DRIVING UNDER THE INFLUENCE / DUI / DWI – What You Need to Know Now:
When you are arrested on suspicion of DUI, both the Department of Motor Vehicles (DMV) and the Court will take separate action.
You are given several documents when you are released from jail, two of which are very important: 1) the Notice to Appear, which tells you when and where to appear at Court; and 2) the Suspension/Revocation Order and Temporary License (referred to as the “DS-367″ by the DMV – we refer to it as the “pink temporary license”).
Because of our great Constitution, you are automatically given the right to challenge the criminal charge of driving under the influence through the Court process. However, because driving is a privilege and not a right, the DMV does not automatically give you the right the challenge the DUI charge against yourlicense. You must contact the DMV Driver Safety Branch to set up a hearing to dispute the charge within 10 days of your arrest. Failure to do so will result in a suspension without the opportunity to dispute or challenge any evidence relating to the arrest and charges of DUI against your license.
1. What is a DMV DUI Hearing?
1.1 What are my rights at a DMV hearing?
1.2. How do I schedule my DUI DMV hearing?
2. Ten Ways to Win a DMV DUI Hearing
2.1. Presenting evidence
3. The Relationship between a DMV Driving Under the Influence Hearing and a DUITrial
4. What Happens if I Win My DMV Hearing?
5. What Happens if I Lose My DMV DUI Hearing?
5.1. Penalties for first-offense DUI
5.2. Second-offense
5.3. Third-offense
5.4 Fourth and subsequent DUIs
5.5. Underage DUIs
5.6. Out-of-state DUIs
5.7. Appealing your DMV DUI hearing decision
1. What is a DMV DUI Hearing?
If you are arrested in this state for drunk driving, the arresting officer will confiscate your driver’s license and provide you with a pink “Notice of Suspension”. This notice acts as a temporary license for 30 days. More importantly, this document also gives you notice that you are entitled to a DMV hearing to prevent this suspension but only if you request it within ten (10) days of the arrest. If you do not contact the DMV within this ten day window, you will forever lose the right to be heard.
If you do not request a hearing, your license will automatically be suspended at the end of the 30 days. At a certain point you will be eligible to reinstate your license once you
- enroll in California DUI school,
- submit a SR-22 insurance form,
- pay a $125 reinstatement fee, and, in some counties,
- in some cases, install an ignition interlock device in your car.
It bears repeating that in order to try to avoid the suspension, you have the right to request a DMV hearing which is formally known as a Driver Safety Administrative Per Se “APS” Hearing. You only have 10 days from the date of arrest to request this hearing. If you do not request your hearing within that timeframe, you lose your right to do so.
It is important to note that you aren’t required to request this hearing. But if you do not, the DMV will almost certainly suspend your license once the 30 days expire.
If you do request the hearing, your suspension/revocation will be delayed pending the outcome of the hearing. And if you win the hearing, it may be prevented altogether.
1.1. What are my rights at a DMV hearing?
DMV hearings are much more relaxed than court trials. One clear example lies in the fact that a DMV hearing officer…who often has no formal legal training…presides over the case instead of a judge. Another is that the “burden of proof”…that is, the amount of evidence that is required to prove guilt…is more easily satisfied in a DMV hearing than in a criminal proceeding. A third is that the hearing takes place in an office…and sometimes even over the phone…instead of in a courtroom.
Yet despite these differences in formality, you still maintain certain rights during a DMV hearing.
You have the right to be represented by an attorney at your own expense. This means that, unlike a California criminal court proceeding, the DMV will not appoint an attorney for you in the event you are unable to afford your own.
At the hearing, you are entitled to
- review and challenge evidence,
- subpoena and present witnesses (including the arresting officer),
- cross-examine witnesses, and
- testify on your own behalf.
If you lose your hearing, you also have the right to appeal the DMV’s decision (which is discussed in Section 5. What Happens if I Lose My DMV Hearing?).
1.2. How do I schedule my DUI DMV hearing?
In order to schedule your DUI DMV hearing, you must contact your local
DMV driver safety branch office which is where your hearing will be held. These offices are different from the “traditional” DMV field offices where you go to obtain a license, renewal, vehicle registration services, etc. And remember, you must contact the office within 10 calendar days of your arrest. Your failure to do so forfeits your right to this hearing.
If you hire a private DUI defense attorney to represent you in your court case, he/she will likely request and schedule your DMV hearing for you, provided that you retain his/her services within that 10-day timeframe. He/she may also appear on your behalf, in which case you do not need to attend. And, on a similar note, many times the hearing is conducted over the phone with no personal appearances.
2. Ten Ways to Win a DMV DUI Hearing
The scope of a DUI DMV hearing is quite broad. There are a handful of issues that the hearing officer will consider:
- Did the arresting officer have probable cause to believe you were driving under the influence,
- did the officer place you under a lawful arrest, and
- were you driving with a blood alcohol concentration “BAC” of 0.08% or greater?
∗It must be noted that driving with a BAC of 0.08% or greater is a separate offense from driving under the influence. The first is prohibited under Vehicle Code 23152b whereas the latter is the more general offense prohibited under Vehicle Code 23152a.
If you allegedly refused to submit to a chemical DUI blood or breath test, the last question becomes a moot point. Instead, the final questions to answer are
- Did the officer tell you that if you refused to submit to a blood or breath test that your driving privilege would be suspended for one year or revoked for two or three years, and
- did you, in fact, willfully refuse to submit to a chemical blood or breath test after the officer asked you to provide a sample?
2.1. Presenting evidence
After considering these issues, the DMV hearing officer will either
- sustain the action (which means that he/she will enforce the suspension/revocation), or
- set aside the action (which means that he/she will reverse the suspension/revocation). If the judge sets aside the action, it is equivalent to receiving a not guilty verdict.
The hearing officer should set aside the action and allow you to retain your driving privilege if you successfully refute at least one of the issues raised above or successfully prevent incriminating evidence from being admitted at the hearing. The facts of your specific case will determine how you or your attorney will proceed.
The following are ten examples of common DUI defenses that your savvy DUI DMV defense attorney may present on your behalf:
1. You weren’t driving –
If the officer didn’t personally observe you driving, and
a) the DMV doesn’t subpoena any witnesses who did, or
b) there is no other evidence that could reasonably establish you were driving,
the hearing officer should set aside the action against your license. Let’s say that, for example, you were out drinking and that when you went back to your car, you realized you shouldn’t be driving. You decided to “sleep it off”, so you reclined your seat and closed your eyes. A cop approaches you to see if you are okay, smells the alcohol on your breath, conducts an investigation and arrests you for DUI. This would be an unlawful arrest, since you did not drive under the influence.
2. You were arrested at an illegal DUI / driver’s license checkpoint –
Similarly, if you are arrested at a California DUI sobriety checkpoint that doesn’t conform to the strict legal requirements set forth under California DUI law, the arrest is illegal. This means that even if you were technically driving under the influence, the unlawful arrest would override that fact…and you should win the hearing.
3. The officer didn’t have probable cause to pull you over –
If the officer didn’t have probable cause to detain you for driving under the influence, the DMV must set aside the action. Your California DUI defense lawyer could argue any number of reasons why the officer lacked probable cause to arrest you. Perhaps you were
- obeying all traffic laws and were truly only pulled over because you were the victim of racial profiling (∗racial profiling is the practice of initiating a stop based on someone’s race, ethnicity or nationality), or
- involved in an accident but didn’t begin drinking until after you returned home (which is when the officers came to interview you).
There are almost an infinite number of ways to argue that the officer lacked probable cause at the time he/she stopped you.
4. The officer didn’t conduct a proper 15-minute observation period
Title 17 of the California Code of Regulations governs how breath and blood tests must be administered, collected, stored and analyzed. If the officer doesn’t strictly adhere to California’s Title 17 regulations, the arrest is subject to scrutiny.
One of these regulations is that an officer must observe the suspect for at least 15 minutes immediately prior to conducting a breath test. This is to ensure that the suspect doesn’t vomit, eat, drink, smoke, regurgitate or do anything else that may compromise the results of the test.
The failure to conduct this observation jeopardizes the results and may mean that the arrestee’s blood alcohol concentration “BAC” wasn’t a 0.08% or above at the time of driving…a fact which could result in a “win” at the DMV DUI hearing.
5. The breath testing instrument wasn’t calibrated or wasn’t working
Title 17 also regulates the maintenance and operation of breath testing instruments. Current law provides that these instruments must undergo an accuracy check every ten days or 150 “blows”. If you provided your samples on instruments that failed to adhere to these standards, your BAC may be inaccurate.
Similarly, if the instrument was malfunctioning, that, too, could produce false high breath test results. This was recently the case in Ventura County when 125 breath testing instruments were removed from the field because of suspected errors that were occurring with faulty parts and mouth pieces. The Ventura County District Attorney must now review hundreds of arrests to see if any of the convictions that were based on breath test results taken on those instruments should be overturned.
6. There were physiological explanations for your false high “BAC” level
There are a variety of reasons why you could produce a BAC of 0.08% or greater that are unrelated to the amount of alcohol that you consumed.
- High-protein, low carbohydrate diets can trigger false high BAC results,
- medical defenses like GERD, acid reflux and heartburn can produce inaccurately high BAC results, and
- residual “mouth alcohol” can act as a DUI defense may have caused a falsely high reading.
If you suffered from any of these conditions at the time you provided your breath sample, you may not have truly been driving with a BAC of 0.08% or greater, despite the results of your breath test.
7. The officer didn’t properly advise you of the consequences for refusing to submit to a chemical blood or breath test
If you refuse to submit to a DUI chemical blood or breath test, the officer must advise you that your driver’s license will automatically be suspended for one year. This admonition is in writing and the officer is supposed to read it verbatim (that is, word for word). If he/she fails to do this, you could win your DMV hearing.
Because many officers make numerous drunk driving arrests, oftentimes, they simply “go through the motions”. If the officer
- forgets to give this admonition,
- deliberately chooses not to give it, or
- recites his/her own interpretation of the admonition instead of reading it…and confuses you to the point that you don’t know what is expected of you…or
- tells you that your refusal could result in a mandatory suspension, instead of telling you that your refusal will result in a suspension,
the action against your license could be set aside.
8. You didn’t refuse to submit to a chemical test
Perhaps you didn’t actually refuse to submit to a chemical test. Maybe you tried to “blow” but your breath samples weren’t sufficient. Maybe you weren’t offered a blood draw as an alternative. Maybe you were simply asking questions about the procedure and the officer misinterpreted your inquiries as hostility and assumed you were refusing.
If you didn’t refuse, this allegation should be dismissed. If there’s no refusal…and no BAC results…the DMV hearing officer can’t sustain the action.
9. There were fatal flaws with the officer’s paperwork
When an officer makes a DUI arrest, he/she must fill out certain mandatory reports and paperwork. If the officer forgets to sign the paperwork, writes the wrong dates on the documents, fails to report the BAC results, or records the wrong BAC results and cannot independently recall the facts of your arrest to correct these mistakes, these errors could prove fatal to the case against you.
10. You were arrested for violating the “under 21zero tolerance law” and the officer didn’t lay the proper foundation for your BAC results
Drivers who are under 21 are forbidden from driving with any measurable amount of alcohol in their bodies. This is known as California’s “zero tolerance” law. Most of the time, officers administer preliminary alcohol screening “PAS” tests to these drivers.
PAS devices are not regulated by Title 17. This means that if an officer is going to testify about the BAC level in an under 21 DUI case, he/she would need to lay the proper foundation as to why the PAS is a reliable breath testing instrument.
In other words, the officer must supply the proof as to why the PAS results should be used as evidence against the driver. Despite the fact that the officer may be able to do this, many times he/she will not know how to do this.
And…depending on the circumstances…you or your attorney may want to call witnesses to support these defenses. This may include the arresting officer, a forensic alcohol expert and/or you.
3. The Relationship between a DMV DUI Hearing and a DUI Trial
It bears repeating that…unlike your DUI court proceedings…the DMV DUI hearing is not concerned with whether or not you committed a criminal act. The hearing officer focuses exclusively on your driving privilege and on the circumstances surrounding your arrest.
That said, the two proceedings are inextricably intertwined. Favorable testimony obtained during the DMV hearing could persuade the prosecutor to dismiss your charge(s) or to offer a reduced charge as part of DUI plea bargain negotiations.
If, during a bench or jury trial, you receive a not guilty verdict on Vehicle Code 23152b…California’s law against driving with a blood alcohol concentration of 0.08% or greater…that verdict forces the DMV to reissue your driving privilege. However, a court dismissal or pleading guilty or no contest to a reduced charge does not have any bearing on your DMV license suspension/revocation.
A major difference between the DMV hearing and the DUI trial is that a trial is much more comprehensive. The attorneys have more leeway to explore a wider variety of legal defenses in an effort to fight your DUI charge.
And perhaps the most significant difference between the two is that the DMV hearing is governed by a DMV hearing officer…an employee of the DMV! A DUI jury trial is governed by a panel of impartial jurors…12 people who must unanimously agree that you are guilty before you can be convicted of drunk driving.
This is why it is so critical to have a California DUI defense attorney who has experience with DMV hearings and DUI trials. Because these proceedings are conducted in different manners…and follow different protocols…it is essential to have a lawyer who understands the differences between the two systems.
Because I have relationships and experience with so many different DMV hearing officers, I can offer my clients unsurpassed service. I understand the types of evidence and arguments that win favor with these officers. And this same service extends into the courtroom. As a DUI Guy, my relationships and experience with local prosecutors, judges and customs allow me to secure the best deals for my clients.”
4. What Happens if I Win My DMV Hearing?
If you win your DMV hearing…and the hearing officer sets aside the action…it means that your driving privilege will remain intact. It also means that this fact can be used to help obtain a better “deal” with the prosecution during DUI plea bargain negotiations. If the hearing revealed significant flaws in the state’s case, it may even convince the prosecutor to dismiss your DUI charges altogether.
But because the DMV hearing and DUI court process are nevertheless considered completely separate proceedings, a “win” at the DMV hearing does not automatically carry over to the court proceedings. For whatever reason, the prosecutor may still believe he/she has strong enough evidence to proceed to trial.
And if you are ultimately convicted of the offense in court, the judge retains the power to revoke or suspend your license. This is why it is critical to have a California DUI defense attorney who knows how to win cases at the DMV and in court.
5. What Happens if I Lose My DMV DUI Hearing?
Even if you lose your DMV hearing, your DUI attorney may nevertheless have elicited information during the proceeding that could still encourage the prosecutor to offer you a reduced plea. Certain plea bargains or a win at trial could cause the DMV to set aside the suspension even after it went into effect.
But as far as your driving privilege is concerned, the suspension/revocation will go into effect. The length and circumstances of the restriction will depend on whether it is your first, second or subsequent offense.
5.1 First-offense DUI
If this is your first DUI arrest, your privilege will be suspended for six-to-ten months. After the first month, you may be able to have the suspension converted into a restricted license that allows you to drive to and from
- work, and
- your California DUI school .
These are the only exceptions. And your privilege will only be converted to a restricted one once you
- enroll in California DUI school,
- submit an SR-22 insurance form, and
- pay a $125 reinstatement fee.
If the DUI caused injuryto another person, the DMV may suspend your license for one year.
If you refused to submit to a chemical blood or breath test , the privilege will be suspended for one year.
∗If the DMV hearing officer finds you caused a first-offense DUI with injury or refused to submit to a chemical test, you will not have the opportunity to convert your license suspension to a restriction. This will also be the case if you were driving with a BAC of 0.01% or higher while you were already on DUI probation at the time of your arrest.
5.2. Second-offense DUI
If this is your second DUI within a ten-year period, the DMV will suspend your license for two years. You may be eligible to convert the suspension to a restriction after one year by adhering to the conditions set forth above in Section 5.1.
And if your DUI only involved alcohol…as opposed to drugs or even a combination of alcohol and drugs…and there were no additional aggravating factors, such as a particularly high BAC or a traffic accident, you may be eligible to obtain a restricted license after 90 days if you
- adhere to the conditions set forth above, and
- submit proof of enrollment in an 18-month or 30-month California DUI school, and
- submit proof that you have installed an ignition interlock device.
If the DUI caused another person to suffer an injury, the suspension is for three years. This, too, may be converted to a restriction after the first year, provided you comply with the procedures above.
If you refused to submit to a chemical blood or breath test, the DMV will suspend your license for a period of two years. This is because your license gets suspended one year for the refusal and an additional year for each prior DUI.
5.3. Third-offense DUI
If this is your third DUI within a ten-year period, the DMV will suspend your license for three years. You may be eligible to convert the suspension to a restriction after one year by adhering to the conditions set forth above in Section 5.1.
If the DUI caused injury…and it is your third or subsequent DUI offense within the ten-year period…the suspension is for five years. This, too, may be converted to a restriction after the first year, provided you comply with the procedures above.
If you refused to submit to a chemical blood or breath test…and it is your third or subsequent DUI offense within the ten-year period, the DMV will suspend your license for a period of three years.
5.4. Fourth and subsequent DUIs
If this is your fourth or subsequent DUI within a ten-year period…which elevates it to a felony DUI…the DMV will suspend your license for four years. You may be eligible to convert the suspension to a restriction after one year by adhering to the conditions set forth above in Section 5.1.
∗These penalties will all vary quite a bit for drivers who hold commercial driver’s licenses.
5.5. Underage DUIs
If you are under 21 and drive with even a 0.01% BAC, you violate California’s zero tolerance law. This type of underage DUI offense is civil in nature. The hearing officer can sustain the action upon a finding that you drove with any measurable amount of alcohol in your system.
If you lose your DMV hearing, your license will be suspended for a period of one year. If you do not yet have a driver’s license, your privilege to obtain a driver’s license will be postponed for one year.
And if you refused to submit to a chemical blood or breath test as an underage drinker, your license may be suspended for a period of one to three years, depending on how many prior violations you have for this or any other DUI-related offense. 17
5.6. Out-of-state drivers
If you were arrested for DUI in California, but you do not live in this state, you would follow the same protocol discussed above in Section 1.2. How do I schedule my DUI DMV hearing? You can have a California DUI attorney appear in person or telephonically on your behalf.
In the event that you are an out-of-state driver arrested for a California DUI, and you lose this hearing, your privilege to drive in this state will be suspended just as if you were a permanent resident.
But the fact that your driving privilege in California has been suspended will most likely affect your driver’s license in your home state as well. This is because all but five states (Georgia, Massachusetts, Michigan, Tennessee, and Wisconsin) belong to the Interstate Drivers License Compact (IDLC).
The IDLC revolves around the concept that every driver in the country has a single driver’s license and a single driving record. States belonging to the Interstate Drivers License Compact report driving arrests (including DUIs) to each other. As a result, your home state will likely take its own action against your driver’s license if you suffer a California DUI arrest.
This is another reason why it is so important to hire a California DUI defense attorney who knows the most effective ways to convince the DMV hearing officer that your driving privilege should not be suspended or revoked.
5.7. Appealing your DMV DUI hearing decision
If you should have prevailed at your DMV hearing…and that the hearing officer simply “got it wrong”…you have the right to appeal the decision. You can ask the DMV itself to conduct a departmental review or file an appeal directly with the
California Superior Court.
Instructions and the time frame for appealing the DMV’s ruling will be found on the written form notifying you of the department’s decision. There is a $120 fee for the DMV review.
If you appeal directly to the court, you do so through a Writ of Mandate, which is a request for the court to review and reverse the final decision of the DMV. Filing a Writ on this issue generally costs between $2,500 and $3,500. If you are not satisfied with that decision, you can appeal to the California Court of Appeals.
Both procedures involve specific timeframes and deadlines and operate under a set of strict rules. As a result, it is important to hire an experienced California appeals attorney should you decide to appeal your decision.
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