DMV Hearings

The California Department of Motor Vehicles is permitted by the law to suspend a driver’s license. It is critical that you contest the decision by filing for a hearing within ten days after a DUI arrest. The trial helps the person facing license suspension charges to challenge the decision and avail evidence against suspension to the Driver Safety Hearing Officer. At this hearing, you are provided with all the evidence collected against you so that you can give testimony of witnesses to challenge the discovery provided and have DMV rescind their Discretionary action. Apart from repealing, the action can be modified or sustained based on how you challenge evidence.

Often, after an arrest, the arresting officer confiscates your driver’s license and serves you with a Notice of Suspension. The paperwork acts as a notice that you should apply for a DMV hearing, or your driving privileges will be suspended. Similarly, the Notice of Suspension acts as your driver’s license for thirty days after your license is taken away pending criminal charges or DMV hearing.

Failure to apply for an administrative hearing will lead to license cancelation after 30 days, which means you might be forced to go back to driving under influence school, present an SR-22 insurance form, pay a reinstatement fee of $125 or install an Ignition interlock device (IID).

The majority of DUI arrestees that are not facing criminal charges today end up continuing to drive after the DMV hearing because of the IID. The device is installed in the arrested person’s vehicle for four months. During this period, the ignition interlock device uses a Breathalyzer that stops the auto from starting every time it detects alcohol in the driver’s breath. Avoid such issues by filing for an administrative hearing immediately after the arrest so that the suspension of your driving privileges can be delayed awaiting the trial.

In an administrative hearing, the case is presided over by a driver safety hearing officer who has no training for this work, but for criminal charges, a judge presides over the hearing. The burden of proof in the DMV hearing is easily satisfied, but for a DUI criminal hearing, one must go to a far extent to make the proof required to prove guilt satisfying. The trial for a DMV case takes place in an office or over the phone, which makes it highly flexible while the DUI criminal hearing takes place in a courtroom.

One has the right to legal representation from an attorney at their own expense. Since representation by an attorney is not mandatory, you have the right to represent yourself, review the evidence against you and even cross-examine witnesses presented by the DMV and their testimony. You also have the right to testify for yourself.

Once the hearing is over, the ruling must be in writing. In case it is against you, you have the right to appeal the decision at a supreme court or request the department to review the verdict. 

By Vehicle Code 13353 & 13353.2, if you request a review after an Administrative Per Se (APS), the Department of Motor Vehicles expects you to pay a $120 fee. In the event the analysis done by the department suspends your driving privileges for 30 days in pursuant of section 13557, you will be issued with a restricted driver’s license.

A driver also has a right to Subpoena witnesses or paperwork, introduce evidence without a lawyer, and full and fair consideration of facts by an impartial party.

If you don’t have a lawyer, reviewing the evidence that you will be challenging in a DMV hearing by yourself is critical. Call or submit a written request to analyze and obtain discovery if the California Department of Motor Vehicles fails to provide the proof automatically. Persons who don’t request for an administrative hearing have no right to review the evidence held against you.

If you are planning to have witnesses, you have the right to subpoena. It allows you to compel witnesses to attend a hearing. Even if the witnesses appear voluntarily, you are required by law to pay their fees and mileage covered to appear in the trial.

During the hearing, you can provide evidence such as photos from the scene, medical reports, and collision records. If your witnesses do not appear in court, written testimony from them can also be presented in court, as long as the witness whose proof is being presented knows something about the case. If discovery is displayed on your behalf, it is kept by the DMV as official Administrative hearing Record hence you can’t have it back.

For witnesses with impairments and might need a sign language interpreter, you should notify the DMV so that they can put measures in place to provide you with one.

A restricted license is a license that is issued after the driver’s license has been suspended to help you in the course of employment, like when going or coming from work or attending driving under influence school lessons.

To acquire the license, you must fill the SR22 form to get the restricted license or have the original one reinstated. An administrative license suspension allows you to purchase the permit after 30 days while for court –triggered suspension, the driver’s license is issued right away.

It is also possible to be issued with an IID restricted license, but first, you must complete SR-22 form, complete a DUI school program and Pay the fees required to obtain the permit. The two licenses differ in that for drivers with IID; you can drive anywhere you want, but for a restricted license, you must operate within the course of employment or DUI School.

A restricted driver’s license will be issued under the following conditions:

1. The driving under the influence program will report you to the DMV if you fail to take part in the program and will certify your successful completion to the same department.

2. The driver who has committed an offense was under the age of 21 years during the violation but can prove he or she was financially responsible.

3. The restriction will last for five months

4. The department will suspend the restricted driver’s license of anybody who is reported to have dropped out of the DUI program but through giving a notice of suspension which takes effect immediately upon receipt.

5. If the person was driving a commercial vehicle at the time of DUI arrest that led to the suspension of driving privileges, by Section 13353.2, the department would issue a class C or M driver’s license. The license will be subject to the requirements of subdivision (a). However, the challenge is that one will not use the license when traveling while in the line of duty.

If you are a first time DUI offense arrestee, the DMV will try hard to suspend your driver’s license because of violating APS. If you request a DMV hearing, the license will be put on hold. Failure to request a hearing means you are going to lose your driving privileges. A license might be suspended for a first time DUI offense if the blood alcohol concentration of the driver at the time of violation was 0.08 or above. However, if the BAC is below this limit, you will retain your driving privileges.

Once your BAC results show that the BAC was above .08, you will face an administrative hearing, and chances of retaining your driver’s license will be minimal. Hire a skilled attorney at this point to represent you. Winning the case means you will still have your privileges but losing means losing rights or driving under restrictions.

When one loses a DUI DMV hearing for a second offense within ten years, then their driver’s license may be revoked for two years. For DUI arrests that involve alcohol alone, and not a combination of alcohol and other drugs, or if the blood alcohol concentration was not above 08%, then you qualify for a restricted driver’s license after 90 days. To be eligible for the license, however, one must adhere to the conditions outlined in California Vehicle Code 13352, present discovery or evidence of enrollment in an 18 month or 30 months California DUI school, or submit proof of IID installation in their car.

If you caused injury to another person during the incident that led to a DUI arrest, you would be facing three years of license suspension. On the other hand, failure to take a blood test can lead to a two years license revocation. If you are a second offense DUI arrestee in California today, you can continue enjoying your driving privileges as long as an IID is installed in the car for a year.

Third time DUI arrestees also face three years of license suspension when they lose a DUI DMV hearing. However, if it is a third DUI offense in ten years and it has caused an injury, the license will be suspended for five years.

Losing a DUI DMV hearing for a fourth and subsequent DUI offense within ten years attracts a four-year license suspension. A fourth and subsequent offense becomes a felony, but the felony DUI arrestee can continue driving if they install an IID after a certain period determined during the DMV hearing.

In cases of under 21 DUI offenses, those arrested in such instances have violated the California Zero Tolerance Law, which makes the offense civil. When someone loses this case, he or she will face a one-year license suspension, but only if they have a driver’s license. If they don’t have one, then their privilege of obtaining a California driver’s license will be deferred for one year.

Those drivers arrested in California for driving under the influence but do not belong to the state of California face similar penalties to the residents. You can appear for the hearing in person or through a telephone call. Some people might think because they don’t belong in California, even if the license is suspended, it might not affect them in their home state. It is not true in every state because if you come from any other state aside from Tennessee, Wisconsin, Michigan, Massachusetts, and Georgia, you belong to the Interstate Driver’s License Compact. It means a DUI offense conviction outside the state will be shared with your state, and you will face sentence even at home.

Appealing the decision of a DMV hearing directly to a California Superior Court is called a writ of mandate. It is a request to the court to review and reverse the ruling of the DMV. It will cost you $2,500 to $3,500 to file a writ. Filing a writ should be done within a specific time frame, hence the need to have an experienced DUI attorney by your side.

The driver safety hearing officer on your case evaluates many aspects before making the final decision. These officers first consider if the arresting officer had probable cause to believe you were driving under the influence. Secondly, the arresting officer must have had a legal justification for arresting you, and finally, your BAC levels should have been 0.08% or more. Driving with a blood alcohol concentration of .08% or above is prohibited under vehicle Code 23152(b) while driving under the influence is forbidden under 23512(a).

For those who refuse to take a chemical breath or blood test, the question at the DUI DMV hearing does not focus on your refusal to submit the test. Instead, you are asked if the arresting officer informed you that failure to provide the test would lead to consequences like suspension or your driving privileges for a year and revocation of your license for two to three years.

Again, you are asked if you intentionally refused to submit the chemical blood or breath test even after being asked by the arresting officer to give the sample. If you are not incriminated by any evidence presented in the DUI DMV hearing, you will retain the driving privileges, and the action against you will be set aside. Below are some of the critical defenses you or your attorney can use during a DUI DMV hearing:

1. You were not driving

   If the arresting officer did not personally see you driving, the DMV fails to subpoena any witnesses or if there is no evidence to prove you were driving, then the action will be set aside based on no driving defense. If for instance you were out drinking but when you entered in your car realized you were too drunk to drive and decided to sleep, it will be an illegal arrest if a law enforcement officer finds you in the vehicle and arrested you because he or she has smelled alcohol in your breathe.

2. If you were arrested at a California DUI sobriety checkpoint, you could challenge the arrest by proving that the inspection did not meet the constitutional requirements. These requirements of a checkpoint include reasonable location, adequate safety precaution, and neutral criteria of stopping motorists. Even if you were driving under the influence, but you were arrested at an unconstitutional checkpoint, you will win the DMV hearing.

3. If you were obeying traffic laws during driving but was arrested due to racial profiling, your lawyer can argue a lack of probable cause by the supervising officer to detain you. Also, if someone is involved in an accident when not under the influence but upon arriving home started drinking, then there is no probable cause to be detained. Only an excellent attorney can help prove to the court a lack of probable cause leading to case dismissal.

4. One can also argue that the officer didn’t properly advise on the consequences of failure to submit a chemical breath or blood test. The caution is compulsory and must be read word by word, and if it was not done, then you are going to win the DUI DMV hearing. No action will be taken against you in a DMV hearing if the arresting officer did not give the admonition, willingly decided not to provide the admonition, reads you his or her interpretation of the warning instead of the actual words, and confuses you such that you don’t understand what to do. If the officer tells you that refusal to take a test could lead to compulsory suspension instead of it might lead to suspension, then the prosecution will lose the case. Spotting flaws in the paperwork can be used as an excellent defense to win the case. For instance, if the arresting officer does not sign the report, the dates of arrest are missing, the BAC results listed are incorrect and the officer cannot recall the events of the day of arrest, it will be thrown out.

5. People arrested for Violating the California Zero Tolerance Law can argue that the officer didn’t use the right procedure when making the arrest. When an underage is stopped with a DUI, the arresting officer should conduct a PAS test to determine the BAC levels. If the officer fails to lay certain foundations before performing the analysis, then it will be had for them to prove that the discovery from the chemical tests should be admissible in court. Not many officers can verify the reliability of test equipment, which helps drivers with good lawyers to retain their driver’s license. If you or the lawyers call a few expert witnesses to prove how unreliable the results being used as evidence is, then the case will be won.

6. If you didn't submit the chemical test but still argue that it was not a refusal to offer, then the case will be won. Remember, you can only face suspension if the officer can prove that you refused to offer a test. You can argue that you tried blowing the breathalyzer, but the breath was not sufficient, and the officer didn't offer to draw your blood. Also, you can say that you tried asking questions on how you should take the test, and instead, the officer assumed that you were resisting the test. Proving that there was no refusal to take the test means you will have no charges because there will be no chemical test results to show your BAC levels, and no penalties for refusal to submit a test.

7. Using a physiological explanation to explain the reason for the high blood alcohol concentration (BAC) in your body system can get the action by the DMV hearing dropped. BAC levels can be high because of issues like high protein, low carbohydrate meals, and diseases like GERD or heartburn. If you had any of these conditions at the time the analysis was taken, then you can show the results were false.

If you are to appear for a DMV hearing for a DUI offense in San Jose, CA, we invite you to contact us through 408-777-6630 for a free consultation. Our experienced attorneys at the San Jose DUI Attorney Law Firm will help you understand the DMV hearing process and offer the best defense to ensure you retain your driving privileges.