This is a tricky one to answer. Analyzing the situation correctly involves applying all the rules from our very complex statutory scheme for APS actions and the mandatory actions imposed after court convictions. To further complicate matters, the law is constantly changing and then ultimately there are loopholes in the way the law gets applied. If you want to save your drivers license in any DUI situation or learn how to get it back as quickly as possible, you need the assistance of an experienced California DUI lawyer.
The best way to solve this problem is to not lose your license in the first place. So if you drink, don’t drive. Call a cab, get a room, walk, call a tow truck, call a limo, all of these options are infitely cheaper and safer than drinking and driving. If you do make the mistake of drinking and driving the next step is to fight your case and win. And “winning” in this context means getting a set aside (or beating in English) the DMV APS hearing AND avoiding the conviction in court which could be from a dismissal, a not guilty verdict, or a negotiated plea to a lesser charge. If you lose either the DMV OR you have a conviction in court, you will lose your license, it’s just a question of how long and what do we have to do to get it back as quickly as possible.
If you have already been convicted or if you have decided to enter a plea, then its a question of applying the facts of you case to the complicated set of rules summarized below to determine how and when you can get your license back. It would be impossible to cover every set of possible factual scenarios in this blogpost because the length and type of suspension will vary based on several factors. The big things to consider are….did you have an accident? Was anyone injured in that accident? Did you refuse the chemical test? Did the refusal get upheld or set aside at the DMV hearing? Was the refusal enchancement in court found true? Did you admit it with your plea? Was it stricken in plea negotiations? Were there drugs involved or just alcohol? Or did you really get your Sheen on and get busted for driving under the influece of alcohol AND drugs? How old is your prior? Are you still on probation from that one? Is your prior out of state? Was your prior a DUI or a wet reckless? Is the DMV aware of your prior? How about the court? Were all the codes and dates entered correctly by the court clerk and the people at the DMV?
The bottom line is every case is different and only a full analysis of the facts and circumstances of your case will yield a correct result. In an effor to at least reward you for reading this post so far, I will try to lay out some general guidelines, the prerequisites for applying for an early return of your license and some of the more common traps and loopholes.
First the basics or general rules. Effective July 1, 2010, Senate Bill 598 authorized a second or third offender convicted of driving under the influence to reinstate the non-commercial driving privilege early when an IID is installed. Come again? In English that means you can get your license back quicker after a 2nd or 3rd time DUI by volunteering to put a breathalyzer device in your car. To apply for reinstatement you must first meet several ground rules. First you must lose or waive your DMV APS hearing! That’s right, if you won the DMV hearing or if you haven’t had one yet, there is no chance you are going to qualify for this early return of your license. So if you enter a plea in court but you still haven’t had your DMV hearing due to scheduling issues or continuances, it’s time to call the DMV and enter a waiver because until you do there is no chance of getting the early license. Second, you must have also concluded your criminal case and lost that too! You must negotiate a plea agreement with a qualifying conviction, or conclude your trial with a qualifying conviction. If your case is still pending in court you are not eligible. This could be especially frustrating for a person who hasn’t even had their case filed yet…..but that’s another blog post. Now to determine the date you become eligible you start with the date the APS action took effect. If this is a 2nd time DUI you must serve at least 90 days of a hard suspension (no license at all) and then you become eligible for an early IID license assuming all other rules are met. If this is a 3rd DUI you must serve at least 180 days of the hard suspension.
Once you meet these general rules you can apply IF you meet the second set or rules or as I like to call them the prerequisites to your application for early reinstatement of your license. First you must make sure that the violation date was on July 1, 2010 or later and you have cleared all other outstanding revocations, suspensions, or other holds or fees that may be on your license. Then you must have have paid the fees to apply, get an SR-22 or proof of insurance on file, and enroll in or complete your DUI class with an enrollment date which is subsequent to the date of the current violation.
So if you have met the general requirements, and you have met the prerequisites for the application you are now into the fun stuff. This is point where crazy things start to happen. Let look at a list of exceptions to the application to the law or what I will call the loopholes.
Loophole number one is that your new conviction and APS action must be based solely on alcohol intoxication. If it involved drugs AND alcohol, no early IID license for you. This one seems to make sense because the breathalyzer won’t stop your car from starting if you just dusted your dashboard. Loophole number two is that you can’t have a felony DUI of any kind. If you have a felony DUI you will just have to wait the regular suspension period which is at least one year and in most felony situations much longer than that. Loophole number 3 is you can’t have had a refusal on your new DUI. If your new APS actions is based on a refusal or the enhancement was admitted or found true in court, no early IID license available. Loophole number 4 is that you can’t still be on probation for your previous DUI. If you picked up your second DUI or third DUI while you were still on probation for the last one, you are not the kind of driver they are looking to help out with getting back on the road. Loophole number 5 is that this does NOT apply to commercial licenses. So if you have a 2nd or 3rd DUI and you are a commercial driver you can forget about driving your big rig with a breathalyzer on the steering wheel. In fact you can forget about ever driving that rig in California again. Mulitple DUI offenders in California lose their commercial privlege for LIFE.
Loophole number 6 is that this only works for DUI convictions under Section 23152 of the vehicle code. So if someone was injured and you were convicted of 23153 or if someone was killed and you were charged with manslaughter under PC 191.5(b) or murder under under PC 187, no early license for you. This is different than loophole number 2 because that one is based on it being a felony conviction. Loophole number 6 is based on the specific code section you were convicted of, not the level of the offense. Loophole number 7 is that you can’t get a reduced charge in court. Yes you read that correctly. If your lawyer does a great job and gets your charge reduced to reckless driving under 23103.5 or dry reckless or drunk in public or any other reduced charge, no early IID license for you. In terms of getting your license back sooner after you have lost an APS hearing with a prior you are actually better off losing in court than winning!
If you have been reading my blog posts for a while you probably know that I’m not a big fan of the DMV or government in general for that matter. And usually when I say our “friends” at the DMV, it’s a little tounge in cheek. But I must give credit where credit is due and thank the Irvine Driver Safety office for helping me work out the framework of this new system. I spent a few minutes on the phone with a hearing officer today and learned quite a bit that I think can help me help you. I may hate the system, rules, lines and red tape of the DMV, but I have to admit they have a few special employees. I think this rule applies to all levels of government and I consider locating these special people and utilizing their humanity to our advantage as a part of my job as your attorney. So if you are facing a 2nd or 3rd time DUI, or if you already have a conviction and you just want help figuring out how to get your license back, give me a ring at 800-797-8406 and we talk about how these rules apply in you and how to get that license back in your pocket as soon as possible.
