DMV FAQs

Should a DMV hearing be scheduled within 10 days of receiving my temporary license?

In the overwhelming majority of California DUI arrests, police use what is known as the stop and snatch law which allows a police officer to take a person's standard picture driver's license and issue them a 30 day temporary license. This is known as the Administrative Per Se or APS suspension law. Issuing this 30 day APS license, to someone who is being charged with a DUI, initiates the process by DMV to suspend that person's license.

Anyone who is issued a 30 day temporary license must contact DMV within ten days of receiving the temporary license and request a hearing. It is advisable for the request to be made by a DUI attorney because other processes can be dealt with at that time. Failure to request this hearing will result in an automatic suspension/restriction of that person's license regardless of the potential merits of their case. In short, although a DMV hearing may not occur for months, the request for a DMV hearing must be made within ten days of receiving the notice. This request must be made to the Driver Safety Division of DMV and not your local DMV office.

As an experienced DUI lawyer will confirm, no negative consequences occur when DMV is contacted and a hearing is requested within ten days following the date of arrest. Similarly, a DUI attorney will be able to delineate a number of negative consequences that can and probably will occur if you do not request a DMV hearing within ten days and then at a later time determine that you actually have a defense that could have been raised at DMV. Do not allow a clerk at DMV to talk you out of scheduling a hearing. In many instances they are poorly informed and are unaware of the numerous defenses that can be raised successfully at a DMV hearing. Remember, a DMV hearing can always be canceled.

Even if the request for a DMV hearing is made beyond the ten day period, a DUI attorney may be able to get a the hearing at DMV even though there may not be a right to a postponement or a delay of the of the suspension.

How is the 10 days calculated?

The ten day calculation can be extended if the tenth day falls on a weekend or a holiday. In those cases, the request should be made on the very next business day following the weekend or holiday. An argument can also be made that the ten day period does not necessarily begin on the date of the arrest (which in many instances can be before midnight) but rather on the day the person physically receives the temporary license which is generally when they receive all of their property back from jail personnel on their exit from jail. In an abundance of caution, always have your DUI attorney contact DMV as soon as possible and never wait until the tenth day.

Which drivers qualify for receiving the 30 day APS temporary license?

There are four general categories of drivers who will qualify for the issuance of a 30 day temporary license. A DUI defense attorney can explain, in detail, the impact of the 30 day temporary license and the processes that occur immediately thereafter. First, drivers who exhibit some evidence that their blood alcohol concentrations (BAC) were .08% or higher at the time of driving. Second, for those under 21 years of age or over 21 of age, drivers who exhibit some evidence that they were at a .01% or higher BAC (zero tolerance). Third, drivers under 21 years of age who refused to take or fail to complete a portable alcohol sensor test (PAS). Fourth, drivers 21 years or older who refuse to take or fail to complete a mandatory chemical test (generally, a breath or blood test other than the portable breath test).

For those under 21, with a .01% BAC, and no prior conviction or adverse APS action within ten years of the current offense date, the DMV will attempt to suspend their license for one year. After the initial thirty days, this individual is eligible to apply for a critical need to drive license. An individual's chances for receiving a critical need to drive license is substantially enhanced by having a DUI attorney participate in this process.

If the individual who is under 21 has one or more prior conviction or adverse administrative action within the past ten years, the suspension is also one year in length and this person is not eligible for a critical need to drive license.

For those 21 years or older that provide some evidence of having a BAC of .08% or higher, if the individual has no prior conviction or prior administrative action within ten years prior to the current offense date, the DMV will suspend their license for four months which can be reduced to 30 days followed by a five month period of restricted driving to, from and during work, as well as to and from a DUI program.

If a person 21 years or older has one or more prior convictions or adverse administrative actions within ten years prior to the current offense date, the DMV will suspend their license for one year. These individuals are eligible to apply for a restricted license with the installation of an Ignition Interlock Device (IID) after an initial ninety days suspension. A DUI lawyer can provide you with all of the details necessary to acquire an IID and provide you with all of the information as to local providers.

Drivers who refuse a chemical test

Drivers who refuse to take a chemical test, i.e., breath or blood, and have no prior convictions or adverse DMV actions, will incur a license suspension for one year and there is no eligibility for a restricted license during that year.

Drivers who refuse to take a chemical test and have one prior conviction or adverse DMV action within ten years of the current offense date, will have their license suspended for two years with no eligibility for a restricted license.

Drivers who refuse to take a chemical test and who have two or more convictions or adverse DMV administrative actions or a combination thereof, within ten years prior to the current offense, will have their license suspended for three years and there is no eligibility for a restricted license.

The DMV hearing

Although there are a myriad of sub-issues involved in a DMV hearing, the primary issues are:  
 

(1) Did the police officer have reasonable cause to believe that you were driving in violation of the DUI law?

(2) Were you lawfully arrested?

(3) Were you driving with a .08% blood alcohol concentration or higher?

(4) If DMV alleges that you refused to take or failed to complete a required chemical test, then an alternative issue will be (a) whether you refused to submit to or did not complete, a required chemical test after being requested to do so by a police officer and (b) whether you were told that your driving privilege would be suspended or revoked if you refused to take or complete the mandatory test.