If you are a California resident, you probably know that a peace officer sometimes has the right to confiscate a driver's license after an arrest for driving under the influence (DUI). However, this right is not absolute. There are limits on when confiscation is proper.
California's Administrative Per Se (APS) Law
In recent years, many state legislatures have passed laws requiring arresting officers to confiscate driver's licenses when they reasonably suspect DUI. Many states passed laws like this to take a harder stance on drunk driving. California is no exception.
California passed its
law requiring immediate license suspension
in 1990. This is known as an "administrative per se" (APS) suspension. It allows an arresting officer to confiscate the driver's license at the scene as long as certain requirements are met.
The California law provides that when a license is confiscated, the officer must give the driver a "notice of suspension" and 30-day temporary license. This paper serves as notice that the driver's license will be suspended after the 30-day period ends. The purpose of this temporary license is to give the driver time to challenge the suspension. This is critical for a driver who must work to support his or her family or who is responsible for transporting his or her children to school.
California's APS law applies to impaired driving caused by alcohol, drugs, or both. Of course, if the driver does not have a valid license, any temporary license that may be issued by an officer does not allow him or her to drive.
What Are the Requirements for Driver License Confiscation in California?
When a peace officer confiscates a driver's license due to a failed or refused chemical test, this is known as an "APS suspension." Although the officer seizes the license, the action is actually undertaken by the California Department of Motor Vehicles (DMV).
An APS suspension of a driver 21 years of age or older is proper only when specific requirements are met. First, the peace officer must have reasonable cause to believe that the driver was driving under the influence, as that term is defined in California's motor vehicle laws. Second, the officer's detention of the driver must have been legal, meaning that the driver was either lawfully arrested or was on DUI probation when the alleged offense occurred. The remaining requirements depend on whether the driver completed a chemical test or whether he or she refused or failed to complete a test:
- Completed a Test: The driver must meet one of the following standards: (1) a blood alcohol concentration (BAC) of 0.08% or greater while driving a noncommercial vehicle; (2) a BAC of 0.4% or greater while driving a commercial vehicle; or (3) a BAC of 0.01% or greater while on probation for DUI or if under age 21.
- Refused or Failed to Complete a Test: Two requirements must be met in this circumstance: (1) the peace officer must tell the driver that license suspension or revocation will follow a refusal to test or a failure to complete a test; and (2) the driver must refuse a test or fail to complete a test after being asked to do so.
If a driver's license is confiscated and these requirements are not met, the driver can successfully challenge the APS suspension.
Hiring the right attorney can make all the difference when challenging an APS suspension. At the Law Offices of Virginia L. Landry, our Orange County defense attorneys have experience helping people whose licenses have been confiscated, and they will work to help get you back in the driver's seat sooner. For more information about APS suspensions, visit
. To set up a free initial consultation with one of our attorneys, call 866.902.6880 today.