Arrested for DUI Drugs/23152 (e) vc, have a question about DMV APS hearing.

A DMV Administrative Per Se (APS) hearing is to determine whether you were driving with a blood alcohol level over the legal limit. If there is no chemical test to support that ruling, the license suspension should be set aside. DMV might even do that before the scheduled hearing, when they conduct an administrative review. However, if you're convicted of "rolling stoned" in the criminal case, your license will be suspended.

You may be facing a suspension BUT it won't come from the DMV hearing. The DMV currently only has authority through the Administrative Process to suspend cases where alcohol was involved, however, if you are convicted of a drug DUI you may face suspension for the conviction, a skilled DUI attorney may be able to help you avoid that outcome too.

You will probably win at the DMV, in my experience. No other factors come into play for this specific charge at a DMV hearing other than the first two issues the DMV must consider at every hearing: 1) Did the officer have reasonable cause to believe you were operating a motor vehicle in violation of VC 23152 or 23153; and 2) was the respondent (you) placed under legal arrest. Both of those are usually resolved against you, but the third issue, whether you had a BAC of 0.08% or higher by weight of alcohol, will resolve in your favor. Therefore, you license suspension will be set aside.

If no alcohol, you should get a set aside. But if convicted of DUI in court, then DMV can and will suspend from that. But there may be options there, if you either get the charges reduced to a wet reckless (or lower), or if the case is dismissed or you win at trial. Get ready for a fight ok a drug DUI in San Diego, as the prosecutors got a grant to prosecute drug DUIs. Although there can be many arguments in a drug DUI. Lots of science to dive into.

I agree completely with Mssrs. Marshall and Bair and write separately only to note that you should be treating this as a DIY project. Retain counsel to represent you.

0.0 BAC will not result in a DMV APS suspension.

The DMV will not suspend your license with a BAC of zero, but your license may be suspended if you are convicted in court under VC 23152(e).

Thanks for your question. Your chances are very good of having a set aside for an alcohol reading of any type below 0.08%. If there are any medical or neurological problems, the DMV can always suspend based upon a different code section. You have a bigger concern with the court, and that's where a lawyer might help you best. All the best to you.

The California DMV is not statutorily authorized to suspend a driver’s license unless the driver either 1. Refuses a chemical test or 2. is shown to have a blood alcohol leve at or above 0.08% at the time of driving. In marijuana/drug cases where the driver submits to a blood test, if their blood alcohol level is below 0.08%, the DMV will not suspend the driver’s license in a normal DUI APS suspension. The driver still faces court mandated driver’s license restrictions however, if they are convicted of marijuana DUI. I recommend you talk to a local DUI lawyer. Your best bet is to discuss it with one of the above attorneys. Good luck.