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 If a blood, or in the rare case a urine, sample is withdrawn, the consequences are the same: the license will be confiscated and the order served even though the eventual results will not be known for some time.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.