After a DUI arrest in California, why does the 10-day DMV deadline matter?

After a DUI arrest in California, the DMV can suspend your license on its own, separately from the criminal case. To get a hearing before that suspension takes effect, you must request it within 10 days of receiving the notice of suspension (Vehicle Code § 13558(b)). Missing the 10 days does not end your right to fight the criminal charge, but the suspension can start without a hearing first.

The paper a driver receives after a DUI arrest, an order of suspension that also works as a temporary license, is easy to misunderstand. It starts a clock that runs much faster than the court case. This page explains what the DMV hearing is, what it decides, what it cannot do, and why the first ten days matter. For the whole DUI process, including penalties in court, read the page on how a California DUI case works in Orange County. Other criminal and family topics are listed under the firm's practice areas.

How the DMV side of a DUI works, step by step

1. The order at the arrest. The DMV must immediately suspend the license of a driver who drove with 0.08 percent or more, a driver under 21 with 0.01 percent or more, a commercial driver at 0.04 percent or more, or a driver on DUI probation with 0.01 percent or more (§ 13353.2(a)). The notice is served by the officer; if it was not, the DMV mails it after receiving the officer's report (§ 13353.2(b)).
2. The temporary license. The DMV says the order lets a person with a valid California license drive for 30 days from the date the order was issued, unless the license is suspended for another reason.
3. The officer's report goes to the DMV. The officer must forward the order, any license taken and a sworn report. The DMV then conducts an automatic administrative review of the report, the order and any test results, and sets the suspension aside if there is no basis for it. The DMV notifies the driver in writing only if the suspension is set aside after that review.
4. The 10-day request. A person who wants a hearing before the suspension takes effect must request it within 10 days of receiving the notice (§ 13558(b)). If the request is postmarked or received within that time, the DMV must hold the hearing before the effective date (§ 13558(d)).
5. Waiting for the hearing. Asking for a hearing does not by itself stop the suspension. If the DMV cannot hold the hearing and decide in time, it must stay the suspension until it decides (§ 13558(e)).
6. The hearing. It is held at a place the DMV designates as close as practicable to where the arrest happened, unless the parties agree otherwise, and the evidence is not limited to what was reviewed at the administrative review (§ 13558(b)).
7. The decision. If the DMV upholds the suspension, the temporary permit is revoked and the suspension takes effect five days after notice is given (§ 13558(f)).

What the DMV hearing decides, and what it does not

The DMV describes the hearing as an administrative proceeding about the driving privilege and the circumstances of the arrest, not about guilt or innocence. If the driver took a test, the issues are whether the officer had reasonable cause to believe the person was driving in violation of Vehicle Code §§ 23140, 23152 or 23153, whether the person was lawfully arrested or detained while on DUI probation, and whether the person drove with 0.08 percent or more. If the driver refused, the issues add whether the person was told of the refusal consequences and whether they refused or failed to complete the test.

The law keeps the two cases apart. The DMV's finding is a civil matter, independent of guilt or innocence, and it does not bind the criminal court (§ 13353.2(e); § 13558(g)). A restricted license cannot be requested at the hearing; the DMV says drivers apply separately for an ignition interlock device or a restricted license to drive to and from work. Nobody is required to request a hearing; it is a right, not an obligation.

That separation explains why the hearing is worth requesting. It can be an early chance for the defense to question the evidence behind the stop, the arrest and the test, well before any trial in the criminal case. A person released after the arrest, as explained on the page about what happens between arrest and arraignment in Orange County, may have a court date later, while the DMV clock is already running.

What changes the answer?

• The test result. A result of 0.08 percent or more triggers the immediate suspension in § 13353.2(a)(1).
• Refusal. Refusing or not completing the chemical test brings a one-year suspension, or a two- or three-year revocation with prior DUIs or suspensions within 10 years (§ 13353(a)), and the refusal can be used in court (§ 23612(a)(4)).
• Age. A driver under 21 with 0.01 percent or more faces a one-year suspension (§ 13353.2(a)(2)).
• Commercial license. The limit is 0.04 percent in a commercial vehicle (§ 13353.2(a)(3)), and the DMV says a commercial driver must downgrade to a Class C license to get a restricted license.
• DUI probation. A driver on probation for a DUI faces suspension at 0.01 percent (§ 13353.2(a)(4)).
• The outcome in court. If the criminal case ends in an acquittal, the DMV reverses the suspension when it determines that the court decision equals an acquittal; a reduction to reckless driving does not affect the suspension.
• Drugs. A driver lawfully arrested for DUI is deemed to have consented to a blood test for drug content (§ 23612(a)(1)(B)); related possession charges are on the page about drug charges in California.

A worked example

For example, imagine a 20-year-old engineering student at a university in Irvine, in the United States on a student visa from Iran. This is a hypothetical, not a real case. After a party, she is stopped near campus, takes a preliminary breath test, and the result is 0.03 percent. She is not charged with DUI that night, but the officer takes her license and gives her an order of suspension.

Because she is under 21 and the result is 0.01 percent or more, the DMV must suspend her license for one year (§ 13353.2(a)(2)), and the DMV says the reissue fee after a Zero Tolerance suspension is $100. The order is a temporary license for 30 days. If she wants a hearing before the suspension starts, she has 10 days from receiving the order (§ 13558(b)). Her parents in Tehran learn about it on a video call and do not understand why there is no court date. The answer is that this is the DMV's own case; there may be no criminal case at all.

At the hearing, the question is whether the officer had reasonable cause, whether she was lawfully detained, and what the test showed. Separately, because she is on a student visa, any future criminal case should be discussed with a separate immigration attorney before any plea; this office does not give immigration advice. Students who want to know who would handle the hearing can read about Sourena Sarbazevatan.

Common mistakes with the DMV deadline

• Waiting for the court date. The 10 days run from receipt of the notice, not from the arraignment.
• Assuming a hearing request stops the suspension. It does not, unless the DMV cannot hold the hearing in time (§ 13558(e)).
• Driving after the temporary license expires. The 30 days run from the order's issue date, according to the DMV.
• Expecting the hearing to give a restricted license. Restricted licenses and interlock devices are handled separately, according to the DMV.
• Thinking a reduced charge restores the license. A reduction to reckless driving does not affect the DMV suspension.

What to do this week

1. Find the order of suspension and write down the date you received it.
2. Count 10 days and request the hearing before that date, or have your attorney request it.
3. Note the date the 30-day temporary license ends.
4. Write down what happened at the stop and the test, for your attorney only.
5. Keep any receipts or records that show times and places that evening.
6. Ask the DMV about an ignition interlock device or a restricted license if you will need to drive to work.

If a criminal DUI case is also filed, release and court dates follow the rules on the page about how bail and release work in California. A conviction may later be dismissed under the rules on the page about clearing a record under Penal Code 1203.4.

Frequently asked questions

When do the 10 days start?

From receipt of the notice of the order of suspension or revocation (§ 13558(b)). The DMV's DUI page states the same 10-day window.

What if I miss the 10 days?

The suspension can take effect without a hearing beforehand. The criminal case is not affected, and the defense in court is a separate matter.

Do I have to request a DMV hearing?

No. The DMV says you are not required to request one. It is a right to be heard before the suspension takes effect.

Can I get a restricted license at the hearing?

No. The DMV says a restricted license cannot be considered at the hearing; drivers apply separately for an ignition interlock device or a restricted license to drive to and from work.

If I win the hearing, does the criminal case go away?

No. The DMV's determination does not bind the criminal court, and the same facts can be litigated again in the criminal case (§ 13558(g)).

Does the hearing happen in Orange County?

The DMV holds it at a place it designates as close as practicable to where the arrest happened, unless the parties agree to a different location (§ 13558(b)).

The Law Office of Sourena Sarbazevatan represents people in Orange County and San Diego in DUI and DMV hearing matters, in English and Persian (Farsi). Call (949) 591-9596 or use the contact page.