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DMV & The 10 Day Rule

The Officer took your license at the scene of the arrest and gave you a pink piece of paper in its place upon your release (allowing you to drive unrestricted for 30 days). 90 DUI arrests out of 100 occur this way.

Why? Because, California law allows law enforcement to suspend your privilege to drive immediately upon suspicion that you are DUI.

Exceptions:

  1. Out of State Licenses- California has no jurisdiction to take another State's property. The out of state license holder still needs a DMV hearing requested, if not, they will lose the right to drive in California and if their home state is a member of Compac, their home state will suspend their license upon California's request.
  2. Drug DUI- When the officer believes that you are solely under the influence of a drug that is not alcohol.
  3. When you blow under .08% - alcohol level at the station.

THE 10 DAY RULE: You can stop the suspension; the specific office of the Department of Driver Safety, which handles the law enforcement agency that stopped you, must be called and notified within 10 calendar days of the date of arrest, that you desire an APS hearing and stay of suspension (this is separate from the Court hearing) to contest the suspension. They will send you a longer lasting temporary license and set a date for that hearing. On the day of the hearing, they will present evidence and your attorney will argue errors & insufficiencies, found within the documents to destabilize the DMV's case in an effort to win the hearing and get you back your license.

Main Hearing Issues:

  • Lawfulness of Detention- lack of sufficient observations, as stated in the police report to establish probable cause or reasonable suspicion to detain you.
  • Lawfulness of Arrest- lack of sufficient observations as stated in the police report to establish probable cause to arrest you.
  • Whether you were .08% or greater alcohol level or
  • Refusal to take a test- Whether you were properly admonished as to the penalties associated with a refusal and whether you actually refused or failed to complete a chemical test.

***Needing to drive for job, health or any other reason is not a hearing issue and will not be entertained by the DMV.

Note: under these basic issues, there are dozens of subordinate issues that can win the hearing. Additionally, all defenses available to you for the Court are available at the DMV hearing as well.

We have won DMV hearings for a variety of errors that we have found. They are too numerous to mention; suffice it to say, they range anywhere from the Officer forgetting to check a box; sign his name; put the city on the form where he signed his name; stating the vehicle code only, as to why you were stopped; rising alcohol defense; calibration of the machine; chain of custody; the list is almost infinite.

A win at the DMV hearing - they'll send you a letter called a 'set aside' and you may get your license back with no suspension from the DMV.

A Loss at the DMV hearing - in the event of a loss at the DMV hearing, they will suspend your license for a certain period of time depending upon if you have any prior DUI, Wet Reckless Driving convictions or DMV APS Hearing suspensions in the past 10 years or if you were a refusal to take a chemical test or a person under 21. All of these facts bare upon the term of suspension and how long it will take for you to be able to restrict the license for work and then get it back in full.

  • Under 21 at the time of the arrest- loss of license for 1 year. May restrict if the DMV grants a request per a hardship application (aka critical need application).
  • Refusal to take a test- loss of license for 1 year; no ability to restrict for work.
  • 1st time DUI- 4 or 6 month suspension - may restrict for work after 1 month. Restriction lasts for 5 months. (Alcohol School must be completed by the 6 month mark if there was a conviction in the court system).
  • 2nd time DUI- loss of license for 2 years; with ability to restrict for work after one year of suspension elapses.
  • 3rd or more DUI- 2-3 year License revocation.
  • Commercial Driver - driving a commercial vehicle while DUI- loss of commercial status 1 year in addition to above penalties for class C portion of the license. Additional time if priors are involved.

Note 1: A wet reckless conviction counts as a prior DUI as does a prior APS hearing loss, whether you were convicted of the DUI in the past case or not!

Note 2: On a 2nd or more DUI, even a win at the DMV hearing level will not save your license if you get convicted in court for the DUI that you had your hearing on.

Note 3: Suspension periods may compound if you have more than once issue at the same time ex. a refusal to test on a DUI with a prior is a 2 year suspension etc...

Restricted Licenses - unlike a suspended license, it allows the recipient to drive to and from work, within the course & scope of employment and to and from the alcohol school only.

How do I restrict my license if I lose the DMV hearing?

Ans. For 1st time DUI offenses only where the court restricts the license as well, Go to any DMV on the 31st day after suspension starts with:

  1. Sr-22- call your insurance company to issue to Sacramento for the next 3 years.
  2. Proof of Enrollment filed with Sacramento DMV in the appropriate alcohol school.
  3. $125.00 fee

Note: the SR22 needs to be filed whether you win or lose the APS hearing if you are convicted of the DUI in court or if you lose the hearing but have no DUI conviction in court.

Note: on refusals and alcohol levels over .20% there is a 6 month alcohol school . For the .20% There is an Interlock device installation on your vehicle (breath test to start the car) requirement.

These are DMV issues...there may be additional penalties at the Court level upon a DUI or other conviction.

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