Overview

If you have been arrested for driving under the influence (DUI), your driver license was likely taken away from you and the police officer provided a pink slip titled “Administrative Per Se, Suspension/Revocation Order, and Temporary Driver License.” This piece of paper is your 30-day temporary driver license. A person charged with a DUI needs to realize that every DUI has a civil and criminal component. The outcomes of the DMV hearing is independent from the outcome of your criminal case. The following information explains the civil (DMV) component of fighting your DUI charge. 

If you win the DMV administrative Hearing, the DMV will not take any action against your driving privilege. The DMV actions are independent of any action taken by the criminal court. The criminal court may still impose sanctions on your driver license or suspend it completely. 

You have 10 DAYS from receipt of the notice to request a hearing to show that the suspension or revocation is not justified. Do not miss this 10 days deadline! If you do not request the hearing your driver license will be automatically suspended. If you request the hearing, then the driver license cannot be suspended until the outcome of the hearing. Requesting the hearing at a later day will provide you with extra weeks/days of having a valid driver license, even after the original 30 days of temporary driver license expire. You will be mailed an new temporary license when your attorney schedules a hearing on your behalf. 

We highly recommend that you hire a criminal defense attorney for the administrative hearing. You will be surprised to find that the “prosecutor” and the “judge” are one and the same person, and he/she has no legal training. The hearing officer will rule on his own objections, and answer to his superiors if his “set aside” rate (percentage of hearing won by the licensee) is “too high”. In order to succeed, your attorney needs to know the intricacies of the bureaucratic process and exploit its weaknesses. 

DMV Administrative Hearing

We strongly recommend that you hire an attorney to represent you at the hearing. Many of our client believe that the DMV will listen to their story and take many person aspects into consideration. In reality, the DMV officer will only look at three thing:

1. Did the Peace Officer have reasonable cause to believe you were driving a motor vehicle in violation of Vehicle Code Section 23140, 23152, or 23153?
2. Were you placed under lawful arrest?
3. Were you driving a motor vehicle when you had 0.08% or more by weight of alcohol in your blood?

There are also a number of other issues that DMV may take into consideration if the licensee presents appropriate evidence. 

1. Was the blood or chemical test administered within 3 hours of driving?
2. If you were given a breath test at the police station, did the officer continuously observe you for 15 minutes before administering the test?
3. Was the police officer properly trained to administer tests?
4. Does defense evidence show a rising blood-alcohol concentration; that is, the BAC was below .08% at the time of driving.
5. Was the individual actually driving the vehicle? (Often occurs when there is an accident, and police arrives to a vehicle without a driver)
6. Since the question is BAC at the time of driving, when was the accused driving?
7. Was the device used in administering the test properly calibrated and maintained
8. Does the licensee have any physical condition which could create a false high reading on the machine, such as acid reflux?
9. Was the blood sample withdrawn, stored, and analyzed in accordance with the law
10. Did the officer properly filled out the DS 367 statement?
11. Is all evidence on the issues produced by the DMV admissible under the rules of evidence for administrative hearing?

If you win the administrative hearing:

If you win the DMV administrative Hearing, the DMV will not take any action against your driving privilege. The DMV actions are independent of any action taken by the criminal court. The criminal court may still impose sanctions on your driver license or suspend it completely. 

If you lose the administrative hearing (Alcohol):

Driving Under the Influence of Drugs

If you were arrested for driving under the influence of drugs, the .08% BAC does not apply to you. The DMV will immediately impose a six-months suspension for any conviction of a controlled substance offense, unless the court finds a “compelling circumstances” for not suspending the license. Compelling interest means “that a person or family hardship exists that requires the person to have a driver;s license for his or her own, or a member of his or her family’s, employment or medical related purposes.

How can we help?

Attorneys at Delicino & Vialtsin, LLP will present the best possible evidence in criminal proceedings as well as the administrative hearing. There are many attorneys that do not attend the administrative hearings on behalf of their clients. Many attorneys charge extra in fees if you’d like your attorney to present your side of the story to the DMV officer. On the other hand, we never try to bargain more money out of the client. You are already facing hardship, the last thing you need is to worry about the cost. The amount we quote you during the consultation will be all inclusive. The fee will include the criminal AND the civil aspect of the DUI proceedings. 

If you have been charged with a DUI, please call 619-357-6677

Delicino & Vialtsin, LLP answer general legal questions emailed to us on this blog. Feel free to send us YOUR question by email. Please do not email us confidential or time sensitive information, but call 619-357-6677 The answer suggested here is for general information ONLY and not to be construed as a legal advice. Further, the Q & A does not establish an attorney-client relationship with Delicino & Vialtsin, LLP. Anton Vialtsin Google+