Implied Consent Law – What does Admin Per se Suspension of your Driver’s License mean?
Under the Implied Consent Law if a person is arrested for driving under the influence of alcohol, or detained if under 21 for the presence alcohol in their system of .01% or more, they are required to a take either a breath test or a blood test, or a PAS test if under 211 to determine their blood alcohol level, and the presence of drugs if those are suspected. If the result of the breath test is .08 % or above; or the arresting officer in the case of a blood test believes the blood alcohol level will be .08% or above; or will be 05% or above, under section 23140; or you refuse to take a test, your driver’s license will be immediately confiscated and you will be served with a notice of suspension which also will serve as a temporary license for 30 days until the suspension is invoked.
This order is termed an, “Administrative Per Se Order of Suspension/Revocation and Temporary License Endorsement,” also called a DMV DS-367 form. To contest the suspension a request for a hearing must be transmitted to DMV within 10 calendar days.2
The police officer after confiscating the license must complete a form which is called an “Officer’s Statement,” which is part of the DS 367 form. This part contains the reasons for the suspension which includes the evidence of driving; probable cause for the arrest; an assertion of an alcohol level of .08 % or greater, or.05% or greater under section 23140, or a refusal to take or complete a chemical test. After completion the officer is required to send the form to DMV within 5 working days, a fact that is often not done and unfortunately there is usually no attempt to enforce the requirement from DMV, and no remedy for the licensee.
Once in possession of the DS 367 form DMV is required to review it, and determine if there is an adequate evidentiary basis to suspend the person’s license. If the test results were not available due to a blood test then this determination must await those results.3 Once those are received than a decision is made and if the evidence is sufficient the person’s license is suspended for four months if a first time offense.4 If there exists prior convictions for section 23152 (misdemeanor driving under the influence), 23153 (felony driving under the influence with an injury accident), or 23103 within the meaning of 23103.5 (wet reckless) of the California Vehicle Code then the suspension is for at least one year.
If the suspension is for a refusal or failure to complete a chemical test then the suspension will be for one year.5 If a person has one or two prior violations within 10 years of section 23152 or 23153 or 23103/23103.5, then the suspension or revocation is two or three years. Prior refusal violations; combinations of prior driving under the influence violations, and prior refusal violations have the same effect on increasing the suspension or revocation.
1 PAS Test, Preliminary Alcohol Screen test, a portable breath test device
2 Sections 13353.2, 13353, 23612(e), 13382 of the California Vehicular Code
3 Section 13353.2(d) of the California Vehicle Code
4 Section 13353.3(b) of the California Vehicle Code
5 Section 13353(a)(1) of the California Vehicle Code