California is an implied consent state, meaning that by signing their licenses, all drivers consented to provide chemical specimens upon the lawful demand of a law enforcement officer. At the same time, no law enforcement officer has the right to force a person to provide a sample, unless the officer has a search warrant for permission to extract a blood sample. However, there are consequences to that refusal, and one such consequence is the potential loss of a drivers’ license.
When criminal cases go to court, the collateral consequences of a criminal conviction are often almost as bad, or even worse, as the direct consequences. For example, many kinds of traffic tickets, especially some speeding and reckless driving citations, cause auto insurance rates to skyrocket. Similarly, most sex crimes, even some nonviolent offenses, require registration on a sex offender list. When it comes to DUI, many people can accept the court supervision and fines, but the collateral consequences in general, and the driving limitations in particular, are much harder to swallow.
The DMV automatically begins license suspension proceedings against persons arrested fro DUI or DUID (driving under the influence of drugs). Ever since a law change in 1990, most law enforcement officers confiscate the defendant’s drivers’ license at the time of arrest and issue a temporary driving permit that is valid for 30 days. But that’s not the most important deadline, because drivers have only ten days to request a hearing and fight the Administrative Per Se suspension. If there is no such request, it is late, or it is not in the proper form, the APS suspension automatically takes effect for the maximum period, which is:
- Four months for a first failure,
- One year for a subsequent failure,
- One year for a first refusal,
- Two years for a second refusal, and
- Three years for a third or subsequent refusal.
After 30 or 60 days, first-time offenders may be eligible for a restricted driving permit that lets them go to and from work, to and from school, to and from court-related appointments, and in a few other limited circumstances; an RDP is generally not an option in a subsequent offense.
The APS hearing is not easy to “win.” Typically, the hearing officer is not a judge or a lawyer but a DMV employee who also serves as prosecutor, jury, and executioner. Moreover, since the APS hearing is not a criminal matter, some constitutional protections, such as the prohibition of self-incriminating testimony, do not apply. Finally, the prosecutor only has to prove that the officer had a legal basis to request a chemical sample.
Bear in mind that there are different degrees of “winning” in court cases. If the evidence is shaky, the hearing officer often reduces the suspension period or probates it. And, if nothing else, the APS hearing gives a defense attorney the chance to question the arresting officer under oath, and this testimony is usually admissible in subsequent proceedings. This free deposition is especially useful in SoCal’s many “closed file” jurisdictions that only allow defense attorneys limited access to the state’s evidence before trial.
Post-Conviction DUI License Suspension
The main difference between “revocation” and “suspension” is that suspended licenses are automatically reinstated once the suspension period expires and the driver completes the proper paperwork, so in California, unlike some other states, drivers do not have to make an additional showing to get their suspended licenses back following DUI convictions.
For first-time offenders, the post-conviction suspension period is a little complicated, because the length varies according to the facts.
- Six Months: This is the default period for drivers’ license suspension.
- Nine Months: Some jurisdictions allow defendants to waive the mandatory 48-hour jail terms if they agree to a longer license suspension.
- APS Credit: If the defendants already served an APS suspension, which is likely, the convicting court will give credit for that time. So, if the defendant served a four month APS suspension and is subsequently convicted, the DMV will reinstate the license two months later.
Once again, most first-time offenders are eligible for RDPs after 30 days of “hard time” (no driving).
California has a 10-year lookback period, meaning that DUI convictions more than ten years old do not count as prior convictions. The subsequent conviction suspension periods are:
- Two years for a second conviction,
- Three years for a third conviction, and
- Four years for any subsequent conviction.
After four DUIs, the DMV often commences drivers’ license revocation proceedings, and to either keep or regain their licenses, drivers must normally prove that they are not a threat to public safety.
Drivers’ license suspension is arguably the most significant hardship in DUI cases. For a free consultation with an experienced criminal defense attorney, contact the Rodriguez Law Group. Mr. Rodriguez is a former prosecutor with decades of experience.