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    3.  | Understand DUI Probation Suspensions

About DUI Probation Suspensions

Any motorist on probation for a DUI offense is prohibited from driving with any measurable blood alcohol concentration (BAC). Anyone caught with a BAC of .01 percent or greater while on DUI probation will lose his or her license for a year. A DUI probation suspension becomes effective 30 days after the motorist is served with the suspension order (usually by a cop making a traffic stop).

Are you at risk of a DUI suspension? Turn to Beat DMV, a division of the Law Office of Rodney Gould in Sherman Oaks. Call 818-570-6989 or complete our intake form to schedule a consultation with an attorney.

The Fine Print

Section 23600(b)(2) prohibits anyone on probation for a DUI offense from driving with any measurable amount of alcohol in their system. Section 13353.2(a)(4) requires the Department of Motor Vehicles to suspend the license of any motorist found to have been driving with a BAC of .01 percent or greater.

A DUI probation suspension lasts one year (Section 13353.3(a)(2)(A)), but the motorist may be eligible for an ignition interlock restricted license after 90 days if he or she is convicted of DUI as well. (Section 13353.3(a)(2)(B), Section 13352.) In what appears to be a legislative oversight, there is currently no restricted license available for a motorist on a DUI probation suspension if the motorist is not also convicted of DUI, as will be the case for most BACs below .08 percent.

Technically, your license is suspended as soon as the police officer confiscates your license and serves you with the notice of suspension/revocation under Section 13380. However, there is a built-in 30-day stay of the suspension to give you time to request a hearing and make the suspension constitutional. Within five business days of the arrest or detention, the police officer must prepare a sworn statement of all the facts supporting the decision to serve the suspension/revocation order. (Section 13380.) (A late-prepared sworn statement may create a defense to the entire case.)

DMV is supposed to conduct an internal review of the report to decide if the suspension/revocation is warranted (Section 13557), but experienced DMV attorneys question whether a meaningful review ever takes place. DMV is supposed to rescind the suspension/revocation unless it finds three facts to be true (Section 13357(b)(3)):

  • The peace officer had reasonable cause to believe the motorist violated the DUI laws.
  • The motorist was placed under arrest or lawfully detained.
  • The motorist had been driving with a BAC of .01 percent or greater while on DUI probation.

These are the same three issues the DMV must establish if you request a hearing to challenge the suspension (Section 13358(c)(2)), and they are the same three issues that we take to a superior court judge in a writ of mandate action.

Sources

VC 13352, VC 13353.2, VC 13352, VC 13353.2, VC 13353.3, 13557, VC 13380, VC 23600

See Also

  • How to Win Your Admin Per Se (APS) Hearing
  • Winning DMV Writ Issue #12
  • Get a Stay of Your Suspension