The Administrative Suspension and the DMV

Continued from Page 1...

If the suspension is for a refusal to submit to chemical testing, the authority comes from the "implied consent" provisions of Vehicle Code § 13353 and 23612(e). The latter statute reads in relevant part:

(e) If the person, who has been arrested for a violation of Section 23140, 23152, or 23153, refuses or fails to complete a chemical test or tests, or requests that a blood or urine test be taken, the peace officer, acting on behalf of the department, shall serve the notice of order of suspension or revocation of the person's privilege to operate a motor vehicle personally on the arrested person. The notice shall be on a form provided by the department.

Note: The phrase "or requests that a blood or urine test be taken" allows the officer to confiscate and suspend the license even though the results of a blood or urine test are yet unknown.

After confiscating the arrestee's license and serving him or her with an order of suspension, the arresting officer will complete a document entitled "Officer's Statement-Admin Per Se." This one-page form sets forth the bare minimum facts necessary for the DMV to suspend the license: observation of driving (or statutory exceptions), probable cause, and breath test results. The document is signed under oath by the arresting officer and, if applicable, the breath machine operator. It is then supposed to be forwarded to the Department "immediately"—on or before the end of the fifth ordinary business day following the arrest." [Veh C § 13382(c)] In fact, however, this deadline is routinely ignored with no consequences.

Vehicle Code § 13353.2(d) then provides that the DMV will conduct an automatic administrative review of the suspension. If valid grounds exist-the licensee was driving and the test result was .08% or more according to the officer's report—Veh C § 13353.3(b) provides for a suspension of 4 months. If there are prior convictions within 7 years of Veh C § 23152, 23153, 23103.5 ("wet reckless"), or 23140, or § 191.5 or 192 of the Penal Code, the suspension is for 1 year.

Note: A juvenile "conviction" may be used as a "prior" for purposes of determining the license suspension/revocation period; it may not, however, be used as a sentence enhancement in adult criminal court.

Note also: The existence of the prior conviction will be independently determined by the Department; the fact that it has not been charged and/or pled to in court does not preclude its use in determining the administrative license suspension.

If it is an implied consent suspension for a refusal, Vehicle Code § 13353(a)(1) provides for a one-year suspension; if there are one or two priors within seven years, revocations of two and three years are mandated. Proof of insurance (the "SR-22" form) and an administrative fee is required to reinstate the license after any administrative suspension.