The Administrative Suspension and the DMV

California DUI lawyers representing a client before the Department of Motor Vehicles in a so-called "admin per se" case (also called "APS" or, in the case of refusal suspensions, "implied consent") must understand that the laws and rules are quite different from those encountered in the courtroom. Quite simply, the statutes are complex and confusing, the administration political and bureaucratic in the extreme, and the procedures and evidentiary rules almost completely lacking in due process. He will find that his "discovery" may be faxed to him the afternoon before the hearing, that the entire case probably consists of paperwork, and that if he insists on his right of confrontation must subpoena the arresting officer and pay his salary for the privilege. He will also be surprised to find that "prosecutor" and "judge" are one and the same: a DMV employee with no legal training. This "hearing officer" will rule on his own objections, grant himself continuances when he is caught unpre-pared during the hearing (and routinely deny counsel's requests for continuance), and answer to his superiors if his "set aside" rate (per-centage of hearings won by the licensee) is considered too high.

The APS procedures are a morass of unfair rules that have evolved over the years due to the intense political pressures of Mothers Against Drunk Driving (MADD). However, the attorney who learns the intricacies of this bureaucratic jungle and can exploit its weaknesses will find is own "set-aside" rate climbing.


The client arrested for drunk driving who takes a breath test indicating a blood-alcohol concentration of .08% or greater will have his license immediately confiscated by the arresting officer and be served an "Administrative Per Se Order of Suspension/Revocation and Temporary License Endorsement". If a blood, or in the rare case a urine, sample is withdrawn, the consequences are the same: the license will be confiscated and the order served even though the eventual results will not be known for some time. See Vehicle Code § 23612. And if the client is accused of refusing to submit to chemical testing, the license will similarly be seized and suspended with more severe consequences. If the officer fails to take the license or serve the order, the DMV will subsequently mail the order to the individual. The document served by the officer serves as (1) a notice of the administrative suspension, and (2) a 30-day temporary permit to drive, and (3) notice of the right to request an administrative hearing within 10 days.

This action is taken pursuant to Veh C § 13353.2 and 13382. The latter statute provides:

(a) If the chemical test results for a person who has been arrested for a violation of Section 23152 or 25153, show that the person has 0.08 percent or more, by weight, of alcohol in the person's blood, or if the person has been arrested for a violation of Section 23140, the chemical test results show that the person has 0.05 percent or more, by weight, of alcohol in the person's blood, the peace officer, acting on behalf of the department, shall serve a notice of order of suspension or revocation of the person's privilege to operate a motor vehicle personally on the arrested person.

(b) If the peace officer serves the notice of order suspension or revocation, the peace officer shall take possession of any driver's license issued by this state which is held by the person. When the officer takes possession of a valid driver's license, the officer shall issue, on behalf of the department, a temporary driver's license. The temporary driver's license shall be an endorsement on the notice of the order of suspension or revocation and shall be valid for 30 days from the date of arrest.

Driver's Guide #1

The Administrative Suspension and the DMV

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.

Driver's Guide #2

The Administrative Suspension and the DMV

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As of this writing, the individual has ten days after service of the order within which to contact a local branch of the DTVIV's Office of Driver Safety and request a hearing.

Note: Previously, the licensee was given 30 days within which to request a hearing, but this was unilaterally shortened by the Department to ten days to decrease the number of requests and, thus, the growing caseload. See Vehicle Code § 13558(d). If the department cannot schedule a hearing within the 30 days and the applicant has made the request within ten days of notice of suspension, he will be granted a stay of the suspension. The stay of suspension in such a situation is not simply "departmental policy", but is required by law: Vehicle Code § 13558(e) mandate the extension.

The hearing will be conducted at a place designated by the department "as close as practicable to the place where the arrest occurred, unless the parties agree to a different location." [Veh C § 13558(b)] If the Driver Safety office nearest the arrest location is inconvenient to the client and counsel, a request for a transfer to a closer office can be made. The department will often grant such a request if they will not need the live testimony of the officer or other witness; conversely, of course, if counsel plans to subpoena the officer, witness fees will increase.

The issues at the administrative hearing are set forth in Veh C § 13558(c)(2) and 13557(b)(2):

  1. Did the officer have reasonable cause to believe the individual was driving a vehicle in violation of Veh C § 23152 or 23153?
  2. Was the person lawfully arrested?
  3. Was the person driving a vehicle with .08% blood-alcohol?

If the hearing is for a refusal, the first two issues remain the same, and two others replace the third as per § 13557(b)(1):

  1. Was the person properly advised of the consequences of the refusal?
  2. Did the person refuse to submit to, or fail to complete, the test?

It should be noted, that the issue of probable cause to arrest for drunk driving opens the door to cross-examination of the officer as to the entire range of symptoms observed: driving, appearance, field sobriety tests, statements, breath test, and the like.

Finally, the client who has received a 4-month admin per se suspension may wish to consider a procedure by which the suspension period can be reduced to 1 month, followed by issuance of a 5-month work-restricted license. This involves enrollment in a first offender DUI program, submission of an SR-22 (proof of insurance) and a $100 fee.