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Administrative Requirements for Driving Under the Influence Criminal Charges

California’s statutory provisions proscribing the driving of a vehicle while intoxicated by drugs or alcohol is California Vehicle Code sections 23152 and 23153.

Vehicle Code section 23152.

(a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.

(b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.

For purposes of this article and Section 34501.16, percent, by weight, of alcohol in a person's blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.

In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.

(c) It is unlawful for any person who is addicted to the use of any drug to drive a vehicle. This subdivision shall not apply to a person who is participating in a narcotic treatment program approved pursuant to Article 3 (commencing with Section 11875) of Chapter 1 of Part 3 of Division 10.5 of the Health and Safety Code.

(d) It is unlawful for any person who has 0.04 percent or more, by weight, of alcohol in his or her blood to drive a commercial motor vehicle, as defined in Section 15210.

In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.

(e) This section shall become operative on January 1, 1992, and shall remain operative until the director determines that federal regulations adopted pursuant to the Commercial Motor Vehicle Safety Act of 1986 (49 U.S.C. Sec. 2701 et seq.) contained in Section 383.51 or 391.15 of Title 49 of the Code of Federal Regulations do not require the state to prohibit operation of commercial vehicles when the operator has a concentration of alcohol in his or her blood of 0.04 percent by weight or more.

(f) The director shall submit a notice of the determination under subdivision (e) to the Secretary of State, and this section shall be repealed upon the receipt of that notice by the Secretary of State.

California Vehicle Code section 23153 is similar to section 23152, but adding that it is further illegal to do any other illegal act while driving intoxicated by drugs or alcohol. Immediately upon arrest for Vehicle Code section 23152 or 23153, your driver’s license is immediately suspended pursuant to Vehicle Code section 13353.2 (a)(1).

The arresting officer or the Department serves the person with a notice of order of suspension. Vehicle Code section 13353.2, subd. (b); The notice states the reason and statutory grounds for the suspension and explains the driver's right to seek an administrative hearing. Vehicle Code section 13353.2 (c). If the arresting officer serves the notice, the officer also confiscates the driver's license and issues a 30-day temporary license. Vehicle Code section 13382 (b). The Department of Motor Vehicles conducts an automatic internal review of the merits of the suspension or revocation. Vehicle Code section 13557(a).

There is also a separate and concurrent administrative hearing to challenge the automatic revocation of your license. Known as an “Administrative Hearing Per Se” pursuant to Title 13, California Code of Regulations, § 115.01-115.10, it must be requested within 10 days of being served the order of suspension or revocation pursuant to Vehicle Code section 13558(a). This administrative proceeding is regarding the suspension or revocation of your driving privilege only. You are not required to request a DMV hearing. But if you feel the arrest and subsequent revocation was in error, you should request the hearing.

Both the California and Federal Constitutions provide that no person shall be deprived of property without due process of law. Due process of law entitles you to a notice of the action DMV intends to take against your driving privilege and an opportunity to be heard (hearing). The DMV hearing is an administrative proceeding regarding your driving privilege and the circumstances surrounding the arrest, not whether you are innocent or guilty of a criminal act.

The DMV hearing and court trial are independent of each other. The DMV hearing deals with the circumstances surrounding a DUI When a driver has been acquitted of DUI charges in court, a suspension or revocation will be reversed if it is determined by the DMV that the court decision does, in fact, equal an acquittal. A reduction of a DUI charge to reckless driving in the criminal court is separated and/or independent from the administrative proceeding, and does not affect the driving privilege suspension. The DMV hearing officer can only set aside the administrative action against your driving privilege. This decision is separate and/or independent from any criminal charge, sanction, penalty, or decision.

The only issues discussed at the hearing are:

If you took a blood or breath or (if applicable) a urine test:

Did the peace officer have reasonable cause to believe you were driving a motor vehicle in violation of Vehicle Code Section 23140 , 23152 , or 23153 ?
Were you placed under lawful arrest?
Were you driving a motor vehicle when you had 0.08% or more by weight of alcohol in your blood?

If you refused or failed to complete a blood, breath test, or (if applicable) a urine test:

Did the peace officer have reasonable cause to believe you were driving a motor vehicle in violation of Vehicle Code Section 23140 , 23152 , or, 23153 ?
Were you placed under lawful arrest?
Were you told that if you refused to submit to or failed to complete a test of your blood, breath, or (when applicable) urine, your driving privilege would be suspended for one year or revoked for two or three years?
Did you refuse to submit to or failed to complete a blood or breath test, or (if applicable) a urine test after being requested to do so by a peace officer?

Current law may permit a driver a renewed right to a hearing within one year of the arrest date when a DUI charge is dismissed or not filed by a District Attorney due to lack of evidence, or filed, but later dismissed by the court because of insufficient evidence.

If you have a non-commercial driver license and you show proof of enrollment in a DUI treatment program, file proof of financial responsibility and pay (on or after January 1, 2003) a $125 reissue fee after a mandatory 30-day suspension, you may request a restricted license to drive to and from the DUI treatment program and/or to, from, and during work. The reissue fee remains at $100 if you were under age 21 and were suspended under the Zero Tolerance Law pursuant to Vehicle Code §§23136, 13353.1, 13388, 13392.

A Driving Under the Influence (DUI) Program as ordered by the court can be found at the following link: http://www.adp.cahwnet.gov/Criminal_Justice/DUI/pdf/DUI_dir2007.pdf

If you have a commercial driver license and you were not operating a commercial vehicle at the time of the offense and pay (on or after January 1, 2003) a $125 reissue fee after a mandatory 30-day suspension, you may request a restricted license to drive to, from, and during work. The reissue fee remains at $100 if you were under age 21 and were suspended under the Zero Tolerance Law pursuant to Vehicle Code sections 23136, 13353.1, 13388, 13392.

BE ADVISED: Any driver with a second DUI offense within 10 years may submit proof of enrollment in a DUI treatment program, proof of financial responsibility and pay a $100.00 reissue fee one year after the effective date of the suspension to drive to and from an alcohol program and to, from, and during work. Any driver with a third or subsequent DUI offense within 10 years is not entitled to apply for any type of restricted license.