An arrest for DUI with a blood alcohol level (BAC) over 0.08% triggers two entirely separate proceedings: 1) a DMV administrative per se hearing/determination with possible license suspension and 2) a criminal hearing that also carries a possible license suspension. It can happen that the DMV suspends a driver’s license pursuant to the DMV administrative per se determination and then a court conviction on the DUI triggers another license suspension. Usually, these suspensions will run concurrently, but not always.

How can a driver essentially be punished twice for the same offense? Isn’t this double jeopardy? Well, according to the United States Supreme Court, it is not. (Hudson v. United States, 522 U.S. 93 (1997).) The reasoning behind the Supreme Court’s decision has to do with the nature of the “punishment.”

The DMV suspension is considered a sanction that is civil rather than criminal. The California Courts have held that the statutory provisions concerning the DMV administrative per se license suspension have the intent to protect the public rather than punish the licensee. Therefore, when a driver’s license is suspended administratively by the DMV, the driver is not being criminally punished. You might be thinking….well, if it walks like a duck…. but the courts have reasoned otherwise.

Back to the Supreme Court: Once upon a time, federal law following United States v. Halper, 490 U.S. 435 (1989), barred as double jeopardy, civil sanctions on top of criminal punishment when the civil sanction was clearly designed to deter or punish. However, this double jeopardy defense in administrative/criminal matters was for all intents, reversed in Hudson v. United States, 522 U.S. 93 (1997). In Hudson, the U.S. Supreme Court found that civil sanctions did not constitute punishment and thus did not violate the double jeopardy clause. A sanction qualifies as punishment for double jeopardy purposes only if the legislature intended the penalty to be criminal in nature or if, “‘by the clearest proof,’” the purpose or effect of the penalty is so punitive as to transform it into a criminal penalty. Even in the days when Halper was the law of the land, the California courts allowed the two separate suspensions on the basis that the DMV suspension was not designed to deter or punish the driver.   In any case, the Hudson decision ended any chance of a challenge to the California courts’ position on this issue.

So, what mechanism creates this double license suspension? Not every DUI arrest and conviction ends in two separate suspensions, but it can happen. When a person is convicted of DUI by the criminal court, the court must notify the DMV of the conviction. Vehicle Code section 13352(a)(1) mandates that upon receipt of the abstract of this conviction from the court, the DMV is to immediately suspend the driver’s license for six months. This is wholly separate from the Admin Per Se hearing and is not within the DMV’s control to control in any way. In other words, the DMV must suspend the license regardless of any previous administrative per se suspension.

It seems entirely unfair that a driver could have his or her license suspended twice but it can and does happen. It is important to contact an attorney experienced in defending DUI arrests and charges in order to avoid any unexpected consequences of the two separate proceedings (the administrative and the criminal) that are triggered by a DUI arrest.