Who do you want as your Attorney? The Master or the student? Patrick Silva has 18 years of DUI experience, he has been published in DUI reference books, he has spoken in front of 100's of attorneys at conferences, taught classes to Lawyers on his secrets and strategies, and has a nationally listened to podcast dedicated to teaching other DUI Lawyers How To Win.

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California DUI Defense and "Double Jeopardy" Charges

Despite the constitutional prohibition against "double jeopardy," you CAN be punished twice for a California DUI​

California arrests for drunk driving often result in two distinct legal proceedings:

a criminal trial in California Superior Court or federal District Court, and
an administrative “per se” license suspension (APS) hearing before the California DMV.

You can lose your driver's license at either or both of these hearings.

So why have California courts held that this doesn't violate your rights under the Double Jeopardy Clause?

1.     What is the “Double Jeopardy” Clause?

The Double Jeopardy Clause is part of the Fifth Amendment to the United States Constitution.  It protects people from:

being prosecuted more than once for a single offense, or
receiving multiple punishments for the same offense.

Some states have held that facing a driver's license suspension in two separate proceedings for the same offense violates the Double Jeopardy Clause.

To understand why California has not adopted this view, we need to briefly discuss the difference between the two types of suspensions.

2.     Court-Triggered DUI Suspension

A court trial is a criminal trial. It is used to determine if you are guilty of the crime of California driving under the influence.

If you are convicted of – or you plead guilty to -- DUI, the court will notify the California DMV.  The DMV will then automatically suspend your license for a period of at least six months.

Even though the court itself does not impose the penalty, the court-triggered suspension is arguably a criminal penalty for DUI.

3.     DMV Administrative “Per Se” Suspension

A California license suspension hearing before the DMV is an administrative proceeding. It is not a criminal trial. You are not entitled to have a jury hear your case. You cannot be put in jail if the hearing doesn't go your way.

The only sanction that can be imposed at an APS hearing is the suspension or revocation of your California drivers license.

4.     Court Trials and DMV Hearings are Independent of Each Other

California APS hearings only take place if:

you were arrested for a DUI in California, AND
a DUI breath or blood test showed a BAC of .08% or greater or you refused to take a chemical test, AND
you requested an APS hearing within 10 days of your arrest.

A DMV hearing takes place much sooner than a criminal trial. Therefore, you might have only a DMV hearing if:

the prosecutor ends up dropping the charges against you, or
as the result of a plea bargain, you plead guilty to a lesser charge.

Conversely, even if you never have an APS hearing, you could still face criminal charges.

It is only when you face both a California DMV hearing and a criminal prosecution that Double Jeopardy is a concern.

5.     Why Don't My APS Hearing and Court Case Constitute Double Jeopardy?

The Double Jeopardy Clause applies when you face multiple punishments for the same offense. If the sanction in either… or both… proceedings exists not to punish, but to prevent or remedy a wrong, Double Jeopardy does not apply.

California has adopted the view that suspending the licenses of drunk drivers is remedial or preventative in nature. By removing dangerous drivers from the road, it prevents (or remedies) a wrong.

Unless and until the United Supreme Court weighs in on the issue, Double Jeopardy is unlikely to be a successful defense to California DUI charges.

Our San Bernardino DUI Lawyers understand how devastating it can be to face criminal charges, or the loss of your California driver's license.

We have successfully defended thousands of people in both criminal and California DMV proceedings throughout Southern California.

Whether you have been wrongly accused -- or you just made a mistake – we can help. Contact us today for a free consultation


Patrick J. Silva - Attorney at Law

A Professional Law Corporation