In this article Los Angeles DUI Defense Lawyer discusses DRIVER’S LICENSE SUSPENSION AFTER A DUI. Click on the links below to go directly to your topic of interest
- PAPERWORK AFTER A DUI ARREST
- DMV HEARINGS RULES and LAKE V. REED CASE
- FIRST DUI LICENSE SUSPENSION: SUMMARY
- LENGTH OF FIRST DUI LICENSE SUSPENSION
- FIRST DUI LICENSE SUSPENSION: RESTRICTED LICENSE
- SECOND DUI LICENSE SUSPENSION: SUMMARY
- SECOND DUI: LENGTH OF SUSPENSION (CVC 13352a3)
- SECOND DUI LICENSE SUSPENSION: RESTRICTED LICENSE
If you were arrested for a DUI, your license could be suspended under DUI license suspension laws. DUI License Suspension laws are not only different depending on the State of Arrest and previous convictions, but also, now, on the California county of arrest. In Los Angeles county, and other 3 counties, you have to install an ignition interlock device in your car to get your driver’s license back after any DUI conviction. In most other California counties there is no such requirement, but you can opt out to install an ignition interlock device to permit driving. The ignition interlock devise is a machine that locks ignition until it received a sample of breath with no alcohol in it.
- DS 367: If you were released by the arresting police officer on your own recognizance, you probably received several documents at the time of your release. The first document is “Age 21 and Older Officer’s Statement”, commonly known as DS-367. This document is also your temporary driver’s license valid for 30 days after the arrest. The DS-367 form will instruct you to contact the DMV within 10 day or lose your right to have a hearing. If you do not contact the DMV, your license will likely be suspended or revoked. The suspension or revocation will be different but often overlapping from court and from the DMV. If you have a conviction and lose a DMV hearing, you will have 2 suspension, for example, on a first offense, the court suspension is 6 month but the DMV suspension is 4 month.
- The DUI Ticket: Another document that you probably received from the police officer upon release is a citation to appear in the Superior Court. The citation lists your charges (most likely a violation of CVC 23152(a) /(b)) and a date to appear in court. The court’s first DUI license suspension takes effect only after a conviction – either by a guilty plea or after a trial. Our office specializes in defending drivers in court and at the DMV. The approach to defending a DUI case in court is very different then from the DMV and involves similar but different issues.
- PROPERTY RECEIPT: Lastly, most people receive a prisoner’s receipt, which is a list of property and the booking information from the jail. The prisoner’s receipt can be used for the impeachment of the officer if it is inaccurate but otherwise it carries little value.
As discussed above, a driver can end up with a suspended license after a DUI arrest by one of two ways. If there is a DUI conviction, the driver will have a DUI License Suspension. If the driver loses a DMV hearing, he or she will have an APS DMV License Suspension. The Administrative Per Se (APS) hearings with the DMV are not court hearings and often are based on the documents submitted to the DMV by the arresting officer after a DUI arrest. Unlike the courts, where live testimony is needed to comply with the Evidence Code, the DMV will only subpoena the officer if the paperwork submitted is missing a signature or has some other deficiency that the DMV needs to fix prior to causing a driver’s license suspension. That is not to say that a police officer can not be forced to come to the hearing. With a proper subpoena and payment to the arresting agency, a driver can have the police officer to come to a DMV hearing.
From the defense perspective, it is a good thing to subpoena the officer if there is a pending DUI because during the hearing, DUI lawyer can cross examine officer and get useful information for a trial. After the APS DMV hearing, a copy of the tape can be obtained and used at trial for impeachment of the DUI arresting officer.
The rules of evidence are very informal and often are completely ignored by the DMV hearing officers. California Supreme Court in 1997 permitted the DMV to admit hearsay statements in violation of the California Evidence Code because the DMV hearings are administrative in nature. In Lake v. Reed, Richard Lake sued the DMV director at the time, Sallie Reed, to force the DMV to abide by the rules of evidence because of the DMV license suspension. The Supreme Court was not convinced by Lake attorney and, relying mostly on Government Code Section 11513, upheld the decision of DMV regarding his driver’s license suspension. GC 11513 permits admission of any relevant evidence as long as responsible persons are accustomed to rely on it in conducting serious affairs”. Here is the summary of holdings and reasons of Lake v. Reed.
FACTS: Lake got into a two car accident. Besides the driver of the other car, there were 2 more witnesses to the collision. Lake appeared to be intoxicated and admitted to driving his car to the police officers who came to the location of the accident.
Held: An unsworn report by a police officer is admissible for an APS hearing, as an exception to the hearsay rule EV1280 as long as it has an admission by the driver that he was driving (EV 1220) statement against self-interest. Moreover, GC11513 permits admission of witnesses statement to explain and supplement driver’s admission. Bottom line: bad idea to talk to the police about who was the driver.
The DMV still has to rely on a sworn report; however, in Lake, another officer filed an unsworn report with witnesses statements who saw Lake driving and Lake’s admission to driving.
Held: The chemical test results (blood or urine) do not have to be sworn under penalty of perjury. The analyst can just sign it.
Department Official Records (DMV record printout) does not have to be sworn either.
The court considers the unsworn blood tests to be “the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs” (GC 11513). This section by the way also overcomes hearsay issues.
Additionally, this document is considered to be “public record exception to the hearsay rule” EV 1280
The court justified relaxation ruled of evidence by relying on legislative intent of providing an efficient mechanism to quickly suspend the driver licenses of those who drink and drive.
California Supreme Court confirmed 3 requirements for suspension of driver’s license after an admin per se hearing:
(1) Police Officer must have reasonable cause to believe the driver was driving under the influence of drugs or alcohol
(2) Driver was lawfully arrested
(3) Driver had a blood alcohol concentration of .08 % or above.
In 2004 California Supreme Court reaffirmed Lake v. Reed in MacDonald v. Gutierrez rulling once again that unsigned copy of a police report attached to DS 367 is fully admissible under GC11513(c) . There is still an argument to be made as to specific statements admissibility from the police report; it is nevertheless clear, that as long as there is sufficient foundation for personal knowledge, many things in the police report are admissible.
REQUIREMENT OF LAWFUL ARREST:
A prerequisite for a lawful arrest is lawful detention. A driver who is not detained lawfully can not lose his license in an admin per se DMV DUI hearing. This law comes directly from case of Gikas v. Zolin 6 Cal. 4th 841. If you believe your were illegally stopped, contact our office for a case review. We can defend your DMV hearing for you.
Los Angeles DUI lawyer can help you with your driver’s license suspension. Los Angeles DUI attorney defended over a thousand of drivers accused of DUI and driving on a suspended license during his 13 years in practice. We can try to help you avoid mandatory jail time on some driving on suspended license tickets. For example, a first DUI license suspension or a 2nd DUI license suspension is considered a more serious charge then a driver’s license suspension for a non-DUI related offense. Often, DUI Attorney Los Angeles can successfully modify the charges to avoid a harsher penalty for driving on a suspended license after a DUI. Call our office to talk to Los Angeles DUI lawyer directly and to get a free attorney consultation about your case.
Most DUI prosecutions also involve hearings under the Administrative Per Se laws with the DMV. The Admin Per Se prosecution is civil in nature and can not result in jail or fines but instead only results in a loss of the driving privilege through DUI License Suspension or DUI License Revocation. The court conviction in itself can have driver’s license consequences. Full analysis of the driver’s license consequences must include discussion of both APS hearing and a court conviction. Here, I explain the consequences of a first offense DUI arrest/conviction on the driver’s license.
A first DUI license suspension can involve a DMV action under Admin Per Se laws (CVC 13353.2), with no priors within 10 years, – that will cause a 4 month suspension of the driving privilege (CVC 13353.3 (b)(1)). In other words, if you have a DMV hearing and lose it, the DMV will suspend your driver’s license for 4 month.
So, if there is only the court conviction, the suspension is 6 month. If there is only an APS action, the suspension is 4 month. If there are both, the suspension is 6 month, because under CVC 13353.3(c), when a driver suffers both, a court conviction and an APS suspension, the period of suspension can not exceed the longer of the two (6 month) and both suspensions must run concurrently.
CAVEAT: if the driver had .20 percent alcohol in his blood and the court required the driver to enroll in a 9 month alcohol education program, the DMV, even on a fist DUI license suspension, can suspend the license for 10 month, so the total suspension will be, the longest of the two – 10 month. (CVC 23538)
If the driver wants to wait out the suspension time, or otherwise is not eligible for a restricted license, he can wait 6 month and provide (1) evidence of insurance (2) evidence of completion of the alcohol education program at that time to receive his regular license back.
AFTER A FIRST OFFENSE DUI IN LOS ANGELES, A DRIVER IS ELIGIBLE TO GET A RESTRICTED DRIVER’S LICENSE TO DRIVE (1) TO AND FROM THE ALCOHOL EDUCATION PROGRAM AND (2) TO AND FROM WORK. Here are the rules.
COURT CONVICTION: The DMV will issue a restricted license under CVC 13352.4 immediately after a court conviction when the driver (1) submits proof of enrollment or completion of an alcohol education program (2) submits proof of insurance (3) pays all fees. So, a driver who had a “set aside” at the DMV, can receive the restricted driver’s license immediately. A driver who, in addition to suffering a court conviction, also lost a DMV hearing, will not be able to receive a restricted license, until 30 days after a first DUI license suspension based on the lost DMV hearing.
DMV ACTION AFTER AN APS HEARING: The DMV can issue a restricted license under CVC 13353.7 after 30 days of suspension for 5 month as long as the driver (1) enrolls into an alcohol program and (2) provided proof of insurance.
So, for those who loose a DMV hearing only, a restricted license is available for 5 month after waiting 30 days. For those only got a conviction from court for a first offense DUI, the restricted license is available right away until the suspension expires in 6 month. For those who lost the DMV hearing and suffered a conviction, the restricted license is available 30 days after the DMV imposes a first offense DUI suspension after a lost APS hearing and the restriction is for 5 month. I am emphasizing “30 days after the DMV imposes a suspension after a lost APS hearing” because, the timing of the APS hearing is key to making sure the license is available right away.
Most DUI prosecutions also involve hearings under the Administrative Per Se laws with the DMV. The Admin Per Se prosecution is civil in nature and can not result in jail or fines but instead only results in a loss of the driving privilege through a suspension or revocation of the driver’s license. The court conviction in itself can have driver’s license consequences. Full analysis of the driver’s license consequence must include discussion of both APS hearing and a court conviction. Here, I explain the consequence of a second offense Los Angeles DUI arrest/conviction on the driver’s license.
A court conviction of most second offense DUI’s in Los Angeles will result in a 2 year suspension of the driving privilege. (CVC 13352(a)(3))
A DMV action under Admin Per Se laws (VC13353.2), with no priors within 10 years, – will result in a 1 years suspension of the driving privilege (CVC 13353.3)(b)(2)). In other words, if you have a DMV hearing and lose it, the DMV will suspend your driver’s license for 1 year because you lost that hearing.
So, if there is only the court conviction, the suspension is 2 years. If there is only an APS action, the suspension is 1 year. If there are both, the suspension is 2 years, because under CVC 13353.3(c), when a driver suffers both, a court conviction and an APS suspension, the period of suspension can not exceed the longer of the two (2 years) and both suspensions must run concurrently.
If the driver wants to wait out the suspension time, or otherwise is not eligible for a restricted license, he can wait 2 years and provide (1) evidence of insurance (2) evidence of completion of the alcohol education program at that time to receive his regular license back.
AFTER A SECOND OFFENSE DUI IN LOS ANGELES, A DRIVER IS ELIGIBLE TO GET A RESTRICTED DRIVER’S LICENSE TO DRIVE (1) TO AND FROM THE ALCOHOL EDUCATION PROGRAM AND (2) TO AND FROM WORK. Here are the rules.
- TRADITIONAL RULE – 2ND DUI CONVICTION: The DMV will issue a restricted license under CVC 13352.4 one years after a court conviction when the driver (1) submits proof of enrollment or completion of an alcohol education program (2) submits proof of insurance (3) pays all fees. So, a driver who had a “set aside” at the DMV, can receive the restricted driver’s license immediately. A driver who, in addition to suffering a court conviction, also lost a DMV hearing, will not be able to receive a restricted license, until 30 days after a suspension based on the lost DMV hearing – here is why:
- DMV ACTION AFTER AN APS HEARING: The DMV does not have the authority to issue a restricted license after an APS hearing when the driver has 2 qualifying convictions within 10 years.
- NEW RULES – 2ND DUI CONVICTION: A relatively new law came into affect permitting a restricted license for a 2nd DUI conviction after 90 days actual suspension as long as the driver will (1) install IID (2) pays fees (3) provides proof of insurance (4) enrolls into an alcohol education program (18 or 30 month). (CVC 13352(a)(3)). ** A VC 23153 conviction requires 1 years actual suspension.** This new law hopes to influence drivers to install an IID after a DUI conviction. Notice that a conviction for a DUI in Los Angeles will require an IID regardless (as part of the CVC 23700 pilot program) so it really does not require anything additional and permits now a restricted license. Unfortunately, the statute permits a restricted license after 90 days only when there is a DUI conviction. There is no provision permitting a restricted license after a lost APS DMV hearing or after a wet/dry reckless conviction. It means that a person who gets a better deal in court (a wet reckless or a dry reckless) will not be getting a restricted license after 90 days if he lost a 2nd APS DMV hearing, and will have to wait 1 year to get an unrestricted license back. The rumor has it that the legislature realized the unusual situation where a person who avoids the DUI conviction is worst off, and will try to fix the problem shortly.
Los Angeles DUI attorney has defended numerous DUI license suspension and will help you defend yours. DUI Los Angeles attorney will go instead of you to the court and to the DMV. The experience and knowledge of the law allows us to get the best deals for our clients and to get your license out of suspension quicker. Please call us (818) 921 7744 anytime for a non-obligatory free consultation with top DUI lawyer Los Angeles. We provide quality representation at an affordable price.
(818) 921 7744 Call anytime to talk directly to Los Angeles DUI Attorney.
YOU MAY ALSO BE INTERESTED IN: