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Why was a "nunc pro tunc" not part of my plea deal?

Rancho Santa Fe, CA |

Got 6 month restricted license in November 2010 from DMV for DUI arrest. Planned on fighting charge, changed mind and took plea bargain in March 2011. The Court handed me ANOTHER 6 month suspension which started in March. My attorney said there was a mistake and went to Vista to get a copy of the docket with the nunc pro tunc order on it but he didnt see it on the document. Assuming oversight, he asked the Judge, who responded "We don't Nunc Pro Tunc in Vista" and that its a "new policy" circa 2011. He tells me nunc pro tunc is automatic, despite the refusal of the court to oblige us "in writing" and that if pulled over, simply show a copy of his email and my original suspension paperwork and I shouldn't have any problems. Does this seem legit or made-up to cover his mistake? Advice?

From my attorney: I went up to get a copy of the docket with the nunc pro tunc order on it but it didn't have it written on document. Figured it was an oversight. I added the case to calendar and asked the Judge, who responded "We don't Nunc Pro Tunc in Vista." That is a "new policy" circa 2011 according to the public defender in the room. My legal opinion is that nunc pro tunc is automatic, despite the refusal of the court to oblige us "in writing." I recommend that you keep a copy of the original suspension together with the new suspension in a folder in the trunk and if there are any issues, just show them a copy of this particular email. The one thing you don't want to do is get into it with the DMV- they aren't going to "be cool" but all law enforcement agencies understand how these things work- just make sure you can show them the license was suspended twice for the same reason. Since you have your drivers license back, you don't need to do anything else at the end of the suspension.

Attorney Answers 4


  1. Best answer

    Your case reflects the inexplicable result of California Vehicle Code 13352, which applies in this situation. I assume that you have already served the one month hard suspension after which the restricted license was granted by the DMV upon your application and payment of reinstatement fee. The Court notifies the DMV after the conviction, which then results in yet another suspension period. Why? The only logical reason for the two suspensions is to encourage drivers to immediately plead guilty in the court proceeding and waive all constitutional rights to avoid two overlapping suspensions.

    The following excerpt from a practice guide may help clarify how this works.

    "Where a driver obtains a 5-month restricted license after serving 30 days of an APS suspension, he gets one month credit against the 6-month conviction triggering suspension imposed by CVC 13352(a)(1). Assuming he reapplies for his restricted license (converting the remaining 5-month suspension under CVC 13352(a)(1) into a restricted license), the two 5-month periods of 'restriction' will run concurrently, but only to the extent that they are running at the same time."

    Based on the facts that you provided, your restriction period should only be 3-4 additional months from the date of conviction. If you are thinking that this makes no sense: I agree.

    Best of luck.

    The foregoing is not legal advice.


  2. You should consult with a DUI Lawyer who understands the law and how DMV works. Putting it in the hands of the cops to try and figure it out is risky and could result in new charges, probation violation, impoundment of vehicle, etc...

    DMV mandatory actions unit in Sacramento may be able to help and straighten out the suspension (it may or may not be possible to run concurrently), but before contacting them you should talk to a DUI Lawyer who can evaluate everything, specifically dates, and properly advise you. We do not currently have enough information to properly advise you and this really needs a full consultation.

    Good Luck


  3. Considering that department is the only one I am aware of in San Diego that has it's own unique sentencing guidelines, it would not be surprising if the policy you speak of is particular to the location. That said, the explanation of the first contributor was very thorough and well-reasoned.


  4. Wow. The e-mail you got is worthless. If you are stopped by a cop, they simply run DMV record check, and if your license is suspended - you get a ticket (possibly arrested), and car impounded. If it is restricted, and you are driving for an unauthorized reason - you get a ticket (possibly arrested) and car impounded. The two suspensions/restrictions happen in almost every DUI case. Yes, they can overlap if you time the DMV hearing and the court dates correctly. Previously, it was common for courts to manipulate the suspension start dates if they were not overlapping naturally, using the nunc pro tunc method - but they are not required to do so. if you pay another re-issue fee at the DMV for the 2nd suspension, your license should be immediately made into a restricted license again. It wont be for 6 months. It will be for 6 months, less any actual suspension period (not restriction) which you already suffered.

    This does not form an attorney-client relationship. I require a written agreement before I begin work on any case.

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