An individual accused of driving under the influence has 10 days to contact a local branch of the DMV’s Office of Driver Safety and request a hearing. It is very important that the individual or attorney contact the DMV for this hearing because, after 10-days, the suspension will automatically take effect. With a competent DMV attorney, you may be able to avoid the suspension.
If a requested hearing cannot be scheduled before the 30-day temporary license expires, Vehicle Code § 13558(d) and (e) provides access for your lawyer to obtain a stay of the suspension.
After confiscating the arrestee’s license and serving the individual with an order of suspension, the arresting officer will complete a document entitled “Officer’s Statement-Admin Per Se.” This one-page form sets forth the bare minimum facts necessary for the DMV to suspend the license, including the officer’s observing of driving (or statutory exceptions), probable cause, and chemical test results. The document is signed under oath by the arresting officer and, if applicable, the breath machine operator. It is then supposed to be forwarded to the Department “immediately” on or before the end of the fifth ordinary business day following the arrest.” Vehicle Code § 23158.5(c). In fact, however, this deadline is routinely ignored with no consequences.
DMV Administrative Review
The department will conduct an “administrative review” of the case to ensure that the evidence, that is, the arresting officer’s paperwork, complies with the requirements for an administrative suspension.
The hearing officer is, of course, an employee of the department with little or no legal training. The most critical characteristic of this individual, however, is that the hearing officer is both prosecutor and judge. The hearing officer will present the department’s case, conduct direct examination of any department witnesses, and cross-examine the DUI client and defense witnesses. The hearing officer will also determine the admissibility of all evidence. After the hearing officer has finished doing his or her best to sustain the license suspension, the officer will then decide whether he or she wins or you win. This dual role played by the hearing officer has been upheld.
If you lose your DMV Hearing and there was not a refusal, you face the following suspensions:
For a First Time DUI, the DMV will suspend your license for a minimum of one month. After this one month suspension of your license, if you enroll in an alcohol class, file proof of insurance (SR-22, proof of financial responsibility) and pay a DMV license reissue fee of $125, you can obtain a restricted license to drive to work for the next four to five months (possibly longer depending on what happens in court). In sum, on a first time DUI, you cannot drive for 30-days if you lose your DMV hearing, but after 30-days you can get a restricted license.
For a Second Time DUI within 10-years, the DMV will suspend your license for one year. This suspension does NOT even allow for any type of restricted license, which would let the individual to drive to work. The DMV is harsh and unsympathetic to a second time DUI.
For a Third Time DUI within 10 years, the DMV and the Court will attempt to revoke your license for 3 years. However, after completion of the 18 month program and installation of an ignition interlock device, you might be eligible for a restricted license, which would allow you to drive for work related reasons.
Although the deck is stacked with a hearing office playing a dual role, a knowledgeable defense attorney can successfully “set aside” the suspension. Furthermore, armed with testimony and evidence from the DMV hearing, your attorney will add ammunition to his arsenal for the soon to come state prosecution.
We highly encourage you to contact us to schedule a free consultation of your case at (909) 480-0894.
There are common grounds for which a hearing officer may “set aside” a license suspension. If a “set aside” is found, then your license will not be suspended. “Set asides” are usually based on defective procedures or paperwork, such as:
- Insuficient admissible evidence that the licensee was driving.
- The officer lacked probable cause to stop the licensee. However, hearing officers are generally very reluctant to question probable cause to detain or arrest.
- The chemical test was administered more than three hours after driving.
- There is no admissible evidence of when the driving occurred or, alternatively, of when the test was given, so driving cannot be established within three hours of the test.
- The licensee establishes a failure to comply with Title 17 of the California Code of Regulations; particularly with the 15-minute pretest observation period.
- Defense evidence shows a rising blood-alcohol concentration; that is, the BAC was below 0.08% at the time of driving.
- The laboratory blood or urine analysis report is not signed “at or near” the time of analysis, as required by Downer v. Zolin.
- The dates and times in the DS 367, arrest, and breath checklist reports are contradictory on issues such as time of driving, arrest, 15-minute observation, and chemical test.
- Records obtained by discovery/subpoena indicate significant or repeated problems with the breath machine.
Although the DMV is a challenge, there are many aspects that a skillful attorney can fight for you. This area of law is many times overlooked by many attorneys because they believe winning the DMV hearing is a “lost cause.” But, Mr. Davison will take the time to properly defend your rights in this important juncture of your case.
Vehicle Code § 23612, which provides in part: Any person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for any offense allegedly committed in violation of section 23140, 23152, or 23153.
If you were 21 years or older at the time of arrest and you refused or failed to complete a blood or breath test, or (if applicable) a urine test, then:
- A first offense will result in a 1-year suspension.
- A second offense within 10 years will result in a 2-year revocation.
- A third or subsequent offense within 10 years will result in a 3-year revocation.
However, there are cases, which a person may not be punished for refusing to take the chemical test. Such cases involve situations where, including but not limited to:
- The officer did not have “reasonable cause” to believe the person had been driving under the influence.
- The person was not lawfully placed under arrest.
- The person was not properly advised of the consequences for refusing pursuant to Section 23612 of the Vehicle Code.
- The licensee did not understand the implied consent provisions due to head injury, or the refusal was due to officer-induced confusion.
- The person merely failed to complete the test.
Even if your case involves a refusal to take a chemical test, you should not give up on your driving privileges. You need an attorney to analyze the specific facts of your case in order to provide you with a solid defense to avoid license suspension.
The attorney at the Law Office of Brett Parker Davison has extensive knowledge of the system and can begin building a strategy for your defense immediately. Call today!