Driving Under the influence is one of the crimes prosecuted harshly in California. For one, you will be subject to two proceedings: the DMV administrative hearing and criminal court proceeding. You must win these proceedings, failure to which your driver’s license will be suspended.
When it comes to the DMV hearing, you must act fast since the suspension comes almost immediately after the arrest. You may not understand how the DMV works, so you need a DUI defense attorney to guide and help you fight the suspension.
By using an Orange County Criminal Lawyer, you could convince the DMV not to suspend your license so you may continue driving as you solve your DUI court case. Reach out to us as soon as you’re arrested so we can start working on your case right away.
Overview of the DMV Administrative Hearing
A DMV (Department of Motor Vehicle) hearing is a hearing conducted at the DMV offices instead of criminal courts. This hearing is formally referred to as Driver Safety Administrative Per Se (APS) hearing. The primary issue that this hearing usually addresses is whether your privilege to drive is to be suspended due to your arrest for drunk-driving or not.
If the police place you under arrest for DUI, they will seize your license and give you a temporary one, which is pink in color. The temporary driving privilege is valid for only thirty days. Most importantly, the temporary license also notifies you that you have the legal right to a DUI DMV hearing to stop the suspension/revocation of your driving privilege.
However, you have to request the hearing within ten days of your arrest for it to happen. Failure to which, the DMV will automatically suspend your license after the validity of the temporary driver’s license elapses. Once the suspension period ends, you can reinstate the license after:
- Enrolling in DUI school program
- Paying a reinstatement fee of $125
- Submitting an SR-22 form
- In certain situations, install an IID in your auto.
But if you demand the hearing, the license suspension will be paused, pending the DMV findings. Should you prevail in the hearing, the suspension won’t occur. Note that the hearing is recorded and can be held in person or by telephone. The administrative hearing is conducted before a hearing officer of the DMV. The officer often doesn’t have any formal legal training.
During the hearing, you are made aware of the basis for the DMV’s action, and you have the chance to assess and contest the proof that the DMV has against you. You can also present your evidence, testimony, and witnesses to convince the hearing officer to rescind or modify their action to suspend your license.
The rules controlling the DMV administrative hearing are outlined in the Administrative Procedures Act (Government Code), the state’s Vehicle Code, and different Appellate & Supreme Court findings or rulings. After the proceedings, the hearing officer decides whether to modify, sustain (uphold), or set aside (rescind) the DMV’s action.
Your Rights at The Hearing
DMV administrative hearings are more relaxed compared to criminal court proceedings for DUI. For instance, the hearing is usually conducted by a hearing officer and not a judge. Also, the burden of proof is easily met in DMV hearings than in criminal proceedings. Another factor that makes them relaxed is they’re conducted in a DMV office and at times via the phone rather than the courtroom.
However, despite these informalities, you still have legal rights that should be observed. You are entitled to legal representation by your lawyer at your expense. By this, it means unlike in DUI court proceedings, the DMV won’t appoint legal counsel for you if you’re incapable of affording your own.
You’re also entitled to scrutinize the DMV’s evidence and cross-examine the testimony from their witnesses. You also have the legal right to subpoena & present witnesses and testify on your behalf.
After the hearing, you’re entitled to be given the hearing officer’s ruling in writing. In case the officer rules against you, you’re entitled to request the DMV to review that decision and the legal right to appeal the officer’s ruling to the Superior Court.
After or on Jan 1st, 2003, the new law authorizes the DMV to charge the defendant $120 for a departmental review after an APS hearing. Any questions concerning the fee are addressed to the DMV office where your administrative hearing was held.
Requests to appeal or for the administrative review of the hearing officer’s ruling in court have to be completed within a specified period based on the kind of hearing and as outlined in the state’s Vehicle Code. These periods plus other specific details regarding your legal rights are outlined in the notice of the hearing officer’s decision.
Scheduling a DMV Administrative Hearing
Go through the notice you got guiding you on the DMV’s suspension of your driver’s license. In case the notice shows you’re entitled to an administrative hearing, you only have ten days after receiving the notice to demand the hearing. Failure to request the hearing within the stipulated period forfeits your legal right to the hearing altogether.
You can request it by contacting the Department of Motor Vehicle driver safety office in your local area. This is where the hearing is conducted. Driver safety offices differ from those traditional field offices of the DMV where you register your auto or obtain your license. When requesting this hearing, ensure you identify yourself by your full name, date of birth, and driver’s license number. You’ll also be required to verify your email address.
If you retain a private drunk-driving lawyer for representation in your criminal court case, they are likely to request & schedule the DMV administrative hearing on your behalf. But you need to have hired them within ten days. They may also attend the hearing for you, and if this happens, you wouldn’t need to appear if you won’t testify.
If you or your witness requires a language or sign interpreter contact the DMV office and request them to pair you with the applicable interpreter for your hearing. Also, keep in mind that if you demand a hearing but fail to attend, the DMV will go ahead and conduct the hearing regardless.
Hearing locations are strategically positioned in a way that they’re accessible to everyone, including people with disabilities. But you want to check with the department beforehand to ensure accessibility is possible. Additionally, if you know a person with a disability who is planning to appear at your hearing, contact the DMV soon enough so they can make appropriate accommodations.
The Relationship Between a DMV Administrative Hearing and a DUI Criminal Court Case
The DMV administrative hearing is a proceeding regarding your driver’s license and the factors surrounding your arrest, and not whether you’re guilty or innocent of driving while intoxicated. Your guilt or innocence is determined in criminal court proceedings. During the DMV hearing, only these issues are discussed:
In case you submitted to DUI breath, urine, or blood testing (if applicable):
- Did the police officer have any valid reason to believe that you were operating an auto while drunk?
- Were you lawfully arrested or detained while on probation for DUI?
- Were you operating a vehicle with a .08% or higher blood alcohol content?
If you failed to complete or refused to undergo a DUI breath, urine, or blood testing (if applicable):
- Did the law enforcement officer have any reasonable cause to believe that you were operating an automobile while intoxicated?
- Were you legally arrested or detained while on probation for DUI?
- Were you informed that should you fail to complete or decline to perform DUI breath, blood, or (when applicable) urine testing, your driver’s license would be revoked for three or two years or suspended for a year?
- Did you fail to complete or decline undergoing breath, blood, or urine testing after the law enforcement officer requested you to do so?
After these issues have been discussed, the hearing officer either:
- Decides to revoke/suspend your driving privilege, depending on the supposed DUI.
- Reverses the suspension/revocation.
The DMV hearing officer is supposed to rescind the action then permit you to restore your driver’s license should you successfully disprove any of the above issues or effectively prevent incriminating proof from being used at the hearing.
However, the DUI criminal court proceedings and the DMV hearing are closely related in various aspects. For instance, testimony acquired during the DMV hearing might persuade the prosecution to drop the charges against you or agree to lowered charges during plea bargain talks.
Again, if the court finds you innocent of your charges during the jury or bench trial, the verdict compels the Department of Motor Vehicles to reissue your driving privilege. But pleading no contest or guilty to a lowered charge or a court dismissal doesn’t affect in any way the DMV’s decision to suspend/revoke your license.
The primary difference between the DUI court trial and DMV hearing is a court trial is more comprehensive. Defense lawyers have more time to scrutinize different legal defenses to challenge your drunk-driving charge.
And the most noteworthy difference between these two is the DMV administrative hearing is presided over by a hearing officer. On the other hand, a drunk-driving jury trial is presided over by a panel of unbiased jurors.
That’s why it’s critical to retain a DUI defense lawyer who has experience with both DUI court trials and DMV administrative hearings. Since the two proceedings are conducted differently, you want to have an attorney who comprehends both systems.
Winning at a DMV Administrative Hearing
These are the examples of the different drunk-driving defenses that your DUI defense lawyer may argue fat the DMV administrative hearing:
The Officer Didn’t Tell You the Repercussions of Declining to Take a Chemical Blood or Breath Test.
Should you decline to undergo a chemical breath, blood, or urine (if applicable) testing, the officer should advise that your privilege to drive will automatically be suspended/revoked for a year. This advice should be in writing. Then, the law enforcement officer is required to read it to you word for word. In case they fail to do so, you might win your administrative hearing.
Since most officers make several DUI arrests, they often fail to do what they’re required. Should the officer:
- deliberately opt not to advise you,
- forget to advise,
- recite their own version of the warning rather than reading it, ending up to confuse you to a point you don’t know what’s expected of you
- Inform you that the refusal might lead to a compulsory suspension; rather than saying the refusal will lead to a suspension, the hearing officer may nullify the suspension decision.
You Weren’t Driving
In case the law enforcement officer didn’t personally see you drive and either:
- there’s no other proof that may reasonably indicate you were operating the vehicle, or
- the DMV doesn’t subpoena any eyewitness who saw you drive; the hearing officer shouldn’t suspend your license.
For instance, suppose you were in a club drinking, and after having enough, you returned to your vehicle to drive home. But at that moment, you realize you shouldn’t be operating an auto, so you decide to sleep your impairment off. You recline your car seat and close your eyes. An officer approaches you to find out if you’re alright and realizes that your breath smells alcohol and arrests you for drunk-driving. The hearing officer would consider this an illegal arrest because you didn’t drive while intoxicated.
The Officer Didn’t Have Any reasonable Cause to Arrest You for Driving While Intoxicated.
If the law enforcement officer didn’t have any valid reason to arrest you for DUI, the DMV hearing officer wouldn’t suspend/revoke your license. Your attorney may argue several reasons why the police didn’t have probable cause or reasonable suspicion for arrest. For instance, maybe you were:
- Complying with all the traffic rules and stopped you only due to racial profiling.
- Involved in a crash but didn’t start consuming alcohol until you reached home where the police came to ask you questions about the accident
The Officer Arrested You at an Unlawful DUI Checkpoint
If you’re placed under arrest at a DUI checkpoint that doesn’t comply with the legal requirements outlined under DUI law, then the arrest isn’t lawful. This means even if you were driving while intoxicated, the illegal detention would overrule that fact, which also means the DMV won’t suspend your license.
You Didn’t Decline to Undergo Chemical Testing
It could be that you didn’t refuse to do a DUI chemical test. Perhaps you tried blowing into the Breathalyzer, but the breath samples weren’t sufficient, and you weren’t offered a DUI blood test as a second option. Perhaps you were merely asking questions to do with the process, and the police officer misinterpreted the situation as hostility and presumed you were declining the test.
What Follows After You Win Your DMV Administrative Hearing?
In case you prevail in your DMV hearing, then the DMV hearing officer rescinds the decision to suspend your driving privilege, it means you’ll retain your license. It also means the prosecutor may offer you a favorable deal during plea bargaining for your drunk-driving court case. In case the DUI court proceedings reveal significant mistakes in the prosecution’s case, it might even compel the prosecution to drop your drunk-driving charges altogether.
However, since the court and DMV hearing processes are completely distinct proceedings, prevailing in the DMV administrative hearing doesn’t automatically mean you’ll win your DUI court case. For any reason, the prosecution could still believe they have strong enough proof to go to trial. Should the judge ultimately find you guilty of DUI, they have the authority to suspend or revoke your license. That’s why you have to retain a DUI defense lawyer who knows what to do to win both DMV and court cases.
What If You Lose?
Even if you lose the DMV hearing, your drunk-driving lawyer may have gathered info during the proceedings that could persuade the prosecution to reduce your charges. Specific plea deals or your win at the court trial may also compel the hearing officer to rescind the decision to suspend your license even if the suspension has already been effected.
However, as concerns your license, its revocation/suspension goes into effect when you lose the DMV hearing. The circumstances and length of the suspension/revocation are based on whether it’s your 1st, 2nd, 3rd, or subsequent crime.
Driving Privilege Suspension for a First DUI Offense
If you’re a first offender, your license is suspended for up to ten months after losing the DMV hearing. After your first month of suspension, you can obtain a restricted license. The license would enable you to drive to & from DUI School and work only, and you can acquire it only after:
- Enrolling in a DUI School Program
- Paying a reinstatement fee of $125
- Submitting an SR-22 form
In case the drunk-driving resulted in another person’s sustaining an injury, and then you fail at the DMV hearing, the hearing officer might suspend your privilege to drive for a year. In case you declined to undergo a chemical breath or blood testing, the license is also suspended for twelve months. And in any of these cases, you won’t have the chance to obtain a restricted privilege to drive. This also applies where you were operating a vehicle with a blood alcohol content of .01% or more, and you were on DUI probation.
License Suspension/Revocation for a Second DUI Offense
If it’s your second driving offense and you fail to prevail at the DMV hearing, the hearing officer suspends your privilege to drive for twelve months. You may qualify to obtain a restricted license after a year if you comply with the conditions we mentioned above.
If your drunk-driving offense involved only alcohol and there’s no aggravating factor, you may qualify for a restricted driving privilege after ninety days only if you:
- Comply with the conditions we outlined above.
- Submit evidence of admission in an eighteen-month or thirty-month DUI school program
- Present proof of having an IID installed
In case the DUI resulted in another person sustaining injuries, the license suspension will be three years, and you may obtain a restricted driving privilege after the 1st year of suspension, as long as you adhere to the above procedures.
If you declined to undergo DUI chemical testing, the hearing officer suspends your driving privilege for two years. The reason for a two-year suspension is the license is suspended for a year for a chemical test refusal and another year for every prior DUI.
Driving Privilege Suspension for a Third DUI Offense
If it’s your third drunk-driving crime and then you lose your DMV administrative hearing, your license will be suspended for up to three years. But you can obtain a restricted license after a year. If your drunk-driving offense led to injury, the suspension is for up to five years, and you may qualify for a restricted driving privilege after a year of suspension. And if you declined to undergo DUI chemical testing, your privilege to drive is suspended for three years.
Driving Privilege Suspension for a Fourth or Subsequent DUI Offense
If you are facing a DMV hearing for a fourth/subsequent (felony) offense, then lose, your license will be suspended for up to four years. You may obtain a restricted license after a year.
Keep in mind that these punishments do vary slightly for motorists with commercial licenses.
Appealing the Hearing Officer’s Decision to Suspend Your License
If you should’ve won the hearing, but the hearing officer merely understood everything wrong, you’re entitled to appeal their decision. You could appeal directly to the state’s Superior Court or request the DMV to perform a departmental review. The timeframe and instructions to appeal the hearing officer’s decision are outlined in the notice of the DMV’s decision after your hearing.
In case you file the appeal directly with the court, you’ll do so by filing a Writ of Administrative Mandamus. This is a request that the Superior Court reviews and reverses the ultimate DMV’s decision. Bringing a Writ of Administrative Mandamus on this matter usually costs up to $3,500. If you’re unsatisfied with the Superior Court’s decision, you could appeal with the Court of Appeal.
These two processes involve specific deadlines and usually operate under strict rules. Consequently, you have to retain a skilled appeals lawyer should you opt to appeal the DMV’s decision to suspend your license.
Contact a DUI Criminal Defense Attorney Near Me
At Orange County Criminal Lawyer, we have accomplished lawyers who will help you achieve the best possible outcome at your DMV hearing. We do not stop there. We will also build a strong defense strategy to grant you a favorable outcome in your DUI court case. Call us at 714-262-4833 to schedule a cost-free consultation with one of our top DUI defense lawyers.