DUI And The “Negligent Operation” Suspension

If you are
arrested for a DUI or a DUI with injury in California the officer who arrests
you will confiscate your driver’s license and give you a pink piece of paper to
act as your “temporary” license. A careful read of the prolix legal dialogue on
the pink paper will explain that if you or your Orange County DUI defense lawyer don’t call the DMV to demand your
right to a  DMV hearing in the matter, a suspension will automatically be
imposed beginning 30 days after the date of arrest. This suspension, called an
Administrative Per se or “APS” suspension is four months in length for a
first-offense DUI and one year for a second-offense or third offense DUI.

Even if you
or your DUI defense Attorney in Orange County requests this hearing, this usually
only delays the inevitable suspension. The APS hearing is a civil procedure and
the burden of evidence required to find against the driver is very low—a preponderance
of the evidence. Moreover, the driver is not entitled to a jury. Rather, the DMV
employee or “Hearing Officer” sits as both judge and prosecutor with great
leeway to interpret the rules of evidence very loosely. The DMV need only show
that 1) you were driving; 2) the officer had reasonable suspicion to stop you
(a traffic violation); the officer had probable cause to arrest you for DUI
(bad field sobriety tests, bad driving, odor of alcohol, red eyes, etc.); and
4) that your blood alcohol level on a breath test or blood test was 0.08% or higher.

But this is
only the first of TWO suspensions that arise from a DUI arrest. If your DUI Lawyer cant find a defense to your case in court or cannot find a
defense to the charge in court or cant get the charge reduced to a wet reckless, then you may have to plead guilty
to the DUI. If you plead guilty or are found guilty of a DUI, the court MUST
immediately notify the DMV which then imposes a “Conviction Suspension”. For a
first-offense DUI this is a six month suspension. For a second or third offense
DUI the conviction suspension is two years.

Now, if this
is a first-offense DUI, as most DUIs are, then your DUI Attorney can get you a restricted license after serving only 30 days
of suspension. A restricted license will allow you to drive to and from work as
well as any “work related” driving. However, if you have other traffic offenses
on your record, you may also face a “negligent operation” suspension. This
suspension lasts six months and is NOT subject to a restricted license.

A Negligent
Operation suspension is issued if you have too many “points” on your driving
record. The Negligent Operation suspension is found in Sections 12810 and
12810.5 of the California Vehicle Code. Under these provisions, most moving
violations count as one point. A DUI however, counts as two points. SO does the
violation of driving on a suspended license. Under this statutory scheme, if a
driver gets four or more points in any 12-month period, six or more points in
any 24-month period, or eight or more points in 36-months, they will get a
Negligent Operation suspension.

So, for
example, if a driver is arrested for a first-offense DUI, and the driver has two
moving violations within the past year, the driver will probably face three
suspensions: the APS suspension, the DUI Conviction suspension, and the
Negligent Operation suspension. While the driver’s DUI defense Attorney will likely be able to get the driver a restricted license
after 30 days for the first two suspensions, there is no restricted license
available for the Negligent Operation suspension and the driver will likely
face a six-month period of suspension.

If you are charged
with a DUI in the Orange County courts, call The Law Offices of EJ Stopyro at
(949) 559-5500 for a free and confidential telephonic consultation with an
experienced DUI lawyer. You can also get more
information from our website at www.ejesquire.com.
We have offices at 32072 Camino Capistrano, 2^nd floor, San Juan
Capistrano, CA 92675 and at 1901 Newport Blvd., Suite 350, Costa Mesa, CA
92627.