Is there any way to avoid a DUI?
It sounds simple, but don’t drink and drive. Take a taxi, designate a driver, walk, call a friend, but no matter what, do not drink and drive.
Can I still be in trouble even if my BAC is below the legal limit?
Possibly, it is also unlawful to drive with your normal faculties impaired (by alcohol and/or drugs). Normal faculties are those faculties of a person, such as the ability to walk, talk, judge distances, drive an automobile, make judgments, act in emergencies, etc.
Do I have to submit to a breath, blood, or urine test?
In California there are enhanced penalties if you refuse to submit to a chemical test after you are arrested. The DMV will suspend your driver’s license for a year (rather than four months) on a first time offense if you are charged with refusal, two years for a second refusal. Even if the refusal enhancement is dropped in the criminal case, it will still be an issue at the DMV proceeding. Moreover, your refusal to submit to a test upon the request of a law enforcement officer is admissible in any criminal proceeding against you as evidence of your consciousness of guilt. By accepting the privilege extended by all 50 states to drive, the courts have determined that you have given your consent to submit to an approved chemical test for the purpose of determining your BAC (or to a urine test for the purpose of detecting the presence of drugs) after you have been arrested. Therefore, when you sign your name on your license, you are saying that if stopped for a possible DUI you will consent to chemical testing after an arrest.
By accepting the privilege extended by the laws of most states to drive, the courts have determined that you have given your consent to submit to an approved chemical or physical test of your breath for the purposes of determining your BAC, and to a urine test for the purposes of detecting the presence of drugs. Therefore, when you sign your name on your license, you are saying that if stopped for a possible DUI, you will accept to take the test.
How can there be two separate proceedings (court and DMV)?
Once you have been arrested, two separate proceedings are initiated, and neither one bears much relation to the other one. Even if your criminal case is reduced or dismissed, you generally still have to battle the DMV in order to keep your license. Similarly a win at the DMV hearing has no bearing on the outcome of your criminal case.
What about my license?
If you have a California license the officer will have seized it and he should have issued you a pink temporary license. Although the temporary license is valid for 30 days from your arrest, you only have 10 days in which to request a DMV hearing (an APS hearing) and a stay on that automatic suspension of your license. Otherwise, your license will automatically be suspended 30 days after your arrest.
If you have an out-of-state license, the officer should not have seized it, although they often do. Generally you should still request a DMV hearing and a stay on the suspension of your privilege to operate a motor vehicle in California, but please call us to discuss the specifics of your situation.
Can I fight the DMV suspension?
Yes, but you must request an APS hearing (Administrative Per Se hearing) and a stay on the suspension of your license within 10 days of your arrest. Generally the APS hearing will be held within about two months of your arrest; as long as your license was valid when you were arrested, you will continue to have full driving privileges until the hearing is held and until then a decision been reissued. If the hearing is won, the DMV will not take any action against your license; if the hearing is lost, the DMV will take the same action they would have taken against your license initially, but at a later date. In other words, the penalties are not increased because you exercised your right to challenge the DMV suspension.
If the DMV hearing is lost, how long will I lose my license?
If the DMV hearing is lost, you will lose your license for 4 months on a first offense (if you are 21 and older), and a year on subsequent offenses, for a first-time refusal (2 years for a second refusal), or if you were on probation for a DUI conviction. Steps can be taken to reduce the 4-month suspension to as little as 30 days. If you refused to submit to a chemical test, or if you were under 21 years old at the time of arrest, you would be facing a one-year suspension for a first offense.