(a) The department shall review the determination made pursuant to Section 13353, 13353.1, or 13353.2 relating to a person who has received a notice of an order of suspension or revocation of the person’s privilege to operate a motor vehicle pursuant to Section 13353, 13353.1, 13353.2, 13382, or 23612,. The department shall consider the sworn report submitted by the peace officer pursuant to Section 23612 or 13380 and any other evidence accompanying the report.
(b) (1) If the department determines in the review of a determination made under Section 13353 or 13353.1, by a preponderance of the evidence, all of the following facts, the department shall sustain the order of suspension or revocation:
(A) The peace officer had reasonable cause to believe that the person had been driving a motor vehicle in violation of Section 23136, 23140, 23152, 23153, or 23154.
(B) The person was placed under arrest or, if the alleged violation was of Section 23136, that the person was lawfully detained.
(C) The person refused or failed to complete the chemical test or tests after being requested by a peace officer.
(D) Except for the persons described in Section 23612 who are incapable of refusing, the person had been told that his or her privilege to operate a motor vehicle would be suspended or revoked if he or she refused to submit to, and complete, the required testing.
(2) If the department determines, by a preponderance of the evidence, that any of the facts required under paragraph (1) were not proven, the department shall rescind the order of suspension or revocation and, if the person is otherwise eligible, return or reissue the person’s driver’s license pursuant to Section 13551. The determination of the department upon administrative review is final unless a hearing is requested pursuant to Section 13558.
(3) If the department determines in the review of a determination made under Section 13353.2, by the preponderance of the evidence, all of the following facts, the department shall sustain the order of suspension or revocation, or if the person is under 21 years of age and does not yet have a driver’s license, the department shall delay issuance of that license for one year:
(A) The peace officer had reasonable cause to believe that the person had been driving a motor vehicle in violation of Section 23136, 23140, 23152, 23153, or 23154.
(B) The person was placed under arrest or, if the alleged violation was of Section 23136, the person was lawfully detained.
(C) The person was driving a motor vehicle under any of the following circumstances:
(i) When the person had 0.08 percent or more, by weight, of alcohol in his or her blood.
(ii) When the person was under 21 years of age and had 0.05 percent or more, by weight, of alcohol in his or her blood.
(iii) When 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.
(iv) When the person was driving a vehicle that requires a commercial driver’s license and the person had 0.04 percent or more, by weight, of alcohol in his or her blood.
(v) When the person was on probation for a violation of Section 23152 or 23153 and had a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test or other chemical test.
(4) If the department determines that any of those facts required under paragraph (3) were not proven by the preponderance of the evidence, the department shall rescind the order of suspension or revocation and, if the person is otherwise eligible, return or reissue the person’s driver’s license pursuant to Section 13551. For persons under 21 years of age, the determination of the department pursuant to paragraph (3) is final unless a hearing is requested within 10 days of the determination, which hearing shall be conducted according to Section 13558. For persons over 21 years of age, the determination of the department upon administrative review is final unless a hearing is requested pursuant to Section 13558.
(c) The department shall make the determination upon administrative review before the effective date of the order of suspension or revocation.
(d) The administrative review does not stay the suspension or revocation of a person’s privilege to operate a motor vehicle. If the department is unable to make a determination on administrative review within the time limit in subdivision (c), the department shall stay the effective date of the order of suspension or revocation pending the determination and, if the person’s driver’s license has been taken by the peace officer pursuant to Section 13382, 13388, 13389, or 23612, the department shall notify the person before the expiration date of the temporary permit issued pursuant to Section 13382, 13388, 13389, or 23612, or the expiration date of any previous extension issued pursuant to this subdivision, in a form that permits the person to establish to any peace officer that his or her privilege to operate a motor vehicle is not suspended or revoked.
(e) A person may request and be granted a hearing pursuant to Section 13558 without first receiving the results of an administrative review pursuant to this section. After receiving a request for a hearing, the department is not required to conduct an administrative review of the same matter pursuant to this section.
(f) A determination of facts by the department under this section has no collateral estoppel effect on a subsequent criminal prosecution and does not preclude litigation of those same facts in the criminal proceeding.
(Amended by Stats. 2011, Ch. 296, Sec. 307. (AB 1023) Effective January 1, 2012.)