In 1990, California joined 28 other states to authorize a law requiring the immediate suspension of a person’s driving privilege who is arrested for an alcohol-related DUI. The Administrative Per Se Law mandates the “on the spot” suspension of an accused person’s driver license based upon a Law Enforcement Officer’s belief that the person was operating a motor vehicle with an blood alcohol concentration of .08% or greater. Even in those cases where a driver has submitted to a blood test, and the alcohol level is not known, the arresting officer’s presumption that the blood alcohol level exceeds .08% is enough to trigger the immediate suspension of the driver license.
Currently all 50 states have adopted laws that make it a crime to operate a motor vehicle with a blood alcohol concentration of .08% or greater. For years, many states refused to adopt the .08% standard, but under the Federal Government’s threat to withhold Federal Highway Funds, all states folded to the Government’s pressure and now enforce .08% as the level where a driver is presumed under the influence of alcohol.
The law does not take into consideration the differences inherent in all human beings. It completely ignores that a 250 pound male may not be affected by a .08% blood alcohol concentration at the same level as a 100 pound woman. The Administrative Per Se Law presumes that EVERYONE is impaired by alcohol with a blood alcohol concentration of .08% or greater.
The Administrative Per Se Law blindly commands the suspension of a person’s driver license for driving with a blood alcohol concentration of .08% or greater, or for those who refuse to provide a chemical test upon arrest.
Over the years, the California Legislature has added additional laws to suspend or revoke the driving privilege of drivers who are under the age of 21, or who are on DUI probation, when driving with .01% or greater alcohol in their bloodstream. Without question, the Administrative Per Se Law completely lays waste to the protections we are afforded under the United States Constitution. In fact, many scholars believe that the Administrative Per Se Law is an unintended exception to the Constitution.
What is a Stay of Suspension Under the Administrative Per Se Law?
The greatest argument against the Administrative Per Se Law is that it penalizes a driver without “Due Process.” Under our system of law, a person must not be convicted and punished for committing a crime without being afforded the right to defend themselves.
Recognizing the great weight of what they were doing, The California Legislature claims to have ensured a person’s right to Due Process by allowing the issuance of a 30-day temporary driver license to an accused driver when their regular driver license is seized and suspended by a police officer. The Legislature argues that this temporary driver license allows a driver sufficient time to challenge the suspension of their driver license at an Administrative Per Se/DUI Hearing before the temporary driver license expires.
The theory is great, but the reality is much different. The California Department of Motor Vehicles (DMV) is the quintessential over-worked government agency. In almost every instance, the DMV is not capable of convening an Administrative Per Se/DUI Hearing and rendering a final decision, before the temporary driver license expires.
Based on this, The Administrative Per Se Law mandates that the DMV grant a “Stay of Suspension,” if the driver has made a timely request for an administrative hearing. So, if an accused driver makes contact with the DMV within ten-days of the arrest, and if the DMV is unable to convene an administrative hearing, and communicate a final decision, prior to the suspension of the temporary driver license; the DMV must grant the driver a “Stay of Suspension.” This effectively stops the suspension and allows the driver unrestricted driving privileges until the outcome of the Administrative Per Se Hearing/DUI Hearing.
To be clear, an accused driver is entitled to a Stay of Suspension, but only if they act in accordance with the provisions of the Administrative Per Se Law by contacting the DMV within 10-days of the arrest. In some rare instances, a driver may be able to present a valid argument for why they could not make timely contact with the DMV, however, in almost all instances where the driver fails to make timely contact with the DMV, the Administrative Hearing is forfeit, a Stay of Suspension is denied, and the driver license is suspended.
Understanding all facets of the Administrative Per Se Law is challenging and requires years to master. If you have questions about the Administrative Per Se Law, or protecting your driving rights, call us. We’re here to help.
What are the Penalties Under the Administrative Per Se Law?
The penalties ordered by the DMV for DUI arrests will vary based upon a variety of factors. It is also important to understand that any penalties imposed by the DMV under the Administrative Per Se Law are distinctly separate from any penalties that may be ordered by a criminal court. Essentially, this means a driver can be punished twice for the same event. Unbelievable but true.
As a general rule, the DMV will order the following terms of APS suspension/revocation:
- 1st Offenders: When a driver is arrested for driving with an alcohol level of .08% or greater and has no prior DUI convictions or APS actions (within the preceding 10 years), a 4-month suspension of the driver license is ordered. Following a 30-day period of “hard suspension” the driver becomes eligible for upgrade to a “restricted” driver license which remains in effect for 5 months. There are requirements that must be met before a driver may upgrade to the “restricted” driver license.
- Repeat Offenders: When a driver is arrested for driving with an alcohol level of .08% or greater when they have prior DUI convictions or APS actions within the preceding 10 years, the DMV will order a 1-year suspension of the driving privilege (Provided the driver is not on DUI probation). As of July 2010, a change in the law permits a repeat offender to upgrade to a “restricted” driver license if they fulfill a list of requirements, including the installation of an Ignition Interlock Device. For offenders with only one prior DUI conviction or APS action within the preceding 10 years, the suspended driver must serve a minimum of 90 days of “hard suspension” following the court conviction and fulfill other requirements before the “IID Restriction” will be granted. For offenders with two prior DUI convictions or APS actions within the preceding 10 years, the suspended driver must serve a minimum of 180 days of “hard suspension,” following the court conviction and fulfill other requirements before the “IID Restriction” will be granted. An IID Restriction permits the affected driver to operate a motor vehicle at any time of the day or night provided they are driving a vehicle that is equipped with a Ignition Interlock Device.
- Refusal Offenders: When a driver is arrested for DUI and refuses to submit to a chemical test of their blood or breath, or if a blood sample is taken by force or warrant, a 1-year license suspension is imposed for a 1st A 2-year revocation is imposed for a 2nd offense, and a 3-year revocation is imposed for a 3rd or subsequent offense. During a period of suspension/revocation for refusing a chemical test, there is no provision for a “restricted” driver license. The accused driver must sit out the entire suspension/revocation period.
- Probation Violation Offenders: When a driver who is on court-ordered DUI probation is found to be driving with a blood alcohol concentration of .01% or more, as measured by a preliminary alcohol screening device, or if that driver refuses of fails to complete a test, a 1-year suspension of the driving privilege is ordered. This suspension runs concurrently with any other .08% or greater APS action stemming from the same offense.
- Under 21 Offenders: When a driver who is under the age of 21, is found to be driving a motor vehicle with a blood alcohol concentration of .01% or greater as measured by a preliminary alcohol screening device, or if that driver refuses or fails to complete a test, a 1-year suspension shall be imposed on the driver license. After serving 30 days of “hard suspension,” and after fulfilling certain other requirements, a person under the age of 21 may apply for a “critical need” restricted driver license.
- Commercial Offenders: When a driver holding a commercial “Class A” driver license is arrested for violating the .08% “per se” law in a “non-commercial” vehicle, and having no prior DUI convictions or APS actions, he may relinquish and downgrade the commercial status to a non-commercial driver license. At that point, the driver is subject to all penalties and opportunities for “restricted” driver license listed above. As of September 2008, any commercial driver arrested for a 2nd offense DUI (even if in a non-commercial vehicle) shall have their commercial driver license revoked for life.
Call us Now….. We’re Ready to Protect Your Rights Under the Administrative Per Se Law.
California’s Administrative Per Se Law was enacted to immediately strip drivers of the privilege to drive in this state based upon the simple observations and suspicions of a law enforcement officer.
While the Administrative Per Se Laws of this state provide for a temporary driver license and a “Stay of Suspension,” drivers are still punished and suffer real anguish and real loss even before they are given the privilege of defending themselves. The mere suspicion of a DUI can result in termination of employment, denial of promotion, or the loss of a security clearance. The loss of one’s driver license can make travel difficult and car rental impossible.
At California Drivers Advocates, we understand the full implication of what it means to be arrested for DUI. We know the nightmare that can come with the seizure of your driver license. The Administrative Per Se Law was designed to be one-sided and to grant all the power to the State of California, however, if you fully understand the law, you can act in a timely and professional manner to regain your driver license as soon as possible.
If you are facing any issues with the California DMV under the Administrative Per Se Law, call us. We’re ready to join your team. We’re ready to help you win.