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.08% BAC

The Immediate Suspension or Revocation

Someone arrested on suspicion of driving under the influence of alcohol, may experience California Administrative Law in addition to being charged with violating the Vehicle Code. In 1990, California implemented “Administrative Per Se (APS)” license suspension law. Under APS law, the Department of Motor Vehicles (DMV) is permitted to suspend or revoke the driving privilege of someone who is arrested on suspicion of driving under influence. In order for the DMV to be able to suspend or revoke someone’s driving privilege, the following requirements must be met: 1) the person who is losing their driving privilege must have been arrested; 2) the person arrested must be 21 years of age or older (a different law pertains to drivers under the age of 21); and 3) the person arrested must have a blood alcohol concentration (BAC) of .08% or more or the person must have refused a chemical test upon arrest. Upon arrest, the person’s driver’s license is immediately confiscated and an order of suspension or revocation is served.

Due Process

In order for APS law to comport with the constitutional requirements of due process, the DMV issues a 30-day temporary license that is meant to provide the driver with sufficient time to challenge the suspension through DMV administrative review. Upon review, if the driver is dismissed for insufficient evidence or is never charged with criminal violations, the driver may request an APS dismissal hearing to consider setting aside the associated APS action. However, DMV will impose different license suspensions depending on the person’s history.

The DMV will impose a 4-month license suspension if a driver submits to and “fails” a BAC test and has no prior DUI convictions or APS actions (within 7 years prior to September 20, 2005 and within 10 years thereafter).

The DMV will grant a 5-month restricted license that allows a person only to drive to and from an alcohol treatment program, and to, from and during the course of employment if the following requirements are met: 1) the person has already undergone 30 days of “hard” suspension; 2) the person has demonstrated proof of insurance; 3) the person has shown proof of enrollment in an approved alcohol treatment program; and 4) the person has paid all penalty fees.

The DMV will issue a 1-year suspension on drivers having 1 or more prior DUI convictions or APS actions within 7 years prior to September 20, 2005 and within 10 years thereafter, with no provision for a restricted license.

The DMV will also impose a different suspension depending on whether the person has refused a BAC test. For refusing a BAC test, a 1-year license suspension is imposed for a first offense, a 2-year revocation is imposed for a second refusal, and a 3-year revocation is imposed for a third-or-subsequent refusal (within 7 years prior to September 20, 2005 and within 10 years thereafter). There are no provisions for issuance of a restricted license following a BAC test refusal.

The Separation of Administrative Law and Criminal Law

Administrative Law is separate from Criminal Law. This means that APS applies whether or not someone is in fact charged with committing a crime. This plays out when someone is arrested on suspicion of driving under the influence of alcohol and is never criminally charged. In that scenario, the driver may request an APS dismissal hearing to consider setting aside the associated APS action. On the other hand, if the driver is criminally charged, the driver will need to communicate with the DMV to see about the length of the driving privilege suspension instead of with the courts.

IF YOU HAVE ANY QUESTIONS ABOUT A .08% BAC, CONTACT SAN DIEGO DUI ATTORNEY VIK MONDER AT 619.405.0063 OR VISIT .08% BAC ATTORNEY