Pink “DMV” ADMINISTRATIVE PER SE SUSPENSION/REVOCATION ORDER AND TEMPORARY DRIVER LICENSE

A San Diego DUI arrest gives the police the right to stop & snatch one’s California driver’s license. If driver has out-of-state license, San Diego DUI officer has no jurisdiction to take that state’s issued license, attorneys point out.

In either case, the San Diego DUI officer is usually required to serve a pink DMV form of paper called a “DS 367.” At that point, it is wise to immediately contact a San Diego DUI Lawyer. San Diego DMV Attorneys know there’s only 10 calendar days to contact DMV.

According to the updated DMV Administrative Per Se Hearings Manual [Chapter 12] for California DMV Hearing Officers [pages 12-2 & 12-3]:

“The form provided by the department to notify DMV and the driver of a DUI violation is a DS 367, AGE 21 AND OLDER OFFICER’S STATEMENT, or DS 367M, UNDER AGE 21 OFFICER’S STATEMENT, or the officer’s pre-approved law enforcement agency form.

The form shall specify clearly the reason and statutory grounds for the action and the right of the driver to request an administrative hearing. (This means the San Diego area agency DUI officer must check a box at the top of the form.)

An administrative review pursuant to § 13557 VC is performed by DMV to determine the action was warranted.

The arresting officer notifies the local Driver Safety Office on or before the end of the fifth ordinary business day after the notice was served to a person detained and or arrested for any of the following reasons:

• The person was driving a motor vehicle when the person had a BAC of 0.08% or more.
• The person was under 21 years of age, was operating a motor vehicle, and had a 8AC of 0.01 % or greater, as measured by a preliminary alcohol screening (PAS) test, or other chemical test.
• The person was driving a vehicle that requires a commercial driver license when the person had a BAC of 0.04% or more.
• The person was driving a motor vehicle when both of the following applied:
• The person was on probation for a violation of §23152 or §23153 VC.
• The person had a BAC of 0.01% or more as measured by a PAS or other chemical test.
• The person refuses to submit to, or fails to complete, a chemical test pursuant to §23612 VC or §13388 or §13389 vc.

An arresting officer is required to serve the driver pursuant to §13382, §13388 or §13389 VC with a copy of the ADMINISTRATIVE PER SE SUSPENSION/REVOCATION ORDER AND TEMPORARY DRIVER LICENSE contained in the DS 367 / 367M form.

The department must generate a new order when the service is not properly provided.

The arresting officer confiscates the California driver license and issues the ADMINISTRATIVE PER SE SUSPENSION/REVOCATION ORDER AND TEMPORARY DRIVER LICENSE, DS 367/DS 367M. The suspension/revocation becomes effective 30 days from the date the order is served. The driver is entitled to a hearing and the notice provides a full explanation of the hearing information.

Pursuant to § 13557 VC, the department shall review the determination made pursuant to §13353, § I3353.1 or § 13353.2 VC relating to any person who has received a notice of an order of suspension or revocation of the person’s privilege to operate a motor vehicle pursuant to §13353, §13353.1, §13353.2, §23612, or §13382 N C, The department shall consider the sworn report submitted by the peace officer pursuant to §23612 or §13380 and any other evidence accompanying the (San Diego area agency DUI ) report.”

The department sustains the suspension/revocation when a review made under §13353.2 VC by a preponderance of the evidence, establishes all of the following facts:

• BAC:
• The peace officer had reasonable cause to believe that the person had been driving a motor vehicle in violation of §23136, §23140, §23152, §23153, or §23154 VC
• The person was placed under arrest or if the alleged violation was of §23136 VC or §23154 VC, the person was lawfully detained

The person was driving a motor vehicle under any of the following circumstances:

• When the person had a BAC of 0.08% or more.
• When the person had a BAC of 0.04% or more when operating a vehicle that requires a commercial driver license.
• When the person was under the age of 21 years and had a BAC of 0.05% or more.
• When the person was under the age of 21 years and had a BAC of 0.0 1% or greater as measured by a PAS or other chemical test.
• When the person had a BAC of 0.01 % or more while on DUI probation for a conviction of §23152 or §23153 VC as measured by a PAS or other chemical test.

REFUSAL:

The department sustains the suspension/revocation when a determination in review made under §13353 or §13353.1 VC by a preponderance of the evidence, establishes all of the following facts:

The peace officer had reasonable cause to believe that the person had been driving a motor vehicle in violation of §23136, §23140, §23152, §23153, or §23154 VC.

• The person was placed under arrest or the person was lawfully detained if the alleged violation was for §23136 VC or §23154 Vc.
• That the person refused or failed to complete the chemical test or tests after being requested by a peace officer. (If the driver, under 21 years of age or driving in violation of §23l54 VC, refuses to submit to or complete a PAS test, the officer has the discretion to offer the driver a breath or blood test. This is done at the discretion of the officer.)

The following are examples of refusing to submit to a chemical testes) when a person is arrested/detained for driving a motor vehicle while under the influence of alcohol.

The driver refuses to submit to or complete:

• A chemical test after being offered the choice of both the breath and blood test.
• The blood test when the breath test is unavailable.
• The breath test when the blood test is unavailable.
• A urine test when both the breath and blood tests are unavailable or the officer suspects drug use.
• A PAS test or other chemical test.

Review for Commercial Disqualification

Commercial driver license holders are professional drivers who operate large, heavy motor vehicles, and often transport hazardous materials or vulnerable passengers. They are held to higher standards of conduct when operating motor vehicles requiring any class of license. The Federal Motor Carrier Safety Administration imposed regulations to reduce or prevent trucks and bus accidents, fatalities and injuries by disqualifying drivers who operate commercial motor vehicles in an unsafe manner.

When the OS 367 form indicates the person was a commercially licensed driver, was operating a commercial motor vehicle, or transporting hazardous material, the driver is subject to a commercial disqualification action when the APS action becomes effective. Refer to Driver Safety Manual Chapter 4, COMMERCIAL DISQUALIFICATION.

APS/PAS ACTIONS

The law enforcement officer indicates on the DS 367IDS 367M the following types of APS/PAS actions imposed:

APS Age 21 or Older

• SAC 0.08% or greater age 21 or older.
• SAC 0.04 % or greater while operating a motor vehicle requiring a commercial driver license.

PAS Under Age 21

• SAC 0.01 % or greater while under the age of21 (Zero Tolerance).

APS VIOLATION OF DUI PROBATION

• SAC 0.01 % or greater while on DUI probation for a conviction of §23152 or §23153 Vc.

REFUSAL FOR ONE YEAR

• Refuses or fails to complete a chemical test or tests when asked to do so by an officer.
• Refuses or fails to complete a PAS or other chemical test when asked to do so by an officer and the officer indicates a violation of DUI probation or driver under age 21.

The driving penalty imposed is mandatory and the department cannot change the length of the suspension or revocation. The department will not issue a license for any reason during the suspension or revocation period. The driver’s mileage, rehabilitation, or conviction in court are not relevant, nor considered when rendering a decision.

If the DS 367/367M form indicates the driver was under the influence of drugs or a combination of drugs and alcohol, and the driver record indicates a history of addiction to or habitual use of drugs, a reexamination may be noticed and then scheduled. A single act of driving under the influence of drugs does not prove drug addiction or habitual use and does not warrant a reexamination.

APS While on DUI Probation = 1 Year Suspension
It is unlawful pursuant to §23154 VC for any driver, regardless of age, who is on probation for a violation of §23152 or §23153 VC to operate a motor vehicle at anytime with a BAC of 0.01 % or greater as measured by a PAS test or other chemical test. The law enforcement officer will detain the driver and request that the driver take a PAS test to determine the presence of alcohol. A peace officer can request a driver, detained under §23154 VC, to submit to a chemical test of blood or breath when a PAS test is not immediately available. The law enforcement officer should clearly indicate in the probable cause section of the OS 367, how it was determined, the driver was on DUI probation. If the enforcement officer failed to indicate how it was determined, the missing information may be found on the arrest or supplemental report. If the box is checked to indicate 0.01% or more BAC (DUI Probation) or PAS or Other Chemical Test Refusal – (DUI Probation) and there is no statement from the law enforcement officer regarding DUI Probation, subpoena the officer to provide the information during the hearing. BAC of 0.0 1% or greater and driver is operating a. motor vehicle in violation of probation for violation of §23152 or §23153 VC.

The APS DUI Violation of Probation is in addition to any other APS/PAS action imposed due to the same offense when the following applies:

• 21 years of age or older and the BAC level is 0.08% or more, or
• Driver is 21 years of age or older and the BAC level is 0.04% or more, while operating a commercial motor vehicle, or
• Driver is under age 21 operating a motor vehicle with a BAC of 0.0 1% or greater. Law enforcement completes the OS 367/DS 367M indicating there are dual actions.

Scenarios of APS/PAS dual actions:

Driver is currently on DUI probation for a violation of §23152 or §23153 VC and:

• Driver is age 21 or older operating a non-commercial motor vehicle with a BAC of 0.08 % or greater – Order is issued reflecting both iii 0.01 % or more BAC DUI Probation action AND iii 0.08% or more BAC Chemical Tests Results actions.
• Driver is under age 21 operating a non-commercial motor vehicle with a BAC of 0.0 I% or greater – Order is issued reflecting both the 1{1 0.01% or more BAC PAS or other Chemical Test Results AND 0 0.01 % or more BAC (DUI Probation) actions.
• Driver is operating a commercial motor vehicle with a BAC of 0.04 % or greater – Order is issued reflecting both the iii 0.01 % or more BAC DUI Probation AND iii 0.04% or more BAC/COMM VEH actions.
• Driver is age 21 or older, completes a PAS test. Officer has a reasonable belief that the driver was 0.08% or greater. Driver refuses or fails to complete a chemical test and is subsequently arrested – Order is issued reflecting 0.01% or more BAC DUI Probation AND Chemical Test Refusal actions. (The BAC DUI Probation violation is not a refusal due to the submission to a PAS test; however, an APS refusal action is required based on a chemical test refusal (breath or blood).
• Driver under age 21 refuses or fails to complete a PAS or other chemical test – Order is issued reflecting both the PAS or other Chemical Test Refusal AND PAS or other Chemical Test Refusal- (DUI Probation) actions.
• Driver age 21 or older refuses the PAS test. Officer has a reasonable belief that the driver is 0.08% or greater. Driver also refuses or fails to complete a chemical test and is subsequently arrested. – Order is issued reflecting both, PAS or other Chemical Test Refusal- (DUI Probation) AND Chemical Test Refusal actions.

IMPORTANT: These scenarios are not all inclusive and each dual action case must be evaluated on its own merits.

A driver wishing to contest the action must then contact a San Diego DUI / DMV attorney.