the DMV will take additional action against your license.  This suspension is different than, and in addition to, the APS suspension.   You will receive another notice from the DMV informing you of this suspension.  The length of that suspension will depend on your record.  The following section discusses the length of both APS suspensions and suspensions following a court conviction for DUI.

LENGTH OF DRIVERS LICENSE SUSPENSION

Administrative Per Se (APS) Suspensions

For first time offenders, the APS suspension will last for four months.  If you refused to take a breath or blood test at the time of your arrest the suspension will last for one year.

If you have one or more prior DUI conviction within the last 10 years, or if you have any other APS suspensions on your record within the last 10 years, the suspension will be for one year. 

If you have one prior DUI conviction within the last 10 years, or if you have an APS suspension on your record within the last 10 years, and if you refused to take a blood or breath test, the suspension will be for two years.  If you have more than one prior DUI in the last 10 years, or if you have more than one APS suspension on your record within the last 10 years, and if you refused to take a blood or breath test, the suspension will be for three years.

Court Convictions

The length of suspension following a court conviction depends on the nature of the current DUI conviction and the number of prior alcohol-related convictions on your record during the past 10 years.  Keep in mind, the term “prior conviction” includes convictions for driving under the influence and for wet reckless offenses.

Whether you will qualify to obtain a restricted license following a DUI conviction will depend on the nature of your current conviction, as well as your prior record.  You should be able to find your particular scenario in the following Case Scenarios, describing the length of the suspension and eligibility requirements for a restricted license.

All restrictions allow you to drive to and from work, during the course and scope of employment, and to fulfill any DUI program requirements.

For first time offenses, the suspension period is six months.  You will receive credit against that six month suspension for any actual hard suspension period you served as a result of the APS suspension.   But unlike the APS suspension—which requires a 30 day period of no driving before becoming eligible for a restricted license—you are immediately eligible for a restricted license following your court conviction.   In addition to participating in the DUI program and maintaining proof of automobile insurance, you must pay another fee to the DMV.  

Getting a Restricted Driver’s License

If you are a first time DUI offender, you must be enrolled in a DUI program, submit proof of automobile insurance to the DMV in the form of a SR-22, and pay a reissuance fee.  You will be eligible for a restricted license after serving 30 days of suspension.  In other words, you will be facing a hard suspension of 30 days, during which you cannot drive for any reason, followed by restricted privileges.  The restriction will allow you to drive to and from work, during the course and scope of your employment, and to the DUI program, including any requirements the program imposes.   This restriction will last for five months.

Generally speaking, you are not a first time DUI offender if you have any alcohol related driving offenses within the past 10 years.  This includes any previous DMV administrative actions taken against your license related to alcohol, even if that prior case never went to court.

If you have any qualifying alcohol-related prior convictions within the last 10 years, you will not be eligible for a restricted license.

CASE SCENARIOS

If you are convicted of a DUI in court, the court will send an abstract to the DMV, notifying it that you have suffered a conviction.  The DMV will then impose another suspension.  The length of the suspension will depend on your record.

The following case scenarios describe the length of suspension that will be imposed following a court conviction, as well as your eligibility to obtain a restricted license.

Case #1: First Time DUI with No Prior DUIs in the Past 10 Years

Your license will be suspended for 6 months.  You can obtain a restricted license immediately. To obtain the restriction you will need to enroll in a First Conviction Program, file an SR-22 (proof of insurance) with the DMV, and pay a reissuance fee to the DMV. 

Case #2: First Time DUI with a BAC of 0.20% or Greater

If the court orders you to complete a 9 month DUI program due to your BAC being 0.20% or greater, the DMV will suspend your license for 10 months.  You can obtain a restricted license immediately. To obtain the restriction you will need to enroll in a First Conviction Program, file an SR-22 (proof of insurance) with the DMV, and pay a reissuance fee to the DMV.

Case #3: DUI with One Prior DUI or Wet Reckless Conviction

Your license will be suspended for 2 years.  You may obtain a restricted license after 12 months by enrolling in an 18- or 30-month DUI program, and completing 12 months of the DUI program.   You will also have to file an SR-22 (proof of insurance) with the DMV, and pay a reissuance fee to the DMV.

Or, if your DUI was not drug-related, and if you were not on DUI probation at the time of the offense, you may obtain a restricted license after 90 days by enrolling in an 18- or 30-month DUI program, and install an ignition interlock device on your vehicle.  You will also have to file an SR-22 (proof of insurance) with the DMV, and pay a reissuance fee to the DMV.

Case #4: DUI with Two Prior DUI or Wet Reckless Convictions

Your license will be suspended for 3 years.  You may obtain a restricted license after 12 months (or after 6 months if your DUI was drug-related) by enrolling in an 18- or 30-month DUI program, completing 12 months of the DUI program, and installing an ignition interlock devise on your vehicle.  You will also have to file an SR-22 (proof of insurance) with the DMV, and pay a reissuance fee to the DMV.

Case #5: DUI with Three or More Prior DUI or Wet Reckless Convictions

Your license will be suspended for 4 years.  You may obtain a restricted license after 12 months by enrolling in an 18- or 30-month DUI program, completing 12 months of the DUI program, and installing an ignition interlock devise on your vehicle.  You will also have to file an SR-22 (proof of insurance) with the DMV, and pay a reissuance fee to the DMV.

Case #6:  DUI with Prior Vehicular Manslaughter (non-alcohol related) Conviction

Your license will be suspended for 4 years.  You may obtain a restricted license after 12 months by enrolling in an 18- or 30-month DUI program, completing 12 months of the DUI program, and installing an ignition interlock devise on your vehicle.  You will also have to file an SR-22 (proof of insurance) with the DMV, and pay a reissuance fee to the DMV.

Case #7: DUI with Prior DUI with Injury Conviction

Your license will be suspended for 4 years.  You may obtain a restricted license after 12 months by enrolling in an 18- or 30-month DUI program, completing 12 months of the DUI program, and installing an ignition interlock devise on your vehicle.  You will also have to file an SR-22 (proof of insurance) with the DMV, and pay a reissuance fee to the DMV.

Case #8: DUI with Prior Felony DUI Conviction

Your license will be suspended for 4 years.  You may obtain a restricted license after 12 months by enrolling in an 18- or 30-month DUI program, completing 12 months of the DUI program, and installing an ignition interlock devise on your vehicle.  You will also have to file an SR-22 (proof of insurance) with the DMV, and pay a reissuance fee to the DMV.

Case #9:  DUI with Prior DUI with Injury Following a Vehicular Manslaughter (non-alcohol) Conviction

Your license will be suspended for 4 years.  You may obtain a restricted license after 12 months by enrolling in an 18- or 30-month DUI program, completing 12 months of the DUI program, and installing an ignition interlock devise on your vehicle.  You will also have to file an SR-22 (proof of insurance) with the DMV, and pay a reissuance fee to the DMV.

Case #10: DUI with Injury

Your license will be suspended for 1 year.  You are not eligible for any type of restriction.

Case #11: DUI with Injury with One Prior DUI or Wet Reckless Conviction

Your license will be suspended for 3 years.  You may obtain a restricted license after 12 months by enrolling in an 18- or 30-month DUI program, completing 12 months of the DUI program, and installing an ignition interlock devise on your vehicle.  You will also have to file an SR-22 (proof of insurance) with the DMV, and pay a reissuance fee to the DMV.

Case #12: DUI with Injury with Two or More DUI or Wet Reckless Convictions

Your license will be suspended for 5 years.  You may obtain a restricted license after 12 months by enrolling in an 18- or 30-month DUI program, completing 12 months of the DUI program, and installing an ignition interlock devise on your vehicle.  You will also have to file an SR-22 (proof of insurance) with the DMV, and pay a reissuance fee to the DMV.

Case #13: DUI with Injury with One Prior Felony DUI Conviction

Your license will be suspended for 5 years.  You may obtain a restricted license after 12 months by enrolling in an 18- or 30-month DUI program, completing 12 months of the DUI program, and installing an ignition interlock devise on your vehicle.  You will also have to file an SR-22 (proof of insurance) with the DMV, and pay a reissuance fee to the DMV.

Case #14: DUI with Injury with One Prior Vehicular Manslaughter (non-alcohol related) Conviction

Your license will be suspended for 5 years.  You may obtain a restricted license after 12 months by enrolling in an 18- or 30-month DUI program, completing 12 months of the DUI program, and installing an ignition interlock devise on your vehicle.  You will also have to file an SR-22 (proof of insurance) with the DMV, and pay a reissuance fee to the DMV.

Unable to Find Your Case Scenario?

If you are unable to find your particular case scenario, please feel free to contact our office.  We will be happy to calculate the suspension period you are facing.

Final Remarks

We are in the business of helping people who are facing driving under the influence or other serious criminal charges.   Please feel free to contact our office if you would like to know how we can help you.

ABOUT US

Brian J. White has been defending people against drunk driving and s erious criminal cases for over two decades.  He opened his own firm within months after graduating from Pepperdine Law School in 1991.   Devoting his practice to representing individuals being prosecuted by the State and Federal government, Brian became certified as a criminal law specialist by the California State Bar, Board of Legal Specialization in 2007.   He is an AV rated attorney by the  preeminent peer review firm, Martindale-Hubble, signifying he has achieved excellence in his practice area while remaining highly ethical.  He has been rated as a Super Lawyer since 2012.  

QUICK REFERENCE CHART

License Suspensions Following DUI Court Conviction

Current Conviction

Prior Convictions w/10 Years

Length of Suspension

Is Restriction Available?

When is Restriction Available?

DUI

None

6 months

13352(a)(1)

Yes

Immediately

13352.4

DUI w/BAC 0.20% or greater

None

10 Months

13352.1

Yes

Immediately

13352.1

DUI

One Prior DUI or Wet

2 years

13352(a)(3)

Yes

After 12 months of restriction; Enrollment in 18- or 30-months DUI program; Completion of 12 months of DUI program

13352.5(a)

-OR-

 

After 90 days of restriction; Enrollment in 18- or 30-month DUI program; Installation of Ignition Interlock Device

(Option not available if drug DUI or if on DUI probation at time of offense)

13352(a)(3)(A)-(D)

 

 

 

DUI

Two Prior DUIs or Wets

3 Years

13352(a)(5)

Yes

After 12 months of suspension (or after 6 months if DUI Drugs);

Enrollment in 18- or30- month DUI program; Completion of 12 months of DUI program; Installation of Ignition Interlock Device

13352(a)(5)(A)&(B)

 

DUI

Three or More Prior DUIs or Wets

4 Years

13352(a)(7)

Yes

After 12 months suspension; Enrollment in 18- or 30-month DUI program; Completion of 12 months of DUI program; Installation of Ignition Interlock Device

13352(a)(7)(A)&(B)

DUI

Vehicular Manslaughter (non-alcohol related)

4 Years

13352(a)(7)

Yes

After 12 months suspension; Enrollment in 18- or 30-month DUI program; Completion of 12 months of DUI program; Installation of Ignition Interlock Device

13352(a)(7)(A)&(B)

DUI

DUI with Injury after Felony DUI

4 Years

13352(a)(7)

Yes

After 12 months suspension; Enrollment in 18- or 30-month DUI program; Completion of 12 months of DUI program; Installation of Ignition Interlock Device

13352(a)(7)(A)&(B)

DUI

DUI with Injury after Vehicular Manslaughter (non-alcohol related)

4 Years

13352(a)(7)

Yes

After 12 months suspension; Enrollment in 18- or 30-month DUI program; Completion of 12 months of DUI program; Installation of Ignition Interlock Device

13352(a)(7)(A)&(B)

DUI With Injury

None

1 Year

13352(a)(2)

No

N/A

DUI With Injury

One Prior DUI or Wet

3 years

13352(a)(2)

Yes

After 12 months suspension; Enrollment in 18- or 30-month DUI program; completion of 12 months of DUI program; Installation of Ignition Interlock Device

13352(a)(4)(A)&(B)

DUI With Injury

Two or More DUIs or Wets

5 Years

13352(a)(6)

Yes

After 12 months suspension; Enrollment in 18- or 30-month DUI program; completion of 12 months of DUI program; Installation of Ignition Interlock Device

13352(a)(6)(A)&(B)

DUI With Injury

Felony DUI

5 Years

133552(a)(6)

Yes

After 12 months suspension; Enrollment in 18- or 30-month DUI program; completion of 12 months of DUI program; Installation of Ignition Interlock Device

13352(a)(4)(A)&(B)

DUI With Injury

Vehicular Manslaughter (non-alcohol related)

5 Years

13352(a)(6)

Yes

After 12 months suspension; Enrollment in 18- or 30-month DUI program; completion of 12 months of DUI program; Installation of Ignition Interlock Device

13352(a)(4)(A)&(B)

                 

 

 

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