California Driving on a Suspended License FAQ

There are a substantial number of ways the California Department of Motor Vehicles can suspend or revoke your driver's license. This means either the DMV or the court has decided that you are NOT allowed to operate a motor vehicle until the suspension or revocation is lifted and your license is reinstated.  Many drivers are told, either by a police officer or a letter in the mail, that their license has been suspended. WHY WOULD YOUR LICENSE BE SUSPENDED?

Here are the main reasons your California driver’s license could be suspended:
1. No Insurance. If you're not insured and get in an accident, your driver's license will be suspended for four years. After one year, it may be returned if you provide proof of insurance to the DMV, and maintain it for the next three years.
2. Failure to Report an accident.
3. Driving under the influence (DWI) conviction. California has some of the toughest DUI laws in the country, and your license will be suspended for six months upon your first conviction. You may petition for a restricted license in some cases (such as when you have a critical need such as work or school). A second and third drunk driving may cause you to lose you your license for two to four years with no ability to drive at all except with an ignition interlock installed on your vehicle.
4. Underage drinking (Zero Tolerance). You'll lose your driver's license for one year or until you turn 18, whichever is later.
5. Failure or refusal of a drug or alcohol test. California's implied consent laws mean that if you refuse a blood, breath, or urine test to avoid getting a drunk driving, your license will be suspended or revoked even if you're innocent of the underlying DUI.
6. Excessive points on driving record. If you have too many points, the California DMV will put you on driving probation for one year, including a license suspension for six months, or revoke your driver's license altogether.  There are ways to fight the points suspension with a hearing requested within 14 days of the notice.
7. Vandalism. Your driver's license will be suspended for one year. If you're too young to drive, your right to apply for a driver's license will be delayed by one year.
8. Failure to appear in court for traffic ticket. This is known as an FTA hold or suspension. If you neither show up nor pay the fine on time, the court will report your failure to appear to the California DMV, and your license may be suspended pending your handling of the ticket.
9. Failure to pay Child Support.  Unfortunately, the only way to get this type of suspension removed is get current on your support payments.

HOW CAN I GET MY LICENSE BACK?
The steps you take to get your license back depend on the reason(s) it was suspended. The following are common reasons and examples of what you might need to do:
If you were convicted of drinking under the influence or drunk driving, DWI:
1. Complete a Mandatory Suspension Period: On the first conviction the court will suspend your driving privilege for six months and require you to complete a DUI program before you can be reinstated.If the DUI occurred in Los Angeles you may be required to have an ignition interlock installed on all vehicles you own or are registered to your address.  If your Blood Alcohol Level (BAC) was .15% or higher and you already had a record of violations for other reasons OR you refused to submit to a chemical test, the court may order you to complete a nine-month or longer program. If your BAC was .20% or higher and the court refers you to an enhanced DUI treatment program, your license will be suspended for 10 months.
2. Pay a Re issuance Fee: Your driver license will be returned to you at the end of the suspension after you pay a $125.00 reissue fee to the DMV and file a Proof of Financial Responsibility (SR-22). The reissue fee is $100.00 if you were under age 21 at the time of violation and were suspended under the Zero Tolerance Law.
3. DUI Treatment Program: Show Proof of enrollment in DUI Treatment Program and a Certificate of Completion (DL-101) once completed.

If you had a physical/mental condition or disorder:
Provide a satisfactory Driver Medical Evaluation (DS-326) and/or other medical information indicating the condition no longer affects the ability to operate an automobile safely.
If you had no car insurance and were involved in an accident:
Complete the mandatory 1-year suspension and pay the re issuance fee of $125.00. File a Proof of Financial Responsibility (SR-22).
If you failed to pay a traffic citation or failed to appear in court for traffic ticket:
1. Pay your citations or appear in court. You will be given an FTP/FTA abstract that says you fulfilled this requirement from the court. 2. Pay the standard re issuance fee of $55.00 (in rare cases it be could as high as $275.00) to the DMV.
WHAT IS AN SR-22?
If your license was suspended for a DUI, getting into a car accident while driving without car insurance, or other similar reasons, you may be required by state law to purchase additional insurance coverage. SR-22 is a form that the insurance company then files with the DMV after you purchase the additional coverage. The insurance company must be licensed by the California Department of Insurance. If you are unable to obtain additional insurance coverage through a licensed insurance company, then check with your state's insurance regulator (California Department of Insurance 1-800-927-HELP) to assist you.  In cases such as DUI and points, a California Attorney can help you to resolve your license issues.

HOW DO I GET A RESTRICTED LICENSE?
Depending on the reason(s) for your suspension, you may be able to obtain a restricted license, which will allow you to drive in to limited places while your license is suspended. For drunk driving, if you have a non-commercial driver license and you show proof of enrollment in a DUI treatment program, you may be able to get a restricted license after a mandatory 30-day suspension to drive to and from the DUI treatment program and/or work. If you qualify for a restricted license, you still need to meet the other requirements and pay a $125.00 reissue fee or $100.00 if you were under age 21 at the time of violation. You can apply for a restricted license in person at your local DMV office.
You can contact the California Department of Motor Vehicles at (800) 777-0133 during normal business hours for the location of the your local DMV and for more information about your particular situation. Please have your driver’s license number and any other information sent to you from the DMV available.
(Courtesy California Courts)

Can You Get A DUI on Private Property?

Many folks arrested for drunk driving are found off the highway, often on some private lot or property.  The question arises whether the law requires that the driver be on "the highway" or public property in order to be in violation of VC 23152 DUI.  According to Matthew Ruff, a DUI Attorney in Torrance the Courts settled this issue finding that a private property arrest is perfectly OK.  The Court said: There is no question that the drunk driver is an "extremely dangerous" person who obviously poses more danger when he or she drives on public streets and highways and encounters the general public in greater numbers. However, regardless of any subjective legislative intent, the objective intent of the Legislature as derived from the language of the pertinent Vehicle Code provisions is that a person who is driving while under the influence of alcohol and/or drugs is always a threat and the purpose of DUI statutes is to prohibit those "extremely dangerous" persons from driving anywhere in California.

Starting in 2012, DMV Can Revoke a License for 10 Years on 3rd DUI

New legislation has authorized the California DMV to revoke a drivers license for 10 years upon a 3rd DUI conviction.  The new law authorizes a Judge to order the revocation in appropriate circumstances, but the revocation will not be automatic.  If the Court does not make the order, the DMV will not take action.  Currently, the revocation is for 3 years, which will be the default period unless the Court makes any additional orders.  If the revocation is imposed , after 5 years the licensee can apply for an early restriction with IID and proof of completion of a DUI school.  California is not the first state to impose such a harsh penalty.  Those facing a third DUI should consult a lawyer to familiarize themselves with other penalties and California DUI laws in general.

How Does a DMV Hearing Work in a California DUI Case?

A DUI arrest inevitably leads to the imposition of a suspension of the driver's license in California.  In order to challenge any suspension the driver must request a DMV hearing to fight the action. In a DMV Administrative Per Se hearing, the DMV bears the burden of proving by a preponderance of the evidence certain facts, including that the driver was operating a vehicle with a blood-alcohol level of 0.08 percent or higher. The DMV may satisfy its burden of proof by using the presumption of Evidence Code in section 664. Procedurally, it is a fairly simple matter for the DMV to introduce the necessary foundational evidence. Evidence Code section 664 creates a rebuttable presumption that blood-alcohol test results recorded on official forms were obtained by following the regulations and guidelines of title 17. The recorded test results are presumptively valid and the DMV is not required to present additional foundational evidence, such as testimony of the arresting officer. With this presumption, the officer’s sworn statement that the breath-testing device recorded a certain blood-alcohol level is sufficient to establish the foundation, even without testimony at the hearing establishing the reliability of the test.

According to Bruce Blythe, a Bakersfield DUI Attorney, Once the DMV establishes its prima facie case by presenting documents contemplated in the statutory scheme, the driver must produce affirmative evidence of the nonexistence of the presumed facts sufficient to shift the burden of proof back to the DMV. The licensee must show, “through cross-examination of the officer or by the introduction of affirmative evidence, that official standards were in any respect not observed. Once such showing has been made, the burden shifts to the DMV to prove that the test was reliable despite the violation.  The failure to shift the burden back to the DMV will invariably result in an upholding of the suspension.

California Fills In The Gap For Second Offense Wet Reckless

Thank goodness the legislature finally changed the law regarding second offender wet reckless convictions.  Prior to 2012, anyone convicted of a second offense DUI could get a restricted license for work after 90 days.  However, if the offense was reduced to a wet reckless the offender had no such option and had to wait a full year.  Finally, the lawmakers realized the injustice and inequity of the law and made the appropriate amendments.  The frustration of many attorneys was off the charts and no remedy was available other than to go back to Court and plead guilty to a full DUI.  It took the state a full year to rectify the laws and fix the inherent problem. How a law can become so convoluted and unfair is yet another sign of how Sacramento always leans towards greater punishment rather than leniency and fairness.

Dealing With An Unfavorable DMV Decision

The decision after a DMV hearing following a DUI arrest can be either a set aside or an uphold of the suspension.  When the decision is unfavorable to the driver the next step can be either to appeal the finding or move on.  For first offenders who took a test the suspension period of four months typically does not justify a decision to appeal the hearing officer's decision.  The driver can usually get a restricted license after waiting 30 days.  Foe second offenders an appeal may be more tenable given the one year
 re-issue date.  In either event the decision must be one that takes into account the costs and benefits of the entire situation.  The alternative to a full scale appeal can be something called a Departmental Review, more information about this approach will be discussed in a future post.

How a Person's Core Body Temperature Can Skew Breath Test Results

Breath testing in DUI cases relies on the presumption that every subject has a "normal" body temperature.  But what if a subject has a fever? One study (Fox & Hayward, 1989) did reveal problems with DUI breath tests for those with higher than normal body temperature levels.  For example, when the core temp was elevated one degree Celsius, the corresponding breath test for alcohol increased by nearly 9 percent. This means that if a person had an elevated body temp and was stopped for drunk driving, his breath test would falsely inflate his true blood alcohol level by almost 10%.  For a .10 level, this would drop him to a .09 and if he blew a .08, his true BAC would actually be .07.

 For more information on this issue, contact DUI Attorney Matthew Ruff who practices in the state of California.

A Bakersfield Speeding Ticket Attorney Explains Trials by Written Declaration

In California, as in many states, a defendant may elect to have a trial by written declaration on any Vehicle Code infraction or speeding ticket. If the clerk  receives from the defendant a written request for a trial by written declaration on or before the appearance date indicated on the notice to appear, the clerk must, within 15 calendar days of receiving the request,extend the appearance date 25 calendar days, and must give or mail the defendant notice of the extended due date on a Request for Trial by Written Declaration with a copy of the Instructions to Defendant and any other required forms. The defendant must file the Request for Trial by Written Declaration with the clerk on or before the appearance date indicated on the notice to appear (or any extended appearance date). This form must be filed in addition to the defendant’s written request for a trial by written declaration, unless that request was made on this form. A defendant who makes this election must submit bail in the amount established in the Uniform Traffic Bail and Penalty Schedule under Veh C§40310 at the time of submitting the declaration.  If the defendant is found not guilty or the charges are otherwise dismissed, the amount of the bail mustbe promptly refunded to the defendant.

On receiving the defendant’s Request for Trial by Written Declaration and bail by the due date, the clerk must deliver or mail to the arresting officer’s agency a Notice and Instructions to Arresting Officer and Officer’s Declaration, with a copy of the notice to appear and a specified return date for receiving the officer’s declaration. On receipt of the officer’s declaration or the close of the return date, the clerk must submit the case file to the court for decision with all declarations and other evidence received.  According to one Bakersfield Speeding Ticket Attorney, testimony and other relevant evidence may be introduced in the form of the notice to appear, a business record or receipt, and the sworn declarations of the arresting officer and of the defendant. After the court decides the case and returns the file and decision, the clerk must immediately mail the Decision and Notice of Decision to the defendant and arresting agency. The defendant may request a trial de novo by filing a Request for New Trial Form within 20 calendar days after the date on which the decision was mailed. The Court clerk must set a trial date within 45 calendar days of receipt of the defendant’s request and deliver or mail to the defendant and to the arresting officer’s agency the Order and Notice to the violator.

The case is closed if the defendant fails to make a timely request for a trial de novo. Although the rules state that a new trial must be set within 45 days of the receipt of the request, the remedy for failure to set within 45 days is not automatic dismissal. For example in one case, a trial was set 57 days after receipt of notice. The court may deny a trial by written declaration to a defendant who does not file a Request for Trial by Written Declaration or deposit bail with the clerk within the specified time limits.  The Judge is not limited to imposing a monetary penalty in the amount of the bail the defendant has deposited with the clerk, unless this amount is the maximum and the only lawful penalty. A person who fails to appear as provided by law may be deemed to have elected to have a trial by written declaration on any alleged Vehicle Code infraction. Relevant evidence may be introduced in the form of a notice to appear, a business record or receipt, a sworn declaration of the arresting officer, or a written statement or letter signed by the defendant. 

Bruce Blythe is a Bakersfield Speeding Ticket Lawyer who practices throughout Kern County and beyond for all criminal, DUI and traffic cases.

Hematocrit Defense in DUI Cases

 Hematocrit represents the fraction of whole blood composed of red blood cells and is correlated with the aqueous content of the blood.  The higher the hematocrit, the lower the concentration of water in the blood and vice versa, according to California DUI Attorney Matthew Ruff.  How does this issue play into a DUI case you may ask?  Put simply, the higher a hematocrit level, the higher a person's blood alcohol concentration.  With breath tests, the normal variation in the hematocrits of test subjects "can produce errors in ...results in the 10-14% range", according to some scientific studies.  When facing a DUI charge, it may be useful to have a test done to determine if this may be an issue. The hematocrit issue can vary the amount of alcohol present in the blood and not all humans are the same.  The breath machines do not factor in this variability.

What is the penalty for a refusal in California?

There are a number of penalties or consequences for DUI charges in California.  Perhaps the most severe of all penalties is that for a refusal to take a chemical test, breath or blood.  In addition to the Court consequences, the DMV will impose harsh sanctions if the driver is found to have refused a breath or blood test after having been arrested for drunk driving

The following are the administrative penalties for a DUI refusal

1. A First refusal within 10 years carries a one year drivers license suspension
2. A second refusal after a DUI conviction, wet reckless or admin per se suspension within 10 years is a 2 year license revocation.
3. A third refusal within 10 years is a 3 year revocation of your driving privilege.

In light of the very severe refusal penalties in California, it is advisable to seek legal representation for any refusal case.