Articles Posted in DUI DMV

One of the potential hazards of a DUI offense is the “Habitual Traffic Offender” designation. Even one DUI combined with other violations within a 12-month period can trigger a habitual traffic offender charge. There are several DUI-related conditions that make a driver a habitual traffic offender:

  • One of the punishments for conviction on a third offense DUIwithin a ten-year period is the habitual traffic offender designation for a period of three years. (Vehicle Code 23546)
  • The same applies to fourth offense DUI (Vehicle Code §23550)

What is a “Per Se” DUI?

What does a DUI “per se” actually mean? “Per se” is a Latin term meaning “by and of itself.” Under California law, a blood alcohol level (BAC) of 0.08% is by and of itself considered driving under the influence. (For some drivers such as those with commerciallicenses, the per se BAC is lower under the law.) It doesn’t matter if the driver is not impaired at all (although this may be unlikely); if his or her BAC tests at 0.08% or above, that driver is – to use another Latin term–ipso facto under the influence.

California DUI law makes it unlawful to drive under the influence of any alcohol beverage (Vehicle Code section 23152(a)) AND to drive with a BAC of 0.08% (Vehicle Code section 23152(b).) Why the two distinctions? Well, under subdivision (a), a person could be arrested and charged even if his or her BAC is under 0.08% if the officer believes the driver is impaired by alcohol. Subdivision (b) is the “per se” part of the DUI law. When a person is arrested for DUI, they are almost always charged under subdivision (a) and (b). The need for a per se law is evident. Without it, drivers would be subject to the officer’s own subjective determination. The inconsistencies in arrests and convictions would pose a problem. Furthermore, having a per se law establishes a cut-off point where a driver is subject to arrest.

Last year saw a new law passed that will require most DUI offenders to install an ignition interlock (IID) device on their vehicle, even first-time DUI offenders. The law is scheduled to go into effect in 2019 and it is anticipated that it will decrease the number of drunk drivers on the road. The authors of the new law claim that the current IID pilot program in four California counties prevented over one million drinking and driving incidents in California from 2010-2015. The DMV found that IIDs are far more effective in preventing repeat DUIs than license suspension.

While the law was enacted because it anticipates a decrease of drunk drivers on the road, the new law may make the life of the DUI offender easier in one respect: It will dispense with the mandatory license suspension for DUI offenders.

Under current law, even the first-time DUI offender, in almost all cases, will end up with their license suspended by the DMV. While the driver may be eligible for a restricted license, allowing them limited driving, after serving a period of license suspension, a DUI certainly puts constraints on the offender’s mobility, especially in car-dependent Southern California.

If you are a licensed professional in California, a DUI conviction could affect your license status. In this age when law enforcement information is immediately shared electronically with the state, which in turn, alerts the state boards that license certain professions, you can be sure the board that license you will learn of your DUI conviction. Typically, the license board will receive notice from the state within 30 days of a conviction. Furthermore, most state licensing boards require current licensees to report any conviction, including DUIs within a certain period of time.

After a DUI conviction, the licensing board will conduct an inquiry and/or investigation. Licensing Boards will usually contact the licensee and ask for his or her explanation of the conviction. Depending on the nature of the conviction and the particular license, the licensing board may conduct an administrative hearing before an administrative judge. This hearing is similar to a court trial but less formal. The licensee has the right to present evidence and have an attorney present to represent him or her. Administrative hearings are serious business, the judges are often tough and the state often will paint the licensee as an alcoholic, based only on the evidence that the licensee received a DUI.

While the statutes governing California professional licenses provide that the conviction must be substantially related to the function and duty of the profession in order to sanction the licensee, the licensing boards take wide latitude in interpreting those grounds. For example, a licensing board could take the position that the profession requires good judgment and driving under the influence demonstrates a lack of judgment. Or, as is often the case, the licensing board makes the argument that the DUI conviction exhibits “unprofessional conduct.” Multiple DUIs or a DUI with aggravating circumstances can, and usually will, result in the suspension or revocation of a professional license. Certain professionals may be subject to stern sanctions after only one DUI.


A big rig carrying a load of steel beams and a crane flipped over on the 101 near San Rafael this past week. The accident, which blocked three of the four lanes, happened at 8 a.m. during the height of rush hour on a Monday morning. Yes, big rigs flip over, our freeways get blocked, sometimes even during rush hour. But there was something striking about this accident: the driver of the big rig had a blood alcohol level at five times the legal limit for commercial drivers. At 8:00 in the morning! Now, that is frightening. Miraculously, no one was seriously injured or killed. The driver was booked on felony DUI charges and. If convicted, he will probably be searching for a new line of work once he serves his sentence.

Although we normally think of the DUI blood alcohol content (BAC) threshold as .08%, for commercial-licensed drivers the limit is lower. Anyone who holds a commercial driver’s license is considered DUI if his or her BAC is .04% or higher. If a driver with a commercial license is convicted of driving with a BAC of over .04%– even if the driver wasn’t driving a commercial vehicle at the time of the DUI arrest—his or her commercial driver’s license will be suspended for at least one year (three years if driving a vehicle carrying hazardous materials). This is a straight suspension on the commercial license, no exceptions. If it is the commercial-licensed drivers second DUI for driving at .04% BAC or above, the law requires that the commercial driver’s license be revoked for life. These laws apply to a commercial driver who is driving under the influence of drugs also.

It is simply a fact that many, if not most, drivers lose at their Administrative Per Se (APS) Hearing. The APS hearing is an administrative hearing and unlike criminal hearings, the driver is not afforded the same due process rights a guaranteed by the Constitution in criminal trials. The legal standards are not as strict in an administrative hearing and the DMV officer who makes the decision about the suspension of the driver’s license to drive sits as prosecutor and judge. While this doesn’t sound very “Constitutional,” the appellate courts have long held that certain Constitutional rights do not apply to administrative hearings.

But you do have the right to challenge the administrative court’s decision. The procedure by which the decision can be challenged is by petitioning a higher court for a Writ of Mandate, also called a Writ of Mandamus. This writ is a civil procedure by which you can petition a court of law to review the administrative court’s decision. If the higher court determines that the administrative decision did not proceed in accordance with the law or that the administrative decision was not supported by the evidence, the higher court can order the administrative court to rehear the matter in accordance with the higher court’s findings or even order the administrative court to reverse its decision.

When challenging a DMV APS hearing finding, the petition for Writ of Mandate is filed with the superior court. This is a civil matter, not criminal.

In my previous post I discussed the DUI arrest process and the fact that when you are arrested for DUI, your license to drive will be immediately suspended by the DMV and you are issued a temporary 30-day license to drive. One of the reasons you receive the temporary license is because you have the right to challenge the DMV suspension of your license at what is called an Administrative Per Se Hearing (APS Hearing).

Even before you worry about the criminal charges, you need to address the DMV suspension of your license because you have only ten days in which you can request an APS hearing before the DMV. The APS hearing is completely separate from the criminal case. Yes, you must defend your DUI on two fronts: the administrative per se sanctions and the criminal charges; they are completely separate from one another. Since the time to request the APS hearing is so short, that should be your first order of business.

You are not required to request or appear for the APS hearing and many of those arrested for DUI do not. If there is no viable defense—that is, the vehicle stop and arrest was lawful and you tested well over .08% BAC—you may chose or your attorney may advise you to forego the APS hearing. If you do not request an APS hearing, your license will be automatically suspended for a period of time that is dependent on the circumstances of your particular DUI (i.e. 1st, 2nd, 3rd or greater DUI, whether you were on probation, and so on). You will also be required by the DMV to attend DUI classes and face other DMV sanctions.

California DMV Administrative Per Se Hearings

As previously discussed on this website (here and here), a DUI arrest results in two separate proceedings: The Administrative Per Se Hearing and a criminal court hearing. Even if the criminal case is dismissed, the driver can still find his or her California driver license suspended by the DMV and be subjected to other administrative orders. How is this? In a nutshell, California law provides that the DMV can suspend the license of a driver who is arrested for a blood alcohol level over the legal limit regardless of any criminal (DUI) proceedings. The process is separate from any criminal court case and essentially gives the DMV as much or more power than a superior court judge. In fact, every year the DMV suspends or revokes the licenses of drivers whose DUI arrest never resulted in criminal charges or whose criminal cases were dismissed for lack of evidence.

Several appellate cases have challenged this process but, for the most part, the DMV hearing regime remains intact. Last year, the California DUI Lawyers Association decided to take another approach. They filed a civil lawsuit on behalf of California taxpayers against the California Department of Motor Vehicles. The lawsuit alleges that DMV Administrative Per Se Hearing Officers have a conflict of interest because not only are these hearing officers the decision maker regarding the suspension (or revocation) of the DUI arrestee’s license but the hearing officer also represents the DMV, in effect, as the DMV’s prosecutor. A fair analogy would be allowing the district attorney to also be the judge in a criminal case. This, the lawsuit contends, is a violation of due process.


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.

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Most people do not realize how much power the California Department of Motor Vehicles has until they are forced to come in contact with them.  Unfortunately this is usually as a result of being arrested for driving under the influence.

In California, the law allows the DMV to conduct their own administrative hearing to determine whether an individual was driving with a blood alcohol of .08 or higher, regardless of the outcome of any criminal proceedings.  Because the DMV administrative hearing is not a criminal hearing, they are not held to the same standard and the individual being accused of DUI is not afforded the same constitutional protections as they are in a criminal proceeding.

The DMV hearing officers who conduct these administrative hearings are not lawyers or judges and are not required to have legal degrees.  They act as both prosecutor and judge when conducting a hearing.  They rely on the information they receive from the arresting agency and on whatever blood alcohol results the agency submits.  Although the hearing officers should be concerned with whether or not the arresting officers followed proper procedures when stopping, detaining and arresting an individual, their conduct at the hearing seems to indicate that they are not.  For example, if a police officer does not have reasonable cause to pull someone over, and it can be proven, the court case would have to be dismissed, regardless of the results of the blood alcohol level of the individual.  The same should apply to the DMV Administrative Hearing but, as evidenced in a recent case in Orange County, the DMV continually ignores police officer errors.  In this particular case, the police officer illegally obtained a test showing that the individual’s blood alcohol was over the legal limit and therefore, the case was thrown out.  However, even in the face of a court ruling that the test was obtained illegally, the DMV chose to ignore this and suspended the individual’s license anyway.

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