DMV Hearing For Suspension Or Revocation Of  Driver’s License

By:  Roman P. Mosqueda, Esq.

            The Department of Motor Vehicle determines whether a ground exists for the suspension or revocation of a person’s privilege to operate a motor vehicle in California.

            Indeed, the DMV is mandated to suspend or revoke a person’s driver’s license in any of the following circumstances:

1.   driving a motor vehicle when the person had 0.08 percent or more, by weight, of alcohol in his or her blood, under Section 13353.2(a)(1) of the Vehicle Code;

2.  driving a motor vehicle while under 21 years of age with blood-alcohol concentration of 0.01 percent or greater, under Section 13353.2(a)(2) of the Vehicle Code; and

3.  refusing the police officer’s request to submit to, or failing to complete, a chemical test, after being arrested for driving under the influence of alcohol and/or drug, under Section 13353(a), of  the Vehicle Code;

In any of the above-stated circumstances, a police officer serves a notice of order or revocation of a person’s privilege to operate a motor vehicle personally on the arrested person, takes possession of the driver’s license, and issues a temporary driver’s license endorsed on the aforesaid notice, which is valid for 30 days from the date of arrest. 

The police officer shall immediately forward a copy of the completed notice of order of suspension or revocation form and the driver’s license to the DMV.  Aforesaid Form (DS 367) is entitled “Age 21 and Older Administrative Per Se Suspension/ Revocation Order and Temporary Driver License,” for drivers over 21 years of age.

DMV Review Of Suspension

Or Revocation Order:

            The DMV is required to review the determination of a police or peace officer relating to any person who has received a notice of order of suspension or revocation of the person’s privilege to operate a motor vehicle.

            It shall consider the sworn report submitted by the police officer and any other evidence accompanying the report in its review thereof.  And if the DMV determines in its review of the issuance of an order of suspension or revocation that the relevant facts have been proved by a preponderance of the evidence, it shall sustain the order of suspension or revocation.

            Otherwise, it shall rescind the order of suspension or revocation and return or reissue the person’s driver’s license. The determination of the DMV upon administrative review of the order of suspension or revocation is final, unless a hearing is requested pursuant to Section 13558 of the Vehicle Code.

Periods Of Suspension And

Revocation Of Diver’s License:

            A first offense of driving with a blood alcohol content (BAC) of 0.08 percent will result in a 4-month suspension of driving privileges, under Section 13353.3(b)(1) of the Vehicle Code

            A second or subsequent offense within seven (7) years of a separate violation of driving under the influence, including such a charge but reduced to reckless driving, or vehicular manslaughter, or driving under the influence by a person under 21 years of age with a BAC of 0.01 percent or more, which resulted in a conviction, or separate administrative determination finding driving under the influence, or refusal to submit to or failure to complete, a chemical test, will result in a 1-year suspension under Section 13353.3(b)(2) of the Vehicle Code.

            And a first offense of refusal to submit to, or failure to complete, a chemical test  will result  in a 1-year suspension, under Section 13353(a)(1) of the Vehicle Code.   A second offense, within 7 years of a separate violation of driving under the influence, or refusal to submit to a chemical test, will result in a 2-year revocation, under Section 13353(a)(2) of the Vehicle Code.  And three or more offenses of refusal or failure to complete a chemical test within 7 years of any combination of the above violations, convictions or separate administrative determinations will result in a 3-year revocation, under Section 13353(a)(3) of the Vehicle code. 

Section 13558 Hearing On

Suspension Or Revocation:

            Pursuant to Section 13558 of the Vehicle Code, any person, who has received a notice of an order of suspension or revocation of the person’s privilege to operate a motor vehicle as stated earlier, may request a hearing on the suspension or revocation.

            If the person wishes to have a hearing before the effective date of the order of suspension or revocation, the request for a hearing shall be made within 10 days of the receipt of the notice of the order of suspension or revocation.

            Indeed, the aforesaid Form DS 367 states that: “You have 10 days from receipt of this notice to request a hearing to show that the suspension or revocation is not justified.”  It continues to state that:  “The suspension or revocation shall not be stayed (delayed) unless you request a hearing within 10 days from the issue date of this order and DMV will provide a hearing before the effective date of the suspension or revocation and make a determination.”

            In a petition for writ of mandate against the DMV filed by this Author, a Thai lady driver was served with a notice of suspension for 2 years for failure to complete a chemical test, having been convicted with a prior DUI within 7 years.  On her own, she requested for a Section 13558 hearing.

            At the administrative hearing on May 7, 2004, she was provided with a Thai interpreter, but appeared without counsel.  At the hearing, she testified that she did not refuse the breath test;  she tried blowing about five (5) times; she wanted to try some more, but was prevented to do so; she was tired and worked late, etc.

            Still, the Hearing Officer found in the Administrative Per Se – Refusal Notification of Findings and Decision dated May 19, 2004,  that she failed to complete a chemical test, after being requested to do so by a police officer.

            From the decision of the Hearing Officer, the person (respondent) may seek departmental (DMV) review of the decision, by submitting a written request with a $120 fee within 15 days from the date of the decision.

            Alternatively, the respondent may request a court review by writ with the Superior Court in his or her County of residence within 34 days from date of the decision.

            As the CALTRANS slogan goes:  “Arrive alive, don’t drink and drive.”  And keep your license to drive!

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            (The Author, Roman P. Mosqueda, trained as a prosecutor with the Los Angeles City Attorney’s Office under the Trial Advocacy Program of the LA County Bar Association and has defended numerous DUI clients in more than 20 years of criminal defense practice)