Refusal cases & DUI laws in California

If you refused to complete a breath or blood test after a California DUI
arrest, you may be facing a refusal of a chemical test. Your San Diego
California DUI criminal defense attorney will have more obstacles to
encounter.

There are a number of special California DUI enhancements that will
increase a defendant's risk of receiving a stricter punishment in a California
DUI misdemeanor case. The increased California DUI punishment alternatives
include steeper California DUI fines, mandatory attendance in lengthy
California DUI alcohol education courses, and a longer required California
DUI term of incarceration in a county jail.

When a California DUI suspect refuses to take a chemical test,
both the California DUI lawyer and the prosecution are presented
with challenges and opportunities.

California has a law called the informed consent law of chemical
testing. What this means is that when you got your drivers
license, you agreed (although you probably did not realize it at the
time) that in exchange for the state giving you your drivers license,
you agreed to submit to a chemical test. This law means that the
state does not need a warrant or other court order to have you submit
to a chemical test.

If a California DUI suspect is arrested and after arrest is given the opportunity
to take a chemical test such as a breath, blood, or urine test, and
refuses to take any chemical test, the DUI suspect will be charged with
an additional crime of refusing a chemical test, per California DUI lawyers.

As long as there is no forced blood draw, the DUI suspect who refuses
to take a chemical test can potentially gain some advantages by refusing.
Unless a forced blood draw, the prosecution does not have a blood level
number to rely upon and has the more difficult job of proving impairment
as defined in California 's jury instructions. However, this is of limited value
according to most California DUI lawyers.

Many DUI defendants are charged with refusal because at the time they
were asked to take a chemical test, the DUI defendant believed that
they had the right to speak to a California DUI lawyer.
While this may be the law in some states, it is not the law in California. This
mistaken belief has lead to many refusal cases, per California DUI lawyers.

In many California DUI lawyer cases, the defendant agrees to take the
voluntary field sobriety tests while refusing to take the mandatory chemical
test. What this means is that in many refusal cases, the
prosecutor still has evidence of impairment through the officer's
testimony about the DUI suspect's performance on the field sobriety
tests.

Another common error DUI defendants tell California DUI lawyers is to
assume that by submitting to the preliminary alcohol screening (PAS) test,
that they have satisfied their obligation to give a chemical test.
In some California DUI lawyer cases, under the right facts, this
can be a winning argument. However, in most California DUI lawyer
cases, the refusal will still be charged.

California DUI lawyers report that many prosecutors and judges can
be very hostile towards a DUI defendant who has refused a chemical test.
This hostility can be expressed in increased jail time and extended alcohol e
ducation programs.

If the DUI defendant decides to go to trial and is found innocent of
the charge of driving while intoxicated, than the defendant can't be
found guilty of refusing a chemical test, California DUI lawyers explain.

During the trial, the California DUI attorney will given an instruction that
the act of the DUI defendant refusing to take a chemical test is evidence that the
DUI defendant was conscious of his own guilt of the charge of DUI.

In some California DUI lawyer cases and before some jurors, this can pose a
significant challenge.

Refusing to Submit to a California DUI Chemical Test (VC 23577)

If a person is arrested for VC 23152, a California DUI charge, and at
the time of the arrest he/she refused to submit to a chemical test, then
driving privileges will be suspended for a period of 6 months as an
enhancement, in addition to the usual penalties for the DUI conviction,
plus one year if DMV suspends at a refusal hearing.

Here's the California DUI Refusal Statutes:

23612. (a) (1) (A) A person who drives a motor vehicle is deemed to
have given his or her consent to chemical testing of his or her
blood or breath for the purpose of determining the alcoholic content
of his or her blood, if lawfully arrested for an offense allegedly
committed in violation of Section 23140, 23152, or 23153. If a blood
or breath test, or both, are unavailable, then paragraph (2) of
subdivision (d) applies.
(B) A person who drives a motor vehicle is deemed to have given
his or her consent to chemical testing of his or her blood or urine
for the purpose of determining the drug content of his or her blood,
if lawfully arrested for an offense allegedly committed in violation
of Section 23140, 23152, or 23153.
(C) The testing shall be incidental to a lawful arrest and
administered at the direction of a peace officer having reasonable
cause to believe the person was driving a motor vehicle in violation
of Section 23140, 23152, or 23153.
(D) The person shall be told that his or her failure to submit to,
or the failure to complete, the required chemical testing will
result in a fine, mandatory imprisonment if the person is convicted
of a violation of Section 23152 or 23153, and (i) the suspension of
the person's privilege to operate a motor vehicle for a period of one
year, (ii) the revocation of the person's privilege to operate a
motor vehicle for a period of two years if the refusal occurs within
10 years of a separate violation of Section 23103 as specified in
Section 23103.5, or of Section 23140, 23152, or 23153, or of Section
191.5 or subdivision (a) of Section 192.5 of the Penal Code that
resulted in a conviction, or if the person's privilege to operate a
motor vehicle has been suspended or revoked pursuant to Section
13353, 13353.1, or 13353.2 for an offense that occurred on a separate
occasion, or (iii) the revocation of the person's privilege to
operate a motor vehicle for a period of three years if the refusal
occurs within 10 years of two or more separate violations of Section
23103 as specified in Section 23103.5, or of Section 23140, 23152, or
23153, or of Section 191.5 or subdivision (a) of Section 192.5 of
the Penal Code, or any combination thereof, that resulted in
convictions, or if the person's privilege to operate a motor vehicle
has been suspended or revoked two or more times pursuant to Section
13353, 13353.1, or 13353.2 for offenses that occurred on separate
occasions, or if there is any combination of those convictions or
administrative suspensions or revocations.
(2) (A) If the person is lawfully arrested for driving under the
influence of an alcoholic beverage, the person has the choice of
whether the test shall be of his or her blood or breath and the
officer shall advise the person that he or she has that choice. If
the person arrested either is incapable, or states that he or she is
incapable, of completing the chosen test, the person shall submit to
the remaining test. If a blood or breath test, or both, are
unavailable, then paragraph (2) of subdivision (d) applies.
(B) If the person is lawfully arrested for driving under the
influence of any drug or the combined influence of an alcoholic
beverage and any drug, the person has the choice of whether the test
shall be of his or her blood, breath, or urine, and the officer shall
advise the person that he or she has that choice.
(C) A person who chooses to submit to a breath test may also be
requested to submit to a blood or urine test if the officer has
reasonable cause to believe that the person was driving under the
influence of a drug or the combined influence of an alcoholic
beverage and a drug and if the officer has a clear indication that a
blood or urine test will reveal evidence of the person being under
the influence. The officer shall state in his or her report the facts
upon which that belief and that clear indication are based. The
person has the choice of submitting to and completing a blood or
urine test, and the officer shall advise the person that he or she is
required to submit to an additional test and that he or she may
choose a test of either blood or urine. If the person arrested either
is incapable, or states that he or she is incapable, of completing
either chosen test, the person shall submit to and complete the other
remaining test.
(3) If the person is lawfully arrested for an offense allegedly
committed in violation of Section 23140, 23152, or 23153, and,
because of the need for medical treatment, the person is first
transported to a medical facility where it is not feasible to
administer a particular test of, or to obtain a particular sample of,
the person's blood, breath, or urine, the person has the choice of
those tests that are available at the facility to which that person
has been transported. In that case, the officer shall advise the
person of those tests that are available at the medical facility and
that the person's choice is limited to those tests that are
available.
(4) The officer shall also advise the person that he or she does
not have the right to have an attorney present before stating whether
he or she will submit to a test or tests, before deciding which test
or tests to take, or during administration of the test or tests
chosen, and that, in the event of refusal to submit to a test or
tests, the refusal may be used against him or her in a court of law.

(5) A person who is unconscious or otherwise in a condition
rendering him or her incapable of refusal is deemed not to have
withdrawn his or her consent and a test or tests may be administered
whether or not the person is told that his or her failure to submit
to, or the noncompletion of, the test or tests will result in the
suspension or revocation of his or her privilege to operate a motor
vehicle. A person who is dead is deemed not to have withdrawn his or
her consent and a test or tests may be administered at the direction
of a peace officer.
(b) A person who is afflicted with hemophilia is exempt from the
blood test required by this section.
(c) A person who is afflicted with a heart condition and is using
an anticoagulant under the direction of a licensed physician and
surgeon is exempt from the blood test required by this section.
(d) (1) A person lawfully arrested for an offense allegedly
committed while the person was driving a motor vehicle in violation
of Section 23140, 23152, or 23153 may request the arresting officer
to have a chemical test made of the arrested person's blood or breath
for the purpose of determining the alcoholic content of that person'
s blood, and, if so requested, the arresting officer shall have the
test performed.
(2) If a blood or breath test is not available under subparagraph
(A) of paragraph (1) of subdivision (a), or under subparagraph (A) of
paragraph (2) of subdivision (a), or under paragraph (1) of this
subdivision, the person shall submit to the remaining test in order
to determine the percent, by weight, of alcohol in the person's
blood. If both the blood and breath tests are unavailable, the person
shall be deemed to have given his or her consent to chemical testing
of his or her urine and shall submit to a urine test.
(e) If the person, who has been arrested for a violation of
Section 23140, 23152, or 23153, refuses or fails to complete a
chemical test or tests, or requests that a blood or urine test be
taken, the peace officer, acting on behalf of the department, shall
serve the notice of the order of suspension or revocation of the
person's privilege to operate a motor vehicle personally on the
arrested person. The notice shall be on a form provided by the
department.
(f) If the peace officer serves the notice of the order of
suspension or revocation of the person's privilege to operate a motor
vehicle, the peace officer shall take possession of all driver's
licenses issued by this state that are held by the person. The
temporary driver's license shall be an endorsement on the notice of
the order of suspension and shall be valid for 30 days from the date
of arrest.
(g) (1) The peace officer shall immediately forward a copy of the
completed notice of suspension or revocation form and any driver's
license taken into possession under subdivision (f), with the report
required by Section 13380, to the department. If the person submitted
to a blood or urine test, the peace officer shall forward the
results immediately to the appropriate forensic laboratory. The
forensic laboratory shall forward the results of the chemical tests
to the department within 15 calendar days of the date of the arrest.

(2) (A) Notwithstanding any other provision of law, a document
containing data prepared and maintained in the governmental forensic
laboratory computerized database system that is electronically
transmitted or retrieved through public or private computer networks
to or by the department is the best available evidence of the
chemical test results in all administrative proceedings conducted by
the department. In addition, any other official record that is
maintained in the governmental forensic laboratory, relates to a
chemical test analysis prepared and maintained in the governmental
forensic laboratory computerized database system, and is
electronically transmitted and retrieved through a public or private
computer network to or by the department is admissible as evidence in
the department's administrative proceedings. In order to be
admissible as evidence in administrative proceedings, a document
described in this subparagraph shall bear a certification by the
employee of the department who retrieved the document certifying that
the information was received or retrieved directly from the
computerized database system of a governmental forensic laboratory
and that the document accurately reflects the data received or
retrieved.
(B) Notwithstanding any other provision of law, the failure of an
employee of the department to certify under subparagraph (A) is not a
public offense.
(h) A preliminary alcohol screening test that indicates the
presence or concentration of alcohol based on a breath sample in
order to establish reasonable cause to believe the person was driving
a vehicle in violation of Section 23140, 23152, or 23153 is a field
sobriety test and may be used by an officer as a further
investigative tool.
(i) If the officer decides to use a preliminary alcohol screening
test, the officer shall advise the person that he or she is
requesting that person to take a preliminary alcohol screening test
to assist the officer in determining if that person is under the
influence of alcohol or drugs, or a combination of alcohol and drugs.
The person's obligation to submit to a blood, breath, or urine test,
as required by this section, for the purpose of determining the
alcohol or drug content of that person's blood, is not satisfied by
the person submitting to a preliminary alcohol screening test. The
officer shall advise the person of that fact and of the person's
right to refuse to take the preliminary alcohol screening test.

23577. (a) If any person is convicted of a violation of Section
23152 or 23153, and at the time of the arrest leading to that
conviction that person willfully refused a peace officer's request to
submit to, or willfully failed to complete, the chemical test or
tests pursuant to Section 23612, the court shall impose the following
penalties:
(1) If the person is convicted of a first violation of Section
23152, notwithstanding any other provision of subdivision (a) of
Section 23538, the terms and conditions of probation shall include
the conditions in paragraph (1) of subdivision (a) of Section 23538.

(2) If the person is convicted of a first violation of Section
23153, the punishment shall be enhanced by an imprisonment of 48
continuous hours in the county jail, whether or not probation is
granted and no part of which may be stayed, unless the person is
sentenced to, and incarcerated in, the state prison and the execution
of that sentence is not stayed.
(3) If the person is convicted of a second violation of Section
23152, punishable under Section 23540, or a second violation of
Section 23153, punishable under Section 23560, the punishment shall
be enhanced by an imprisonment of 96 hours in the county jail,
whether or not probation is granted and no part of which may be
stayed, unless the person is sentenced to, and incarcerated in, the
state prison and execution of that sentence is not stayed.
(4) If the person is convicted of a third violation of Section
23152, punishable under Section 23546, the punishment shall be
enhanced by an imprisonment of 10 days in the county jail, whether or
not probation is granted and no part of which may be stayed.
(5) If the person is convicted of a fourth or subsequent violation
of Section 23152, punishable under Section 23550 or 23550.5, the
punishment shall be enhanced by imprisonment of 18 days in the county
jail, whether or not probation is granted and no part of which may
be stayed.
(b) The willful refusal or failure to complete the chemical test
required pursuant to Section 23612 shall be pled and proven.

23578. In addition to any other provision of this code, if a person
is convicted of a violation of Section 23152 or 23153, the court
shall consider a concentration of alcohol in the person's blood of
0.15 percent or more, by weight, or the refusal of the person to take
a chemical test, as a special factor that may justify enhancing the
penalties in sentencing, in determining whether to grant probation,
and, if probation is granted, in determining additional or enhanced
terms and conditions of probation.

13353. (a) If a person refuses the officer's request to submit to,
or fails to complete, a chemical test or tests pursuant to Section
23612, upon receipt of the officer's sworn statement that the officer
had reasonable cause to believe the person had been driving a motor
vehicle in violation of Section 23140, 23152, or 23153, and that the
person had refused to submit to, or did not complete, the test or
tests after being requested by the officer, the department shall do
one of the following:
(1) Suspend the person's privilege to operate a motor vehicle for
a period of one year.
(2) Revoke the person's privilege to operate a motor vehicle for a
period of two years if the refusal occurred within 10 years of
either (A) a separate violation of Section 23103 as specified in
Section 23103.5, or of Section 23140, 23152, or 23153, or of Section
191.5 or subdivision (a) of Section 192.5 of the Penal Code, that
resulted in a conviction, or (B) a suspension or revocation of the
person's privilege to operate a motor vehicle pursuant to this
section or Section 13353.2 for an offense that occurred on a separate
occasion.
(3) Revoke the person's privilege to operate a motor vehicle for a
period of three years if the refusal occurred within 10 years of any
of the following:
(A) Two or more separate violations of Section 23103 as specified
in Section 23103.5, or of Section 23140, 23152, or 23153, or of
Section 191.5 or subdivision (a) of Section 192.5 of the Penal Code,
or any combination thereof, that resulted in convictions.
(B) Two or more suspensions or revocations of the person's
privilege to operate a motor vehicle pursuant to this section or
Section 13353.2 for offenses that occurred on separate occasions.
(C) Any combination of two or more of those convictions or
administrative suspensions or revocations.
The officer's sworn statement shall be submitted pursuant to
Section 13380 on a form furnished or approved by the department. The
suspension or revocation shall not become effective until 30 days
after the giving of written notice thereof, or until the end of a
stay of the suspension or revocation, as provided for in Section
13558.
(D) For the purposes of this section, a conviction of an offense
in any state, territory, or possession of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, or the
Dominion of Canada that, if committed in this state, would be a
violation of Section 23103, as specified in Section 23103.5, or
Section 23140, 23152, or 23153, or Section 191.5 or subdivision (a)
of Section 192.5 of the Penal Code, is a conviction of that
particular section of the Vehicle Code or Penal Code.
(b) If a person on more than one occasion in separate incidents
refuses the officer's request to submit to, or fails to complete, a
chemical test or tests pursuant to Section 23612 while driving a
motor vehicle, upon the receipt of the officer's sworn statement that
the officer had reasonable cause to believe the person had been
driving a motor vehicle in violation of Section 23140, 23152, or
23153, the department shall disqualify the person from operating a
commercial motor vehicle for the rest of his or her lifetime.
(c) The notice of the order of suspension or revocation under this
section shall be served on the person by a peace officer pursuant to
Section 23612. The notice of the order of suspension or revocation
shall be on a form provided by the department. If the notice of the
order of suspension or revocation has not been served by the peace
officer pursuant to Section 23612, the department immediately shall
notify the person in writing of the action taken. The peace officer
who serves the notice, or the department, if applicable, also shall
provide, if the officer or department, as the case may be, determines
that it is necessary to do so, the person with the appropriate
non-English notice developed pursuant to subdivision (d) of Section
14100.
(d) Upon the receipt of the officer's sworn statement, the
department shall review the record. For purposes of this section, the
scope of the administrative review shall cover all of the following
issues:
(1) Whether the peace officer had reasonable cause to believe the
person had been driving a motor vehicle in violation of Section
23140, 23152, or 23153.
(2) Whether the person was placed under arrest.
(3) Whether the person refused to submit to, or did not complete,
the test or tests after being requested by a peace officer.
(4) Whether, except for a person described in subdivision (a) of
Section 23612 who is incapable of refusing, the person had been told
that his or her driving privilege would be suspended or revoked if he
or she refused to submit to, or did not complete, the test or tests.

(e) The person may request an administrative hearing pursuant to
Section 13558. Except as provided in subdivision (e) of Section
13558, the request for an administrative hearing does not stay the
order of suspension or revocation.
(f) The suspension or revocation imposed under this section shall
run concurrently with any restriction, suspension, or revocation
imposed under Section 13352, 13352.4, or 13352.5 that resulted from
the same arrest.

13353.1. (a) If a person refuses an officer's request to submit to,
or fails to complete, a preliminary alcohol screening test pursuant
to Section 13388, upon the receipt of the officer's sworn statement,
submitted pursuant to Section 13380, that the officer had reasonable
cause to believe the person had been driving a motor vehicle in
violation of Section 23136, and that the person had refused to submit
to, or did not complete, the test after being requested by the
officer, the department shall do one of the following:
(1) Suspend the person's privilege to operate a motor vehicle for
a period of one year.
(2) Revoke the person's privilege to operate a motor vehicle for a
period of two years if the refusal occurred within 10 years of
either of the following:
(A) A separate violation of subdivision (a) of Section 23136, that
resulted in a finding of a violation, or a separate violation, that
resulted in a conviction, of Section 23103, as specified in Section
23103.5, of Section 23140, 23152, or 23153, or of Section 191.5 or
subdivision (a) of Section 192.5 of the Penal Code.
(B) A suspension or revocation of the person's privilege to
operate a motor vehicle if that action was taken pursuant to this
section or Section 13353 or 13353.2 for an offense that occurred on a
separate occasion.
(3) Revoke the person's privilege to operate a motor vehicle for a
period of three years if the refusal occurred within 10 years of any
of the following:
(A) Two or more separate violations of subdivision (a) of Section
23136, that resulted in findings of violations, or two or more
separate violations, that resulted in convictions, of Section 23103,
as specified in Section 23103.5, of Section 23140, 23152, or 23153,
or of Section 191.5 or subdivision (a) of Section 192.5 of the Penal
Code, or any combination thereof.
(B) Two or more suspensions or revocations of the person's
privilege to operate a motor vehicle if those actions were taken
pursuant to this section, or Section 13353 or 13353.2, for offenses
that occurred on separate occasions.
(C) Any combination of two or more of the convictions or
administrative suspensions or revocations described in subparagraph
(A) or (B).
(b) For the purposes of this section, a conviction of an offense
in any state, territory, or possession of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, or Canada
that, if committed in this state, would be a violation of Section
23103, as specified in Section 23103.5, or Section 23140, 23152, or
23153, or Section 191.5 or subdivision (a) of Section 192.5 of the
Penal Code, is a conviction of that particular section of the Vehicle
or Penal Code.
(c) The notice of the order of suspension or revocation under this
section shall be served on the person by the peace officer pursuant
to Section 13388 and shall not become effective until 30 days after
the person is served with that notice. The notice of the order of
suspension or revocation shall be on a form provided by the
department. If the notice of the order of suspension or revocation
has not been served by the peace officer pursuant to Section 13388,
the department immediately shall notify the person in writing of the
action taken. The peace officer who serves the notice, or the
department, if applicable, also shall provide, if the officer or
department, as the case may be, determines that it is necessary to do
so, the person with the appropriate non-English notice developed
pursuant to subdivision (d) of Section 14100.
(d) Upon the receipt of the officer's sworn statement, the
department shall review the record. For the purposes of this section,
the scope of the administrative review shall cover all of the
following issues:
(1) Whether the peace officer had reasonable cause to believe the
person had been driving a motor vehicle in violation of Section
23136.
(2) Whether the person was lawfully detained.
(3) Whether the person refused to submit to, or did not complete,
the test after being requested to do so by a peace officer.
(e) The person may request an administrative hearing pursuant to
Section 13558. Except as provided in subdivision (e) of Section
13558, the request for an administrative hearing does not stay the
order of suspension or revocation.

13353.1. (a) If a person refuses an officer's request to submit to,
or fails to complete, a preliminary alcohol screening test pursuant
to Section 13388 or 13389, upon the receipt of the officer's sworn
statement, submitted pursuant to Section 13380, that the officer had
reasonable cause to believe the person had been driving a motor
vehicle in violation of Section 23136 or 23154, and that the person
had refused to submit to, or did not complete, the test after being
requested by the officer, the department shall do one of the
following:
(1) Suspend the person's privilege to operate a motor vehicle for
a period of one year.
(2) Revoke the person's privilege to operate a motor vehicle for a
period of two years if the refusal occurred within 10 years of
either of the following:
(A) A separate violation of subdivision (a) of Section 23136, that
resulted in a finding of a violation, or a separate violation, that
resulted in a conviction, of Section 23103, as specified in Section
23103.5, of Section 23140, 23152, or 23153, or of Section 191.5 or
subdivision (a) of Section 192.5 of the Penal Code.
(B) A suspension or revocation of the person's privilege to
operate a motor vehicle if that action was taken pursuant to this
section or Section 13353 or 13353.2 for an offense that occurred on a
separate occasion.
(3) Revoke the person's privilege to operate a motor vehicle for a
period of three years if the refusal occurred within 10 years of any
of the following:
(A) Two or more separate violations of subdivision (a) of Section
23136, that resulted in findings of violations, or two or more
separate violations, that resulted in convictions, of Section 23103,
as specified in Section 23103.5, of Section 23140, 23152, or 23153,
or of Section 191.5 or subdivision (a) of Section 192.5 of the Penal
Code, or any combination thereof.
(B) Two or more suspensions or revocations of the person's
privilege to operate a motor vehicle if those actions were taken
pursuant to this section, or Section 13353 or 13353.2, for offenses
that occurred on separate occasions.
(C) Any combination of two or more of the convictions or
administrative suspensions or revocations described in subparagraph
(A) or (B).
(b) For the purposes of this section, a conviction of an offense
in any state, territory, or possession of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, or Canada
that, if committed in this state, would be a violation of Section
23103, as specified in Section 23103.5, or Section 23140, 23152, or
23153, or Section 191.5 or subdivision (a) of Section 192.5 of the
Penal Code, is a conviction of that particular section of the Vehicle
or Penal Code.
(c) The notice of the order of suspension or revocation under this
section shall be served on the person by the peace officer pursuant
to Section 13388 and shall not become effective until 30 days after
the person is served with that notice. The notice of the order of
suspension or revocation shall be on a form provided by the
department. If the notice of the order of suspension or revocation
has not been served by the peace officer pursuant to Section 13388,
the department immediately shall notify the person in writing of the
action taken. The peace officer who serves the notice, or the
department, if applicable, also shall provide, if the officer or
department, as the case may be, determines that it is necessary to do
so, the person with the appropriate non-English notice developed
pursuant to subdivision (d) of Section 14100.
(d) Upon the receipt of the officer's sworn statement, the
department shall review the record. For the purposes of this section,
the scope of the administrative review shall cover all of the
following issues:
(1) Whether the peace officer had reasonable cause to believe the
person had been driving a motor vehicle in violation of Section
23136.
(2) Whether the person was lawfully detained.
(3) Whether the person refused to submit to, or did not complete,
the test after being requested to do so by a peace officer.
(e) The person may request an administrative hearing pursuant to
Section 13558. Except as provided in subdivision (e) of Section
13558, the request for an administrative hearing does not stay the
order of suspension or revocation.

13353.2. (a) The department shall immediately suspend the privilege
of a person to operate a motor vehicle for any one of the following
reasons:
(1) The person was driving a motor vehicle when the person had
0.08 percent or more, by weight, of alcohol in his or her blood.
(2) The person was under 21 years of age and had a blood-alcohol
concentration of 0.01 percent or greater, as measured by a
preliminary alcohol screening test, or other chemical test.
(3) The person was driving a vehicle that requires a commercial
driver's license when the person had a 0.04 percent or more, by
weight, of alcohol in his or her blood.
(b) The notice of the order of suspension under this section shall
be served on the person by a peace officer pursuant to Section 13388
or 13382. The notice of the order of suspension shall be on a form
provided by the department. If the notice of the order of suspension
has not been served upon the person by the peace officer pursuant to
Section 13388 or 13382, upon the receipt of the report of a peace
officer submitted pursuant to Section 13380, the department shall
mail written notice of the order of the suspension to the person at
the last known address shown on the department's records and, if the
address of the person provided by the peace officer's report differs
from the address of record, to that address.
(c) The notice of the order of suspension shall clearly specify
the reason and statutory grounds for the suspension, the effective
date of the suspension, the right of the person to request an
administrative hearing, the procedure for requesting an
administrative hearing, and the date by which a request for an
administrative hearing shall be made in order to receive a
determination prior to the effective date of the suspension.
(d) The department shall make a determination of the facts in
subdivision (a) on the basis of the report of a peace officer
submitted pursuant to Section 13380. The determination of the facts,
after administrative review pursuant to Section 13557, by the
department is final, unless an administrative hearing is held
pursuant to Section 13558 and any judicial review of the
administrative determination after the hearing pursuant to Section
13559 is final.
(e) The determination of the facts in subdivision (a) is a civil
matter that is independent of the determination of the person's guilt
or innocence, shall have no collateral estoppel effect on a
subsequent criminal prosecution, and shall not preclude the
litigation of the same or similar facts in the criminal proceeding.
If a person is acquitted of criminal charges relating to a
determination of facts under subdivision (a), or if the person's
driver's license was suspended pursuant to Section 13388 and the
department finds no basis for a suspension pursuant to that section,
the department shall immediately reinstate the person's privilege to
operate a motor vehicle if the department has suspended it
administratively pursuant to subdivision (a), and the department
shall return or reissue for the remaining term any driver's license
that has been taken from the person pursuant to Section 13382 or
otherwise. Notwithstanding subdivision (b) of Section 13558, if
criminal charges under Section 23140, 23152, or 23153 are not filed
by the district attorney because of a lack of evidence, or if those
charges are filed but are subsequently dismissed by the court because
of an insufficiency of evidence, the person has a renewed right to
request an administrative hearing before the department. The request
for a hearing shall be made within one year from the date of arrest.

(f) The department shall furnish a form that requires a detailed
explanation specifying which evidence was defective or lacking and
detailing why that evidence was defective or lacking. The form shall
be made available to the person to provide to the district attorney.
The department shall hold an administrative hearing, and the hearing
officer shall consider the reasons for the failure to prosecute given
by the district attorney on the form provided by the department. If
applicable, the hearing officer shall consider the reasons stated on
the record by a judge who dismisses the charges. No fee shall be
imposed pursuant to Section 14905 for the return or reissuing of a
driver's license pursuant to this subdivision. The disposition of a
suspension action under this section does not affect any action to
suspend or revoke the person's privilege to operate a motor vehicle
under any other provision of this code, including, but not limited
to, Section 13352 or 13353, or Chapter 3 (commencing with Section
13800).

13353.2. (a) The department shall immediately suspend the privilege
of a person to operate a motor vehicle for any one of the following
reasons:
(1) The person was driving a motor vehicle when the person had
0.08 percent or more, by weight, of alcohol in his or her blood.
(2) The person was under 21 years of age and had a blood-alcohol
concentration of 0.01 percent or greater, as measured by a
preliminary alcohol screening test, or other chemical test.
(3) The person was driving a vehicle that requires a commercial
driver's license when the person had a 0.04 percent or more, by
weight, of alcohol in his or her blood.
(4) The person was driving a motor vehicle when both of the
following apply:
(A) The person was on probation for a violation of Section 23152
or 23153.
(B) The person had a 0.01 percent or more, by weight, of alcohol
in his or her blood, as measured by a preliminary alcohol screening
test or other chemical test.
(b) The notice of the order of suspension under this section shall
be served on the person by a peace officer pursuant to Section 13388
or 13382. The notice of the order of suspension shall be on a form
provided by the department. If the notice of the order of suspension
has not been served upon the person by the peace officer pursuant to
Section 13388 or 13382, upon the receipt of the report of a peace
officer submitted pursuant to Section 13380, the department shall
mail written notice of the order of the suspension to the person at
the last known address shown on the department's records and, if the
address of the person provided by the peace officer's report differs
from the address of record, to that address.
(c) The notice of the order of suspension shall clearly specify
the reason and statutory grounds for the suspension, the effective
date of the suspension, the right of the person to request an
administrative hearing, the procedure for requesting an
administrative hearing, and the date by which a request for an
administrative hearing shall be made in order to receive a
determination prior to the effective date of the suspension.
(d) The department shall make a determination of the facts in
subdivision (a) on the basis of the report of a peace officer
submitted pursuant to Section 13380. The determination of the facts,
after administrative review pursuant to Section 13557, by the
department is final, unless an administrative hearing is held
pursuant to Section 13558 and any judicial review of the
administrative determination after the hearing pursuant to Section
13559 is final.
(e) The determination of the facts in subdivision (a) is a civil
matter that is independent of the determination of the person's guilt
or innocence, shall have no collateral estoppel effect on a
subsequent criminal prosecution, and shall not preclude the
litigation of the same or similar facts in the criminal proceeding.
If a person is acquitted of criminal charges relating to a
determination of facts under subdivision (a), or if the person's
driver's license was suspended pursuant to Section 13388 and the
department finds no basis for a suspension pursuant to that section,
the department shall immediately reinstate the person's privilege to
operate a motor vehicle if the department has suspended it
administratively pursuant to subdivision (a), and the department
shall return or reissue for the remaining term any driver's license
that has been taken from the person pursuant to Section 13382 or
otherwise. Notwithstanding subdivision (b) of Section 13558, if
criminal charges under Section 23140, 23152, or 23153 are not filed
by the district attorney because of a lack of evidence, or if those
charges are filed but are subsequently dismissed by the court because
of an insufficiency of evidence, the person has a renewed right to
request an administrative hearing before the department. The request
for a hearing shall be made within one year from the date of arrest.

(f) The department shall furnish a form that requires a detailed
explanation specifying which evidence was defective or lacking and
detailing why that evidence was defective or lacking. The form shall
be made available to the person to provide to the district attorney.
The department shall hold an administrative hearing, and the hearing
officer shall consider the reasons for the failure to prosecute given
by the district attorney on the form provided by the department. If
applicable, the hearing officer shall consider the reasons stated on
the record by a judge who dismisses the charges. A fee shall not be
imposed pursuant to Section 14905 for the return or reissuing of a
driver's license pursuant to this subdivision. The disposition of a
suspension action under this section does not affect an action to
suspend or revoke the person's privilege to operate a motor vehicle
under another provision of this code, including, but not limited to,
Section 13352 or 13353, or Chapter 3 (commencing with Section 13800).

13353.3. (a) An order of suspension of a person's privilege to
operate a motor vehicle pursuant to Section 13353.2 shall become
effective 30 days after the person is served with the notice pursuant
to Section 13382 or 13388, or subdivision (b) of Section 13353.2.
(b) The period of suspension of a person's privilege to operate a
motor vehicle under Section 13353.2 is as follows:
(1) If the person has not been convicted of a separate violation
of Section 23103, as specified in Section 23103.5, of Section 23140,
23152, or 23153, of Section 191.5 or subdivision (a) of Section 192.5
of the Penal Code, the person has not been administratively
determined to have refused chemical testing pursuant to Section 13353
or 13353.1, or the person has not been administratively determined
to have been driving with an excessive concentration of alcohol
pursuant to Section 13353.2 on a separate occasion, that offense or
occurrence occurred within 10 years of the occasion in question, the
person's privilege to operate a motor vehicle shall be suspended for
four months.
(2) If the person has been convicted of one or more separate
violations of Section 23103, as specified in Section 23103.5, Section
23140, 23152, or 23153, Section 191.5 or subdivision (a) of Section
192.5 of the Penal Code, the person has been administratively
determined to have refused chemical testing pursuant to Section 13353
or 13353.1, or the person has been administratively determined to
have been driving with an excessive concentration of alcohol pursuant
to Section 13353.2 on a separate occasion, that offense or occasion
occurred within 10 years of the occasion in question, the person's
privilege to operate a motor vehicle shall be suspended for one year.

(3) Notwithstanding any other provision of law, if a person has
been administratively determined to have been driving in violation of
Section 23136 or to have refused chemical testing pursuant to
Section 13353.1, the period of suspension shall not be for less than
one year.
(c) If a person's privilege to operate a motor vehicle is
suspended pursuant to Section 13353.2 and the person is convicted of
a violation of Section 23152 or 23153, including, but not limited to,
a violation described in Section 23620, arising out of the same
occurrence, both the suspension under Section 13353.2 and the
suspension or revocation under Section 13352 shall be imposed, except
that the periods of suspension or revocation shall run concurrently,
and the total period of suspension or revocation shall not exceed
the longer of the two suspension or revocation periods.
(d) For the purposes of this section, a conviction of an offense
in any state, territory, or possession of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, or the
Dominion of Canada that, if committed in this state, would be a
violation of Section 23103, as specified in Section 23103.5, or
Section 23140, 23152, or 23153, or Section 191.5 or subdivision (a)
of Section 192.5 of the Penal Code, is a conviction of that
particular section of the Vehicle Code or Penal Code.

13353.4. (a) Except as provided in Section 13353.7 or 13353.8, the
driving privilege shall not be restored, and a restricted or hardship
permit to operate a motor vehicle shall not be issued, to a person
during the suspension or revocation period specified in Section
13353, 13353.1, or 13353.3.
(b) The privilege to operate a motor vehicle shall not be restored
after a suspension or revocation pursuant to Section 13352, 13353,
13353.1, or 13353.2 until all applicable fees, including the fees
prescribed in Section 14905, have been paid and the person gives
proof of financial responsibility, as defined in Section 16430, to
the department.
(c) This section shall become operative on September 20, 2005.

13388. (a) If a peace officer lawfully detains a person under 21
years of age who is driving a motor vehicle, and the officer has
reasonable cause to believe that the person is in violation of
Section 23136, the officer shall request that the person take a
preliminary alcohol screening test to determine the presence of
alcohol in the person, if a preliminary alcohol screening test device
is immediately available. If a preliminary alcohol screening test
device is not immediately available, the officer may request the
person to submit to chemical testing of his or her blood, breath, or
urine, conducted pursuant to Section 23612.
(b) If the person refuses to take, or fails to complete, the
preliminary alcohol screening test or refuses to take or fails to
complete a chemical test if a preliminary alcohol device is not
immediately available, or if the person takes the preliminary alcohol
screening test and that test reveals a blood-alcohol concentration
of 0.01 percent or greater, or if the results of a chemical test
reveal a blood-alcohol concentration of 0.01 percent or greater, the
officer shall proceed as follows:
(1) The officer, acting on behalf of the department, shall serve
the person with a notice of an order of suspension of the person's
driving privilege.
(2) The officer shall take possession of any driver's license
issued by this state which is held by the person. When the officer
takes possession of a valid driver's license, the officer shall
issue, on behalf of the department, a temporary driver's license.
The temporary driver's license shall be an endorsement on the notice
of the order of suspension and shall be valid for 30 days from the
date of issuance, or until receipt of the order of suspension from
the department, whichever occurs first.
(3) The officer immediately shall forward a copy of the completed
notice of order of suspension form, and any driver's license taken
into possession under paragraph (2), with the report required by
Section 13380, to the department. For the purposes of this
paragraph, "immediately" means on or before the end of the fifth
ordinary business day after the notice of order of suspension was
served.
(c) For the purposes of this section, a preliminary alcohol
screening test device is an instrument designed and used to measure
the presence of alcohol in a person based on a breath sample.

13389. (a) If a peace officer lawfully detains a person previously
convicted of Section 23152 or 23153 who is driving a motor vehicle,
while the person is on probation for a violation of Section 23152 or
23153, and the officer has reasonable cause to believe that the
person is in violation of Section 23154, the officer shall request
that the person take a preliminary alcohol screening test to
determine the presence of alcohol in the person, if a preliminary
alcohol screening test device is immediately available. If a
preliminary alcohol screening test device is not immediately
available, the officer may request the person to submit to chemical
testing of his or her blood, breath, or urine, conducted pursuant to
Section 23612.
(b) If the person refuses to take, or fails to complete, the
preliminary alcohol screening test or refuses to take or fails to
complete a chemical test if a preliminary alcohol device is not
immediately available, or if the person takes the preliminary alcohol
screening test and that test reveals a blood-alcohol concentration
of 0.01 percent or greater, the officer shall proceed as follows:
(1) The officer, acting on behalf of the department, shall serve
the person with a notice of an order of suspension of the person's
driving privilege.
(2) (A) The officer shall take possession of any driver's license
issued by this state that is held by the person. When the officer
takes possession of a valid driver's license, the officer shall
issue, on behalf of the department, a temporary driver's license.
(B) The temporary driver's license shall be an endorsement on the
notice of the order of suspension and shall be valid for 30 days from
the date of issuance, or until receipt of the order of suspension
from the department, whichever occurs first.
(3) (A) The officer shall immediately forward a copy of the
completed notice of order of suspension form, and any driver's
license taken into possession under paragraph (2), with the report
required by Section 13380, to the department.
(B) For the purposes of subparagraph (A), "immediately" means on
or before the end of the fifth ordinary business day after the notice
of order of suspension was served.
(c) For the purposes of this section, a preliminary alcohol
screening test device is an instrument designed and used to measure
the presence of alcohol in a person based on a breath sample.