Driving is a privilege in California. Once you secure a driving license, you would not want to risk losing it for any reason. Having your license suspended or revoked can feel like losing a section of your life. The Department of Motor Vehicles, abbreviated as DMV, can suspend or revoke your license for several reasons, the most common being driving while intoxicated by alcohol or drugs. You have to follow the required legal procedure to challenge the decision of the DMV if it seeks to suspend or revoke your driving license.
The law allows you to represent yourself at all administrative hearings. However, the DMV process is complex and frustrating, and you have a higher chance of success when you seek the services of an attorney. At the San Diego DUI Attorney, we have experienced attorneys always ready to help you seek justice if you face a DMV notice to revoke or suspend your driver’s license. We have represented many clients during DMV hearings and obtained favorable results for their cases.
Suspension Or Revocation Of Your Driver’s License By The DMV
The DMV can suspend or revoke the driver’s driving license if you violate specified laws under the vehicle or penal codes. Your driver’s license can be suspended or revoked if you are arrested for driving with a blood alcohol content (BAC) of 0.08% or more and are 21 years or older. The DMV can also suspend or revoke your license for underage DUI if your BAC is 0.01% or more and you are under 21 years old. The suspension or revocation of a driver’s license can also result if a commercial driver’s BAC is 0.04% or more. The DMV will exercise its mandate if you fail to request a hearing.
You or your attorney should request a hearing within ten days after a DUI arrest. The DMV can automatically suspend your driver’s license if you fail to secure a hearing.
DUI And DMV Hearings
The prosecutor in a DUI court has all the burden to prove your guilt. A DMV hearing, on the other hand, does not focus on whether it can be proven that you have committed a DUI or not. For example, in a DUI, you can be accused of having driven with an alcohol content of 0.08% or more. In this case, the judge will not only focus on whether you were intoxicated but will also consider whether arrest and detention were legal.
The DMV officer will focus on whether the chemical test showed a BAC of 0.08% or more within three hours of your driving time. The DMV has the advantage under Penal Code 664 of being able to presume all other facts as sufficiently proven. This can happen as long as the sworn report is filled out correctly and signed and the information in the DS367 reveals a BAC of 0.08% or higher.
However, you can rebut the DMV’s presumption. Unlike in the criminal court case, the administrative hearing regulations and procedures differ. Sometimes, the evidence or testimony gathered at the DMV process can be necessary in a criminal case. For example, evidence like sworn testimony from a subpoenaed officer at the DMV hearing can be used in a criminal case. This evidence can persuade the judge to offer you a lesser punishment or drop your charges.
The judge can fail to issue a guilty verdict on the VC 23152(b) charges at the bench trial. This decision could have the power to overturn the suspension issued by the DMV if the suspension was based on the evidence that you drove with a BAC of 0.08% or more. Sometimes, however, you can plead guilty to a reduced charge. The judge can also dismiss your charges without actual acquittal. This dismissal can have no bearing on your DMV suspension or revocation. An acquittal cannot overturn a DMV chemical test refusal revocation in refusal cases.
The significant difference between a DUI proceeding and a DMV hearing is that a trial focuses on whether you are guilty or not in a criminal court. You must plead guilty in a criminal court for the judge or jury to charge you. At a DMV hearing, an officer hired by the DMV decides whether your driving privileges should be administratively suspended. This is separated from a possible suspension triggered by a court conviction.
You will sit before a panel of 12 impartial jurors at a jury trial. Before you are convicted of drunk driving charges, the jurors must unanimously agree that you are guilty. A DMV officer will assume that you violated the DUI law at the DMV administrative hearing. You must rebut that presumption to win the hearing in a prima facie case. You should retain an attorney skilled in criminal cases and the DMV hearing process to represent you in a DUI case.
The DMV Hearing Process
The DMV hearing is usually presided over by a DMV officer. The primary issue in the hearing is whether to suspend your driving privileges after a DUI arrest. After the arrest, the arresting officer will confiscate your driving license and serve you with a pink ‘’notice of suspension’’. The notice of suspension will act as a temporary license for a period that does not exceed 30 days.
The notice will also inform you that you can fight the suspension at the DMV hearing. You are entitled to a ‘’stay’’ on the suspension if you request the hearing. In this case, you will be allowed to drive pending the ruling of the DMV hearing or the court case. Your driver’s license will automatically be suspended after 30 days if you fail to request an Administrative Per Se (APS) hearing within 10 days. Failing to ask for an APS can waive your right to challenge the administrative suspension.
You can be eligible for a restricted license if you face a driver’s license suspension. However, you can only qualify if you fulfill the following:
- Enroll in California DUI school
- Submit an SR-22 insurance form and sometimes install an ignition interlock device in your car.
- Pay a $125 reinstatement fee.
Your driver’s license suspension will be delayed while awaiting the hearing results after presenting your DMV hearing request. Your driver’s license will be reversed if you win your DMV hearing.
Your Rights At The DMV Hearing
A DMV hearing for DUIs is more relaxed than court proceedings. For example, a DMV officer with limited knowledge of legal matters usually presides over the DUI hearing instead of a judge. A DMV hearing is also relaxed because the evidence required to prove you guilty of violating one of the specified DUI laws is easily satisfied. This hearing can also happen in an office or via the phone.
However, you are still entitled to significant rights during a DMV hearing despite the informality. First, the law allows you to hire a lawyer to represent you at the DMV hearing at your own expense. If you cannot afford an attorney, the court can hire one for you in a criminal case, but the DMV cannot hire one for you. The following are your rights at the DMV hearing:
- Subpoena and present witnesses, including the arresting officer
- Review and fight the evidence like chemical test results and the police report
- Cross-examining the witnesses
- Have witnesses testify on your behalf
Booking The DMV Hearing
You should seek the services of a DUI attorney within the initial ten calendar days of your arrest. The attorney will contact the DMV and request the hearing date, the evidence, and a stay on the suspension. You should call the Driver Safety Office and request a hearing if you cannot hire an attorney within ten days of your arrest. You should act fast to avoid missing the deadline. You will automatically lose your right to the hearing if you fail to call the office or have your attorney do so within the time limit.
If you seek the services of a DUI defense attorney to represent you, the attorney will set a DUI DMV hearing on your behalf. Your attorney can also represent you since your presence at the DMV is optional. This will depend on your case’s circumstances and whether you will be required to present evidence.
Winning Your DMV Hearing
The scope of the DMV hearing in California is broad. Sufficient preparations and extensive legal research can enhance your possibility of winning the DMV hearing. The following are some of the factors the hearing officer can consider:
- Whether the arresting officer had reasonable cause to believe that you committed a traffic offense
- Whether the arresting officer had probable cause to assume that you were driving while intoxicated
- Whether you were operating the vehicle with a blood alcohol content of 0.08% or more, or 0.01% if under 21 years, or 0.04% or more if driving a commercial vehicle with a Class A license
The issue of your BAC can become the central point at your DMV hearing if you refuse to undergo a blood DUI or chemical test. In this case, the DMV can focus on the following issues:
- Whether the arresting officer had probable cause to assume that you were driving while intoxicated
- Whether the arresting officer ordered you to provide a breath or blood test after your arrest
- Whether you were informed by the police that refusing to undergo a chemical test would attract the suspension of your license for one year or having the license revoked for two or three years.
- Whether you failed or refused to submit to a blood or chemical breath test when the police ordered you to give a sample
The DMV hearing officer presiding over your DMV hearing has the option of doing the following after determining the above issues:
- Suspend your driver’s license, also referred to as ‘’sustaining the action.’’
- Not suspending your driver’s license, also referred to as ‘’setting the action aside.’’
Your DUI defense attorney can present the following defenses at the DMV hearing to challenge your possible license suspension:
There Were Physiological Reasons For Your Falsely High BAC Level
Substantial circumstances could have enhanced your BAC to 0.08% or more. The factors might not be associated with the quantity of alcohol you consume. These factors can include:
- Medical reasons like GERD and acid reflux
- High protein and low carbohydrate diets can lead to false high BAC results
- Fermentation in the blood
- Residual mouth alcohol
You should discuss with your attorney if you suffered from the above conditions when you provided your breath sample. Your attorney can contact an expert witness, including a physician specializing in the condition and a toxicologist.
The Law Enforcement Had No Probable Cause To Detain You For DUI
The law requires the police to have reasonable cause to arrest you for driving while intoxicated. The subsequent arrest can be unlawful if the police have no reasonable cause. The officer presiding over your hearing must also set your driver’s license suspension aside during the DMV hearing. Your attorney can argue why the law enforcement had no reasonable cause to arrest you. For example, perhaps you were:
- Complying with all traffic laws and were stopped only on an officer’s hunch that you were leaving a bar and would be under the influence
- Following all traffic regulations, law enforcement unreasonably believed you had committed the crime, although the act did not involve a violation of the law. You could have been the only motorist on the road but turned right at a stop sign without using the blinker. In this case, the arresting officer was too far to be impacted by the lack of use of your turning signal, and no other cars were present. Failing to use your blinker is not admissible in court as a reason for a stop.
- You were involved in a car crash where no one suffered injuries, and there were no significant damages. You did not begin drinking until you reached home, after which the traffic officers came to interview you.
The Law Enforcement Did Not Advise You On The Repercussions Of Refusing To Submit To A Blood Or Chemical Breath Test
The police must inform you that your license can be suspended for one year if you refuse to undergo a breath or a DUI chemical test. Most drunk-driving drivers are always rushed through the motions. Your license suspension DUI case can be dismissed at the DMV hearing if the police do the following:
- Tell you that refusing the test ‘’may’’ or ‘’can’’ result in a suspension, but not using the word ‘’will’’ or the same word indicating the high chances or certainty that refusing to complete a test will lead to a revocation or suspension.
- Recite the admonition mechanically and ignore the motorist’s questions that denote the motorist is confused. This is also known as officer-induced confusion.
- Leaving out the critical parts of the warning or failing to give the warning
You Did Not Refuse To Submit To A Chemical Test
You can allege that you did not refuse to submit to a chemical test. You might have failed to blow because you lacked a strong breath. Maybe the police did not provide an alternative way to draw blood. Law enforcement might also have been unable to understand your questions regarding the process and termed you hostile. The police can also claim that you refused to submit to a chemical test even if you were not given a fair chance.
Sometimes, you can say you will not undergo a chemical test, but law enforcement fails to properly admonish you of the repercussions of refusing or failing the test. You can also use this as a defense against refusal claims. Your driver’s license cannot be suspended if there are no BAC results and you did not refuse or fail to undergo the test as requested.
There Were Serious Mistakes With The Officer’s Paperwork
The police must ensure that they fill out specific paperwork and reports after arresting you for a DUI offense. The law enforcement could have forgotten to sign the paperwork. They can also have failed to report the BAC results or document the faulty dates. These mistakes can result in a favorable ruling during the DMV hearing. Some typos can be enough to denote that the sworn report is not admissible according to the business records exception to the hearsay rule. There can also be insufficient foundation to admit the document.
You Violated The ‘’Under 21 Zero Tolerance Law,’’ And The Police Failed To Lay The Proper Foundation For Your BAC Outcome
It is a crime in California to drive with a measurable level of alcohol in your breath or blood if you are a driver under 21 years old. This is known as the ‘’zero tolerance’’ law VC 23136. Underage drivers often are subjected to a preliminary alcohol screening test, abbreviated as the ‘’PAS’’ test.
The DMV cannot rely on the PAS test in adult cases over 21 years to prove that a motorist had a BAC of 0.08% or more. The PAS test can only apply to drivers under 21 years old. The DMV would have to lay a proper foundation to get the PAS results into evidence in over 21 years cases. This can require the officer’s testimony, as well as that of the person who calibrated the machine and a toxicologist.
Burden Of Proof At A DMV Hearing
The DMV officer can use ‘’a preponderance of evidence’’ standard to determine if you were driving a vehicle with a BAC of 0.08% or more. The officer can use the same evidence to determine if an under-21 motorist drove a car with a BAC of 0.01%. A preponderance of evidence means that it is more likely that the motorist violated the DUI laws.
Prosecutors in most criminal cases have a burden to prove a DUI beyond a reasonable doubt. This burden is more significant than the” by a preponderance of the evidence” burden used during DMV hearings. A driver can lose a DMV hearing because it is a civil trial, depending on a lesser standard of proof, but win in the criminal DUI proceedings.
The Repercussions Of Losing At A DMV Hearing
Your attorney can present evidence to persuade the judge to offer you a reduced plea even if you lose at the DMV hearing. The DMV can set aside your suspension if you win at trial or a specific plea bargain, even if the suspension has gone into effect. This, however, can only happen if you secure a not-guilty outcome in court on a DUI that involved an allegation of driving with a specific amount of BAC, like 0.08% or more or 0.04% or more. The DMV will set aside your suspension if a not-guilty verdict is sent to the DMV after issuing the suspension.
Appealing Your DUI DMV Hearing Ruling
The law allows you to appeal the ruling of a DUI DMV hearing if the hearing officer makes a wrong ruling and suspends your license when you should have won at the hearing. You can file your appeal directly with the Superior Court. A motorist can find the instructions and period for appealing the DMV’s ruling on the written form. The form provides information about the DMV’s decision after the hearing. You must pay a $120 non-refundable fee for the DMV review.
You are required to make your appeal through a writ of mandate if you choose to file an appeal directly to court. A writ of mandate is typically a request to the court to review and reverse the ruling of the DMV hearing. You can incur between $2,500 and $3,500 to file a writ of mandate.
Find a DUI Attorney Near Me
After a DUI arrest, you must request a hearing within ten days of the arrest. If you fail to book the hearing within this period, the DMV will automatically suspend your driver’s license when the ten-day lapses. You should never take a DMV hearing lightly because the outcome of the hearing will determine whether you retain your license or not. You should hire a committed attorney who has handled DMV hearings and understands how they work.
It is not mandatory to have an attorney represent you at the hearing. However, going alone reduces your chances of prevailing at the hearing. Contact the San Diego DUI Attorney if you need an attorney you can count on. Our attorneys will evaluate your case and present you at the DMV hearing. Contact us at 619-535-7150 to speak to one of our attorneys.
