In California, if you are administratively suspended for a DUI or suspended for a DUI after a court conviction, you may be able to obtain a restricted license that permits you to drive under some, or most circumstances. The nuances of the laws with respect to obtaining a restricted license after a DUI related suspension, is quite vast, so some of what you read in this article may not apply to all situations and there may be an exception to some of the rules. In some cases, a restricted license is not possible. Therefore, this website article is only a guide. To confirm if you are eligible to obtain a restricted license, you should speak to an experienced DUI attorney. Attorney Ann Gottesman has helped many of her clients obtain restricted licenses or, at times, avoid a suspension or action entirely, resulting in the client’s license being fully protected.
In this article, Ann will explain what a driver may need to know to get a restricted license after a DUI. She will discuss what exactly happens after a DUI arrest, the eligibility requirements for a restricted license, and where and when you can drive with a restricted license. If, after reading this article, you still have more questions about this topic, you are invited to call the Law Office of Ann Gottesman directly for a free consultation. Ann is here to assist you!
What happens after a DUI arrest?
If a police officer suspects you of DUI after making contact, he/she will typically request you complete field sobriety tests and possibly a preliminary alcohol screening test, referred to as a PAS test. If arrested, you will be told that you are required under implied consent law to provide a breath or blood test. Officers always ask drivers to perform field sobriety tests when they suspect impairment. While you are not legally required to perform FSTs (with some exceptions), failure to do the FSTs could result in the prosecution using your refusal to complete the tests as consciousness of guilt in trial. However, when it comes to the PAS test, you have a right to REFUSE to take the test. This means that failure to provide a breath test prior to arrest can NOT be used against you in a trial. In fact, the officer is supposed to tell the driver that he has a right to refuse the preliminary breath test. Only if a driver is arrested, does the law require he or she provide a blood or breath test. Therefore, it is almost always beneficial to the driver to politely refuse the PAS test. (Remember, there are exceptions to almost everything in the law, so check with Ann to see what laws apply to your specific case.)
When a police officer arrests you for DUI, he/she will confiscate your license, provide you with a (usually pink) temporary license that is only good for 30 days, and notify the DMV. Subsequently, the DMV will suspend your driver’s license 30 days after your arrest.
If you request a hearing to contest the suspension within 10 days of the arrest, then the DMV will hold off on any suspension until there is a hearing and a decision. If you win the DMV hearing, then there will be no APS (administrative per se) suspension. If you lose the hearing, then the suspension will be issued. You have a right to appeal this decision. During the time between a driver’s arrest and the DMV hearing date (which can sometimes take months!), the driver will have full privileges with respect to their driver’s license. A “stay” will be issued so that there is no suspension during this interim period (unless, of course, your license is suspended for a different reason unrelated to the DUI arrest).
After arrest, you will most often be taken to a police station, and then booked. You will be released after you several hours, up to 12 hours. If you are taken to the hospital for a blood test and have any injuries, the officer may release you to the hospital and simply give you a citation without booking you. The arresting officer has discretion on whether to book a subject, release that person in the field with a ticket, or in cases of injuries to a victim, bail may be required.
DUI DMV Hearing-Administrative Per Se
To get back your driver's license, you should request a DMV hearing (Administrative Per Se “APS” hearing) within ten calendar days after the arrest. If you don't, the DMV will automatically suspend your license without a hearing.
If you win the DMV hearing, you will get back your license at no cost. If you do not, the DMV will issue the suspension notice that will state the length of the suspension.
Currently, DMV hearings are conducted over the phone due to the coronavirus crisis. While in-person APS hearings are preferred, there is no way to insist on them now.
DMV hearings are informal. Unlike court hearings, they are not presided over by a judge who is also an attorney. DMV (or “APS”) hearings are presided over by administrative judges who do not have a law degree. In most cases, the primary purpose of these hearings is to determine if the driver was lawfully arrested (did the officer have reasonable cause to believe the driver was under the influence of drugs or alcohol or a combination of both) and was he/she driving with a .08 percent BAC or higher? In cases where the driver refused to agree to take a chemical test, the DMV will decide if the driver refused a chemical test after being properly admonished. For a young driver under the age of 21, the DMV will decide he/she was driving with any measurable amount of alcohol. For anyone unlucky enough to be suspected of DUI while driving a commercial vehicle, the DMV will determine if the driver was driving with a .04 or higher BAC. Finding the answers to be affirmative in any of these scenarios will result in a suspension term ranging from 4 months to one year or longer if it is not a first offense within 10 years.
DMV Hearing versus Court Case
The DMV can only impose administrative penalties such as suspending, revoking or restricting your license. A criminal court judge can impose criminal penalties such as jail time, prison time, probation, and fines.
The DMV hearing and its outcome is completely separate from the criminal court case. In most situations they have no impact on one another. However, if you obtain a not-guilty verdict (an acquittal) in court on a .01, .08, or .04 BAC or higher charge, that verdict can reverse an APS suspension. (See Helmandollar v. DMV (1992) 7 Cal.App.4th 52.)
Even if you lose the DMV hearing and do not obtain an acquittal in court, you may still be eligible for a restricted license. Work restricted and IID (ignition interlock device) restricted licenses can help people keep their jobs and continuing driving even if a suspension is issued.
Call attorney Ann Gottesman to discuss how the facts of your case will effect your driving privileges.
DUI Criminal Court Trial
The first stage of a DUI case in criminal court is commonly referred to as 'the arraignment.' In this stage, your charges will be read out to you and provided in a written complaint (usually the attorney waives the reading of the complaint) and you will be asked to take a plea. Usually, the plea at arraignment is a NOT-GUILTY plea.
Then there may pretrial hearings where your attorney obtains discovery, files motions, negotiates with the prosecutor if appropriate and investigates the case.
If no resolution is reached, the case will go to trial. If it is a felony DUI, there will be a preliminary hearing where the DA will present the arresting officer and any witnesses they believe are necessary to prove to the judge that there is sufficient evidence to proceed to trial. If the evidence is insufficient the court will dismiss the case. The defense attorney can file a 995 motion to dismiss if the preliminary hearing judge holds the accused to answer. A different judge will decide on how to rule on the 995 motion. If the case proceeds to trial there will be a second “arraignment” where the DA will file an information alleging the charges for trial.
In a misdemeanor DUI, the case will go to the trial court without a preliminary hearing. There will be “402” motions in both felony and misdemeanor jury or court trials that address legal issue that the parties anticipate will come up during the trial.
The trial will begin with jury selection. The there will be an opening statement from the prosecutor followed by the defense. The prosecution will then present their case in chief. The defense goes last. After the defense rests the DA gets to talk to the jury one last time in their rebuttal. Since the government has the burden of proof the law lets them have the last word.
Note that the standard of proof in California criminal cases is on the prosecution, and the burden of proof is beyond a reasonable doubt. The defendant is given a presumption of innocence and has NO burden to prove he or she is innocent.
During the trial the defense attorney may present witnesses, such as a toxicologist, FST expert or the accused him/herself. Some of the most common defense issues that arise in trial in a California DUI case include:
- Rising blood alcohol
- Faulty BAC testing kits
- Insufficient evidence of impairment
- Constitutional violations
- Mouth alcohol
- Non-compliance with Title 17 Regulations on Blood and Breath Testing
- Unreliable tests
- Improperly administered Field Sobriety Tests
- No driving
- Drinking after driving
If you are acquitted by the jury or the judge (in case of a court trial), you will avoid a conviction-triggered suspension by the DMV. (A Dui conviction triggers a second suspension.)
If you lose your case, and are convicted you will have a separate suspension that may or may not overlap. On a first offense .08 BAC case the court triggered suspension is 6 months, but you will likely be eligible for a restricted license. A DUI is a priorable offense, which means that its penalties increase with each subsequent charge within the period.
Sometimes, your attorney may help you secure a plea bargain. Subsequently, you will plead guilty to a less serious offense, such as wet reckless, dry reckless, or in some cases you may be eligible for diversion. The primary benefit of a plea bargain is that you will face less severe penalties than what you would have faced if you had been convicted for DUI. Whether it is in your best interest to accept a plea bargain and waive your constitutional rights to a trial will depend on the facts of your case, the evidence and what the terms of the plea would be. Never plead guilty to any criminal offense without consulting with an experienced lawyer.
Requirements for a Restricted License after DUI Suspension
To qualify for a restricted license, you must meet the following requirements:
For a work restricted license:
- Serve a driver’s license suspension period of a minimum of thirty days (“hard” suspension period)
- Enroll in a California DMV/Court approved DUI school
- Pay a $125 fee at a local DMV office
- Purchase SR-22 insurance from a licensed provider
If you've met all these requirements, all you need to do is go to your local DMV office and request the work restricted license. Then, you will receive your restricted license immediately. A work-restricted license only permits you to drive to and from work, for any work-related purpose, and to and from the DUI class.
Not everyone who has their driver’s license suspended by the DMV for a DUI will be eligible for a work-restricted license. Make sure you contact an experienced DUI lawyer to find out your options for a restricted license.
For an IID restricted license, you must do the following:
- Enroll in a California DMV approved DUI school
- Pay a $125 fee at a local DMV office
- Purchase SR-22 insurance from a licensed provider
- Install the IID device on your vehicle
Notice that for the IID restricted license you do NOT have to serve a 30 day hard suspension. You can obtain the IID restricted license on the very first day the suspension starts. You will be allowed to drive anywhere, anytime and for any purpose. The ONLY restriction is that you can only drive a vehicle with the IID installed. There is an exception if you need to drive an employer’s vehicle while working.
1. 30-day Driver’s License Suspension Period Required For Work Restricted License
You must serve a driver’s license suspension period of at least 30 days to be eligible for a restricted license. If you are caught driving during this suspension period, you may face a new misdemeanor charge and face jail time under Vehicle Code section 14601.2.
The suspension periods imposed by either the court or the DMV vary depending on the type of DUI charges. Below, we list the suspension periods for different types of charges:
- A first time DUI triggers a court-imposed license suspension period of six months, and a DMV suspension period of four months
- A second time DUI conviction triggers a two year suspension on your driver's license, and the DMV imposes a one year suspension period.
- A third time DUI will result in a court-imposed driver's license suspension period of three years (up to a maximum of 10 years) and a DMV suspension period of one year.
As per Vehicle Code section 13353.2, only individuals who had a blood alcohol content above the legal limit will be facing a possible suspension by the DMV irrespective of a court conviction. The DMV does not issue a suspension for drug-only DUIs. If your BAC wasn't over the legal limit (i.e., .08, .04, .01 percent), the DMV will not suspend your license without a court conviction. If you requested an APS hearing and the test results come back showing you were under the legal limit, the suspension will be “set aside.”
2. Enroll in a DUI School
You must enroll in an alcohol education program to be considered eligible for a restricted license. Currently, there are approximately 500 DUI schools in California. California used to only to allow in-person DUI programs. However, with the ongoing coronavirus pandemic, DUI education programs are conducted remotely.
Typically, if you have been convicted for DUI, the court will order you to attend a DUI school. Although there are numerous DUI schools, some of them are not state-certified. Do your diligence. Do not waste your time attending a program that isn't state-certified. It won’t be counted.
The length and cost of the DUI educational program vary depending on the type of charge. For instance, the approximate cost of a DUI educational program for a first time offender with a BAC of less than 0.20 is $643, and the length is around three months. On the other hand, the average cost of a DUI school for a repeat offender with a BAC exceeding 0.20 is $1500, and the length is approximately 18 months.
If the judge orders you to attend a DUI school, you must enroll within 21 days. You will also need to show proof that you have enrolled in a DUI school when applying for a restricted license.
Typically, the DUI educational provider will send both the DMV and the court the proof of enrollment certificate. However, you cannot trust that the court will get a copy unless you give your defense attorney a copy to provide to the court on your behalf or you provide the proof of enrollment/completion yourself. Once you complete the program, you will receive a certificate of completion.
3. Pay a $125 Fee at the DMV
When applying for a restricted license, you will be required to pay a $125 fee at your local DMV office. You will pay this fee when processing your application. This fee will cover the costs of your application. There aren’t any other hidden fees.
4. Purchase SR-22 Insurance
You will be required to purchase SR-22 insurance from a licensed provider. SR-22 insurance is not a type of insurance product, contrary to what the name suggests. Simply put, SR-22 insurance is a form verifying that you have liability insurance. Your insurance company will file this form with the DMV. You can also obtain an SR22 policy from a different broker than the one that provided you with your liability insurance.
The primary purpose of SR-22 insurance is to enable the DMV to confirm that you've met the minimum auto liability coverage requirements.
The SR22 can usually be purchase by phone and is sent electronically to the DMV.
Enroll in a Court-Ordered Rehabilitation Program
Sometimes, the court may order you to enroll in a rehabilitation program. Some of these programs include:
- Medical treatment –If the defendant needs medical detox from alcohol or drugs,
- Outpatient treatment – Here, the rehab provider enables you to participate in therapy, counseling, and detox while at your home. This treatment program is better for individuals who are medically stable and are highly motivated to reach sobriety.
- Inpatient treatment – Inpatient treatment is also referred to as residential treatment. It is the most intensive treatment program. You will be expected to live at the rehab center full time while receiving counseling, prescription medication if applicable, and therapy.
Typically, the judge will order you to enroll in a rehabilitation program if he/she believes that you have a serious alcohol or drug addiction problem AND you are facing a felony or multiple DUI case. Individuals who receive multiple DUI convictions are most likely to be ordered to enroll in these programs. However, such programs are not required by the DMV.
Is Everyone Eligible for a Restricted License?
Not everyone who has been arrested or convicted for DUI is eligible to receive a restricted license. According to the DMV, you do not qualify for a restricted license if:
- You were driving on a revoked or suspended license at the time you were arrested for DUI and that issue has not been resolved
- You refused to take a DUI chemical test after you’ve been arrested and admonished proper.
- You are under 21 years of age (you may be eligible for a critical need license, however)
Is it Possible to Get a Restricted License after a Subsequent DUI?
Yes, you will still be eligible for a restricted license if you have been arrested or convicted for subsequent DUI.
In some cases, involving subsequent DUIs, the judge will impose a hard suspension. You will most likely get a hard suspension if there are certain aggravating factors in your case, such as:
- Having a BAC of 0.20% or higher
- Causing an accident and injury while driving under the influence
- Having a child who is below 14 years old inside your car when you were arrested for a multiple DUI
- Engaging in reckless driving
If the judge imposes a hard suspension, you will not be able to drive during this period.
Is it Possible to Get a Restricted Commercial Driver’s License?
No, it is not possible to get a restricted commercial driver’s license. Restricted licenses only apply to personal driving privileges. You cannot get a restricted license for commercial purposes.
Take note that the California BAC limit for Commercial Driver’s License holders is 0.04%. If you reach or exceed this limit, you will be arrested for DUI if driving a commercial vehicle at the time. However, if you are suspended or convicted of a DUI after driving in your personal vehicle and your BAC was a .08 or higher, your commercial license will still be suspended for one year. On a second DUI your commercial license will be suspended for life. Driving a non-commercial vehicle with a .04 or less is NOT a DUI.
In sum, if you are a commercial driver and have been convicted of any DUI, your CDL will be suspended for at least one year. You will still face this suspension period even if you did not drive a commercial vehicle at the arrest time. If you are in such a situation, the only alternative to restore your driving privileges is to downgrade to a non-commercial class M (motorcycle) or class C (car) and apply for a restricted license. Or, rather, you can wait for the suspension period to end and reapply for a new CDL. A second DUI conviction within 10 years (arrest date to arrest date) will result in a life-time revocation of your commercial driver’s license no matter what vehicle you were driving.
Applying for an IID Restricted License
You can opt for an IID restricted license. Generally, this is a faster route to restoring your driving privileges, because, as stated previously, you do not have to wait for the 30-day suspension period to lapse.
The court can order you to install an IID inside your car, especially if you’ve been convicted of second or multiple DUI. You will have no choice but to install one before applying for a restricted license in such a situation. The length of the court-imposed IID installation period is 6 – 36 months. The DMV will also require you to get an IID when applying for a restricted license if you are a repeat DUI offender.
An IID is a mini-breathalyzer instrument, about the size of a cell phone. This instrument is usually installed on your car’s steering column.
You will be required to blow into the IID before you start driving. If you do not do so, your vehicle won’t start. Once you start driving, the IID will request you for another sample within the first 15 minutes and then randomly after every 45 minutes. You will have around six minutes to provide these samples – which is enough time to pull over if you believe you cannot safely provide one while driving. If you don't provide these samples, the IID will indicate a ‘fail’ on its log.
Note that IIDs are designed to ensure it is only you who provides the breath sample. Additionally, the IID will detect and record any attempts to tamper with or disconnect it.
You will be personally responsible for the costs of IID installation and maintenance. The cost of an IID in California is approximately $70 plus tax every month. Many providers will waive the installation fee. Once you’ve installed the IID, you should take it for servicing every 60 days.
Make sure you choose an authorized IID installation company. A DUI lawyer will be able to give you guidance and information on when and who to call to set up the IID installation.
Getting a Restricted License After a Wet Reckless
Remember that you can enter into a plea bargain with the prosecution. As a result, in some cases, you may be offered a wet reckless charge or an even lesser charge.
The term ‘wet reckless’ is simply a nickname for reckless driving that involves alcohol or drugs, albeit levels that do not amount to impairment. The primary benefits of a wet reckless over a DUI include:
- No court-imposed driver’s license suspension period
- Shorter jail sentence, which may range between 5 – 90 days but usually there is no jail
- No IID requirement
- Shorter DUI educational program whose period may be approximately six weeks or even no class at all
- Lower fines
- Shorter probation period of one to 2 years
Even though a wet reckless does not have any court-imposed license suspension period, if you lost the DMV hearing and want a restricted license, you will still have to meet the requirements to obtain a restricted license. These may include enrolling in a DUI school, purchasing SR-22 insurance, installing an IID and paying the application fee. (The period of restriction is less if there is no court triggered suspension.) A wet reckless conviction will also result in 2 points on your driving record.
Call Pasadena DUI Attorney Ann Gottesman
Get in touch with Ann at The Law Office of Ann Gottesman if you or your loved one has been arrested for a DUI and need aggressive legal representation. She will help you build a robust defense strategy and do everything she can to protect or restore your driving privileges. Call Ann today at 626-710-4021 for a free consultation.