When someone is charged with a DUI offense, there are two separate battles to fight: the DMV and the criminal court case. The DMV will suspend driving privileges within 30 days of an arrest for driving with an alleged blood alcohol content (BAC) over .08 percent, unless an Administrative Per Se (APS) hearing is requested within 10 days of the DUI arrest. The court case commences with the arraignment date, which is usually held within 45 days of arrest. Both cases are held in locations that are the closest, geographically, to the site of the initial DUI arrest.



The DMV and the criminal court case are entirely separate and distinct, with each having little to no effect on the other. However, each of these entities will punish the DUI offender. The DMV will suspend driving privileges. The court will not only suspend driving privileges but will mandate fines, incarceration, and attendance at alcohol education classes. The prevailing view is that there is no double jeopardy issue, as the DMV sanctions are administrative, rather than punitive.

The DMV APS hearing is held in a Driver’s Safety office, administered by a DMV hearing officer who will suspend driving privileges bases on only 3 issues:

1.Did the officer have reasonable cause to believe the individual was driving a vehicle in violation of California Vehicle Code Sections 23152 or 23153?

2.Was the defendant lawfully arrested?

3.Was the defendant driving a vehicle with a BAC of .08 percent or over?

The criminal case is held in a court of law, adjudicated by a lawfully sworn judge, who must follow the California Evidence Code and rules of court. The court case essentially uses the following criteria to convict the defendant of DUI:

1.Driving pattern, following the NHTSA cues of intoxicated driving

2.Physical appearance, reflecting signs of intoxication, such as red, watery eyes, slurred speech, unsteady gait, etc.

3.Performance on field sobriety tests (FST’s), both NHTSA approved and regularly administered (non-approved) FST’s

4.Chemical test results. There are essentially 2 bites at the same apple for criminal prosecutors. The defendant may be charged with 23152(a)-driving with a BAC under .08 percent yet not driving with the caution characteristic of a sober person under the same or similar circumstances OR 23152(b)-the per se charge of driving with a BAC at or above .08 percent. The (a) and (b) counts could even be charged together, convicting the defendant of both counts. The caveat here is that the defendant can only be punished once, although the punishment for either count is equally bad.

The issue that must be driven home the most is this: even if the defendant is found not guilty by way of a dismissal or plea bargain by the criminal court, this has no effect on the DMV case! And if the DMV case is set aside, this has no effect on the court case! The only time these two cases have an effect on one another is where the criminal court declares that the defendant is NOT GUILTY of having a BAC of .08 percent or over. If this happens, the DMV is ordered to reinstate the defendant’s driving privileges.