When a person is arrested for DUI, there are two cases that proceed. The first is the criminal case in which a person can be found guilty of violating the law and be sentenced to jail, fines and probation. The second is the administrative case, which can lead to the loss of driving privileges. Each of these cases has their own unique procedures, burden of proof and purposes.
DMV Administrative Hearing Basics
An administrative hearing is an opportunity for a person to contest the DMV’s act of removing his or her driving privileges. However, this process is not automatic. A person must affirmatively request a hearing within ten days of receiving notice of the action against the individual’s driving privilege. The hearing may take place in person or may be conducted over the telephone. The hearing is held in front of a Driver Safety Hearing Office of the DMV.
If you have been arrested for drunk driving offense (DUI) in California, you must request a DMV hearing within 10 days after the arrest, or your driving license will automatically be suspended 30 days after the date of the arrest.
Individuals arrested for DUI are often given a notice advising them of the planned action against their driving privilege. The individual only has ten days from receiving this notice to schedule a hearing. Individuals can contact the Driver Safety Branch Offices to schedule the hearing. If the individual requests a hearing but does not attend it, the department will proceed with the case without the individual’s participation.
At the beginning of the hearing, the individual is informed of the legal grounds for the DMV’s planned action. He or she has the right to review the evidence from the DMV and to challenge it. Additionally, he or she has the right to have witnesses testify and to offer his or her own testimony in support of his or her version of the events. Additional rights include:
- The right to be represented by an attorney
- The right to cross-examine the testimony of any witnesses presented by the department
- The right to be notified of a decision in writing
- The right to request an administrative review of the decision[1]
- The right to appeal the decision to superior court.
Contact us today to request DMV hearing on your behalf for free.
The department has the right to modify, rescind or pursue the action of suspending the driver’s license. It is possible for there to be contradictory rulings in the administrative hearing and the criminal case. For example, a person may lose at the administrative hearing but be found not guilty in the criminal case. Likewise, the hearing officer may decide to set aside the suspension but the individual can still be found guilty in criminal court.
Issues Discussed in DMV Hearings
The DMV hearing is much different than the criminal aspect of the case. It is concerned only with the driver’s continued privilege to drive and the circumstances surrounding the arrest. The hearing officer does not attempt to establish whether or not the individual was actually guilty of drinking and driving. If the driver submitted to a blood test, the hearing officer may inquire into the following issues:
- Did the law enforcement officer have reasonable cause to believe that the individual was driving a motor vehicle in violation of the law?[2]
- Was the individual placed under lawful arrest?
- Was the driver driving a motor vehicle when he or she had a BAC of 0.08 percent or more?
If the hearing is based on a person’s refusal to submit to a blood or breath test, the legal issues include:
- Did the law enforcement officer have reasonable cause to believe that the individual was driving a motor vehicle in violation of the law?
- Was the individual placed under lawful arrest?
- Was the individual informed that if he or she refused to submit to a test of his or her blood, breath or urine that his or her driving privilege would be suspended for a year or revoked for two to three years?
- Did the individual refuse to submit to a blood, breath or urine test after the law enforcement officer requested the test?
Loss of Driving Privileges
If a person loses at his or her DMV hearing, the DMV will suspend the license for at least one month for a first time DUI. For a second DUI offense within ten years, a person’s driver’s license may be suspended for one year. For a third DUI offense within 10 years, the DMV may revoke a driver’s license for three years and require the installation of an ignition interlock device.
Restricted License
Even if a person loses his or her driving privileges because of a DUI DMV hearing, he or she may be able to regain some of these privileges during the suspension. He or she may apply for a restricted license for the purpose of driving to and from school and work if he or she meets the following conditions:
- The 30-day mandatory waiting period has lapsed
- He or she paid the reissue fee
- He or she can show proof of enrollment in a DUI treatment program
These are the requirements for a first time DUI.
Legal Defenses
There may be a number of viable defenses that a person can raise at a DMV hearing for DUI. For example, some of the following circumstances may be present:
- The individual was not actually driving
- The law enforcement officer did not have lawful cause to place the individual under arrest
- The law enforcement officer was not properly trained to administer the breath test, placing its validity in question
- The test was not administered within three hours of driving
- The law enforcement officer did not observe the individual for 15 minutes before administering the breath test[3]
- The individual was arrested at an illegal checkpoint
- The breath testing equipment was not accurate
- The law enforcement officer lacked probable cause to detain the individual
An experienced California attorney can examine the case and determine which legal defenses may apply and develop a legal strategy around them.
References:
[1] See California Vehicle Code §§13353 and 13353.2 permitting the department to collect a $120 fee for a departmental review following an Administrative Per Se hearing.
[2] See California Vehicle Code Sections 23140, 23152 and 23153. Section 23152 provides the presumption of driving under the influence based on the person’s blood alcohol percentage. Section 23140 defines driving under the influence in which a presumption is not based on a blood alcohol content reading. Section 23153 California Penal includes the following definition: Driving under the influence and causing bodily injury to another person; blood alcohol percentage; presumptions. (“(a) It is unlawful for any person, while under the influence of any alcoholic beverage to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver. (b) It is unlawful for any person, while having 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver. In any prosecution under this subdivision [that is, California DUI causing injury], it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after driving. . . . (e) It is unlawful for a person, while under the influence of any drug, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver. (f) It is unlawful for a person, while under the combined influence of any alcoholic beverage and drug, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver”) (Your blood alcohol concentration (or “BAC”) is the amount of blood that is present in your bloodstream.)
[3] Title 17 of the California regulations outline the proper breath testing procedures, including the administration, collection, storage and analysis of breath and blood tests. According to this Section, the law enforcement officer is required to observe the suspect for at least 15 minutes immediately prior to conducting a breath test and ensure that he or she does not vomit, regurgitate, eat, drink or smoke. Additionally, Title 17 regulates the maintenance and operation of breath testing instruments, including having an accuracy check conducted every ten days or 150 blows.