Before breaking this one down, let’s start with a few assumptions. For purposes of this article we are talking about a first time DUI in California charged under California Vehicle Code section 23152(a) or 23152(b).
Not all first time DUI cases are the same and the facts of your case may be different than the hypothetical first time DUI discussed below. This article discusses a common scenario of a first time DUI with no traffic accident or injuries, and no other aggravating factors such as:
- a high blood alcohol level;
- speed enhancement;
- reckless driving;
- children under the age of 14 in the car;
- suspended drivers license;
- refusal of the breathalyzer;
- prior criminal history, etc.
If any of these aggravating circumstances apply to your case, you should contact a California DUI lawyer before reading any further.
Will I lose my California Drivers license on a first time DUI?
Unfortunately, the answer is probably yes. The vast majority of drivers cited for first time DUI in California lose their license for an extended period of time. To find out how long of a suspension you are facing, and to figure out how to beat that suspension, let’s start with a basic overview of the DUI process in California.
Step one is understanding that you actually have to fight your case twice in California when charged with a first time DUI. Assuming you gave a breath or blood sample that was .08 or greater, you need to deal with both the California Court system and the California DMV.
Both systems can and will take your drivers license on a first time DUI, and if you want to have a chance at winning, you need to understand the rules. Remember, to save your license, you need to win twice. You must beat the DMV and not get convicted of DUI in court in order to avoid losing your license.
First time DUI in California, The DMV Hearing
In order to avoid an automatic suspension of your license following an arrest for DUI, you must demand a hearing with the department of motor vehicles within 10 days of your arrest.
At the time of your arrest, the officer physically takes your license under California’s “stop and snatch” provision, and issues you a temporary license and notice of suspension on a pink form known as the DS-367.
Far too many California drivers are lulled into a false sense of security by this pink sheet because they focus on the fact that the temporary license is good for 30 days. While the temporary license is in fact good for 30 days, remember that you only have 10 days to request a hearing and fight the suspension.
So if you don’t take action, you are walking dead between days 11 and 30. You can drive, but come day 31 your license will be suspended and their is nothing you can do to stop it. The request for a hearing MUST be made within the first 10 days or the suspension will begin automatically at the end of the 30 day temporary.
If you are smart enough to request a hearing within 10 days, or if you have retained a California DUI lawyer to make the request on your behalf, you now have a window of opportunity.
Once the request for hearing is properly made, you can also request a stay of the suspension. This means that the suspension will be put on hold and you can continue to drive until the DMV hearing is completed and a ruling is issued. This is usually much longer than 30 days, so simply requesting the hearing and the stay will give you some breathing room.
At the DMV hearing, also known as an APS or Admin per Se hearing, the hearing officer will make findings and determine whether or not the suspension will be imposed. If you lose the hearing, a suspension of 120 days will be imposed. If you win the DMV hearing, you have avoided this first suspension, but you still need to avoid a DUI conviction in court or you will still face a suspension at the time of conviction.
First time DUI in California, The Court Case
If you are convicted of a first time DUI in California under 23152(a) or 23152(b), your license will be suspended for 180 days starting on the date of the conviction. (Note: in some circumstances this suspension can be even longer than 180 days if for example there were injuries or other aggravating factors.)
Getting convicted means that either you went to trial and your were found guilty by a jury or judge, or most likely you entered a plea bargain and took a plea of guilty or no contest. (If you have a DUI conviction, we are expungement lawyers who can help clear this from your record.)
The amount of transparency regarding this suspension varies greatly from county to county in California. Some counties will go so far as to require you to surrender your physical license or sign a sworn affidavit saying you no longer have the license in your possession at the time of your plea or conviction.
Other counties will simply notify you of the suspension and refer you to the DMV.
And worst of all, some counties will completely ignore this suspension and make no reference to it at the time of your plea and sentencing.
But regardless of the local customs in your California courthouse, if you are convicted of 23152(a) or 23152(b), you WILL receive a suspension of 180 days on your California Drivers license starting on the date of your conviction.
In order to avoid this suspension you must avoid the conviction. This could mean getting your case dismissed through negotiation or litigation, a not guilty verdict after trial, or a plea bargain to a lesser charge.
Bottom line on a first time DUI in California
If you want to keep your drivers license on a first time DUI in California, you are going to need to win twice. First, you must set a DMV hearing within 10 days of your arrest and then win that hearing. Second, you need to avoid a conviction for 23152(a) or 23152(b) in court.
If you have any questions about this process or you are interested in discussing representation on your DUI, give me a call at 800-797-8406. I have been practicing DUI law in California for 18 years and I would be happy to help you through this process.
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