THE KAVINOKY LAW FIRM

There are potentially two kinds of DMV penalties that flow from a California DUI arrest: administrative per se (APS) penalties, and mandatory action penalties. APS penalties are imposed if you either fail to request a DMV hearing within 10 days of your California DUI arrest, or lose your hearing.  If you’ve been arrested for California DUI, please contact the DMV Defense Unit at The Kavinoky Law Firm right away so that we can help you protect your driving privileges.

Mandatory action penalties are imposed by the DMV if you are convicted of DUI in criminal court (violation of Vehicle Code section 23152 or 23153).  These mandatory action penalties do not apply if the defense lawyer is able to plea bargain the charges to a lesser offense, such as a “wet reckless” (Vehicle Code section 23103 pursuant to 23103.5), “dry reckless” (Vehicle Code 23103), exhibition of speed (Vehicle Code 23109), or some other lesser charge.  This is just one of the reasons why a plea to a lesser offense is so valuable.

The length of the DMV APS suspension will vary, depending upon whether you are over 21 or under 21; whether you submit to a chemical test following your arrest or refuse to give a chemical test; and whether you have prior DUI convictions or administrative actions against you.

Drivers 21 and older who give a chemical test will face the following issues at the DMV hearing:

• Did the peace officer have reasonable cause to believe you were driving a motor vehicle in violation of Vehicle Code section 23152 or 23153 (DUI)?
• Were you lawfully arrested?
• Were you driving a motor vehicle when you had .08% or more, by weight, of alcohol in your blood?

If you are 21 or older but refused to give a post-arrest sample of your blood or breath to determine alcohol content, the first two hearing issues are the same, but the third one is replaced with the following two issues instead:

• Were you properly advised of all of the consequences of refusing?
• Did you refuse to submit to, or fail to complete, a chemical test after being so advised?

If the DMV hearing officer (who functions as both prosecutor and judge at the DMV hearing) determines by a preponderance of the evidence that the answer to each question is “yes,” then he or she will issue a Findings and Order that the license is to be suspended.  The period of suspension will vary, depending upon the number of prior DUI convictions.

First Offense with Chemical Test

If this is a first offense, you will have a choice of either a four month suspension, or a 30-day suspension followed by a five month restriction.  During the period of restriction, you can only drive legally to and from the alcohol education program that you must be enrolled in so that you can get the restricted license; and to and from work.

Multiple Offense with Chemical Test

If you don’t request a hearing in time, or you don’t win your hearing, and you have a prior conviction for DUI, you must endure a one-year suspension of your driving privilege, with no opportunity for a restricted license during that time.

Refusal to Test

If you are found to have refused to give a chemical test after being lawfully requested to do so by a peace officer, then the consequences to the driver’s license are even more severe.  In the case of a first-offense, the license will be suspended for one year, with no opportunity to have a restricted license during that time.  In the case of a refusal with a prior conviction that occurred within 10 years (as calculated from arrest date to arrest date), the APS action is a two year revocation, again with no opportunity for a restricted license. If there are two prior convictions within 10 years, then the revocation is for three years.

Under 21

There are also harsh penalties in store for drivers under 21 who drive after consuming any amount of alcohol.  For them, the potential punishment from the DMV APS action is a suspension of their driving privileges for one full year.  There is no automatic opportunity to earn a restricted license, as there is with drivers 21 or older with a first DUI offense. However, drivers who are under 21 years of age and who suffer a DMV APS suspension may get a critical need restricted license if certain conditions are met.  If you or someone you care about is under 21 years old and facing DUI or related charges, or even just an administrative action relating to California’s “zero tolerance” laws, please contact The Kavinoky Law Firm right away at 1-800-NO-CUFFS for a free consultation.