DMV Administrative License Suspension for a DUI

Impaired driving is illegal in every state and a DUI conviction can result in severe penalties. But states also have laws that allow the Department of Motor Vehicles (DMV) to administratively suspend (sometimes called an "administrative per se" suspension) the license of drivers who are just arrested for driving under the influence. This type of administrative suspension can happen long before a criminal trial takes place and without a DUI conviction.

Here's how administrative per se suspension work, including the situations where they apply.

Administrative License Suspensions

When an officer makes a DUI arrest, he or she will typically request that the person take a blood, breath, or urine test. The results of these tests will show the concentration of alcohol or drugs in the driver's system and can be used as evidence to prove a DUI charge in court.

However, these tests results—or a driver's refusal to take a test—can also lead to an administrative license suspension imposed by the DMV. Here are the ways this can happen:

• Submission to testing. Drivers who submit to testing will face administrative penalties only if the results show an unlawful drug or alcohol level. Generally, a blood alcohol concentration (BAC) of .08% or more (.05% or more for Utah) will lead to an administrative license suspension. Additionally, many states have laws that allow the DMV to impose an administrative suspension where test results show a certain concentration of metabolized controlled substances.
• Refusing to test. Drivers generally have the "right" to refuse testing. But implied consent laws also authorize the DMV to revoke the driving privileges of drivers who refuse a lawful test request (to be lawful, the officer must have probable cause).

Once the test results are available (blood and urine tests take some time) or the driver refuses testing, the arresting officer will forward to the DMV a document indicating the results of the test request. If the driver fails or refuses a test, the officer or DMV will provide the driver with a notice of suspension. This notice indicates the terms of the license suspension as well as the process for an appeal.

Duration of Administrative Per Se Suspensions

Test failures (having a drug or alcohol concentration above the legal limit) will typically lead to an administrative suspension of 30 to 90 days for a first offense.

Generally, the suspension period for a refusal is longer than for a failure. It's common for a refusal suspension to be a full year, even for a first violation.

In some states, administrative suspensions are followed by an ignition interlock device requirement of some duration.

Appealing an Administrative License Suspension

The administrative suspension proceedings are separate from what happens in criminal court. However, drivers still have the ability to contest an administrative license suspension. The appeal process varies between states, but a driver generally has a set number of days following the arrest in which to contest the notice of suspension.

Administrative hearings. When a driver submits a request for administrative review (and possibility a filing fee), the DMV will set the matter for a hearing in front of an agency hearing officer. At the hearing, the driver will have the opportunity to dispute the legitimacy of the suspension. In some states, the driver must prove that the suspension was improper. In other states, the officer has the burden at the hearing of proving that the testing equipment used was in good working order and the arrest and testing procedures were lawful.

Review by a court. As with all government actions, an unfavorable decision by a DMV hearing officer can generally be appealed to a court. However, it's important that the driver first goes through the administrative process, which is a prerequisite to seeking relief from a court.

Talk to an Attorney

The filing deadlines and legal processes related to administrative per se suspension are different in every state. And because administrative license suspensions aren't considered criminal case matters, drivers aren't entitled to a court-appointed attorney. So, if you're facing an administrative suspension, it's probably a good idea to talk to an experienced DUI attorney who tell you how the law applies in your case and help you decide on the best course of action.