When you are arrested for Driving Under the Influence, you have an administrative hearing (DMV) and the criminal court to deal with. The outcome for the two cases is different– this article will deal solely with the DMV. The purpose of the DMV is to determine if the defendant’s driving privileges should be suspended.
The DMV hearing may not seem as serious as a criminal case, but the defendant’s “Administrative Per Se” (APS) action should not be taken lightly. After a DUI arrest in California, the DMV proceeds independently to suspend your driver’s license. You or your attorney must contact the DMV office within ten days of the arrest to contest the DMV action. A license suspension imposed by the DMV under APS is independent of any criminal penalty imposed.
DMV hearings are less “formal” than criminal cases. In fact, you can “appear” by telephone. There is no judge and jury, but rather a DMV hearing officer (who acts as both—which in my opinion, can be a detriment). The burden of proof is much lower than beyond reasonable doubt making it easier for the DMV to take or suspend your license for a specified period of time.
What happens at the hearing? Your attorney will present evidence and challenge the evidence against you such as the results of the chemical tests or field sobriety test. The DMV can subpoena witnesses who were at the scene and the arresting officer(s).
I just had a DMV hearing and the arresting officers were not at the scene to identify and witness who was the driver at the time of the incident. This is a critical element of a DUI case (the defendant must be identified as the driver at the time of the DUI). An Uber driver who happens to be driving by spoke to one of the arriving officers and stated who was behind the wheel of the car.
At the first DMV hearing, notwithstanding being subpoenaed to appear, the third party (Uber) driver, failed to appear. The hearing officer continued the hearing and extended my client’s ability to drive until the next hearing. We just had the hearing last week—the hearing officer had one of the arresting officers at the hearing but no Uber driver. Additionally, the officer who interviewed the Uber driver and wrote the report as to what the Uber driver stated (defendant was the driver) was not present. Yes, the critical officer was not present.
The element of defendant/driver was not proven. I made several objections to the DMV case and I am cautiously optimistic that the result will be positive for my client. But for those, who “lose” their DMV hearing, the department will suspend your driver’s license. For example, if you refuse to take the chemical test (breath or blood) after you are lawfully ordered to do so, your driver’s license may be suspended for one or more years.
How about if you are under 21 years old? California has a “zero-tolerance” policy for alcohol consumption by anyone under the age of 21. Any driver under 21 who takes a preliminary alcohol screening (PAS) test or any other chemical test and measures a 0.01 percent or higher BAC level will have his or her driver’s license suspended for one or more years.
California authorizes the DMV to refuse to issue or renew a driver’s license to any driver who cannot safely operate a motor vehicle for reasons related to a physical or mental condition, including alcohol dependency or abuse. The law permits the DMV to administer certain tests upon the renewal of a license. However, a driver has a right to request a hearing within 10 days of being notified that his or her license is being suspended based upon a mental or physical disability or condition.
What about commercial drivers? In California, drivers of commercial vehicles are held to a higher standard of accountability. For example, the “legal limit” is lower, 0.04 percent rather than 0.08. For those commercial drivers, DMV will attempt to disqualify you from obtaining a commercial license for one or more years, even if you are only “suspected” of driving a non-commercial vehicle in violation of the 0.08% limit. A second offence can result in the loss of your commercial driver’s license—-for life.
My clients expect that both their criminal case and DMV case are handled efficiently and effectively. Since criminal convictions and DMV license suspension may result in severe punishments, including but not limited to, incarceration, high fines, and unemployment (especially for commercial drivers), it is to your best interest to call my office immediately. Navigating the criminal court arena and DMV is not an easy “task.”
You can reach me at [email protected] or call my office at 310-601-7144