If you are charged with DUI, you will have to face two distinct legal proceedings; a DUI criminal charge in a court of law and a DMV hearing. These two legal proceedings will determine whether you will be able to drive again. The Law Offices of Jonathan Franklin is a law firm that is specialized in criminal law, and we can represent you in a DMV Hearing. We serve clients in Beverly Hills and Los Angeles County.
What Is a DMV Hearing for a DUI?
A DMV hearing for a DUI is a local administrative procedure that is held at your local DMV office. The primary issue that is determined at this DMV hearing is whether or not your driving license should be suspended or revoked.
If a law enforcement officer arrests you for DUI, he or she may confiscate your driving license. Then, the officer will give you a suspension notice to act as your temporary license for thirty days.
Furthermore, this suspension notice will entitle you to have a DMV hearing so that you can get back your driving license. However, you should request this hearing within ten days after you have been given the suspension notice.
If you don’t request a DMV hearing during this period, the department will suspend your driving license after thirty days of lapse. You can get back your license if you start attending a DUI school, apply for insurance, pay reinstatement fees, or install an interlock device inside your vehicle, as ordered by the court.
Of course, you wouldn’t like your driving license to be suspended. This is why you must petition for a DMV DUI hearing within ten days from when you were arrested. If you fail to do so, you will lose your legal right to have a DMV hearing.
Immediately your DMV hearing starts, there will be a delay in the process of suspending your driving license. If you happen to win the DUI DMV hearing, your driving license won’t be suspended.
What Are Your Rights at a DUI DMV Hearing?
DMV DUI hearings have an informal setting, and the atmosphere is more relaxed as compared to court hearings. For instance, the person who presides over a DUI DMV hearing has no professional legal education. Also, you can easily prove your innocence because it doesn’t require a high standard of proof as compared to criminal cases. Moreover, you can participate in a DUI DMV hearing through a phone call, or it can take place in a local office instead of a formal courtroom.
Despite this informal setting, you are still entitled to some rights during the DMV hearing. For example, you have a right to legal representation; but you will have to cater for your attorney’s fees by yourself. You can also challenge evidence, present and cross-examine witnesses, and produce exhibits.
How You Should Schedule Your DMV Hearing
You should contact a DMV driver safety branch office near you so that you can schedule your DUI DMV hearing. Don’t confuse these offices with the traditional DMV field offices where you normally go for your vehicle registration and license application. Also, make sure you reach out to these offices within ten days from the date when you were arrested.
If you have already hired an attorney within the ten days time frame, he or she will request/ schedule a hearing on your behalf. If you don't intend to testify anything during the hearing, your attorney can attend it and put up a strong defense for you.
How Can You Win Your DMV Hearing?
Typically, a DMV hearing has a broad scope. The hearing officer will have to consider several issues. Some of these issues include:
- Whether the police officer who arrested you had reasonable cause to believe that you were drunk driving
- Whether the police officer arrested you lawfully
- Whether you had a BAC level that was above 0.08% when you were arrested
If you had refused to take a DUI test at the time of arrest, the hearing officer would be obligated to deliberate on the following issues:
- Whether the law enforcement officer had informed you that your license could be revoked for up to three years if you fail to take the DUI test
- Whether you willfully refused to take the blood or chemical breath test
After the hearing officer has considered all these issues, he or she will make an order that will either suspend or reverse the suspension of your license. If any of these issues is not conclusively proved, you will be permitted to get back your driving license. The most common defenses to a DMV hearing are:
1. You Were Not Driving
If the arresting officer didn’t see you while you were driving, for example, the officer will be unable to adduce any evidence to show that you had been driving at the time of the arrest. This lack of sufficient evidence will enable you to get back your license. For example, maybe you were drinking, and you walked back into your car intending to drive yourself home. Then, you realized that you were too drunk to drive; and you fell asleep inside your vehicle. An officer came to you to assess whether you are okay, smelled your alcoholic breath, and later arrested you for drunk driving. This will be a case of unlawful arrest because you weren't driving under intoxication.
2. Arrest at an Unlawful DUI Checkpoint
If you were arrested at a sobriety checkpoint that has not been certified by the local authorities, your chances of winning your DMV case would be higher. Even if you had been driving under the influence, the arrest would still be illegal since evidence found in contravention of the law is not valid in the United States.
3. No Probable Cause
If the law enforcement officer didn't have a reasonable cause for arresting you, your DMV case would be set aside. Your DUI defense attorney can prove that the arresting officer lacked probable cause in various ways, for instance, you were arrested due to racial profiling, or you were involved in a road accident, and the officer decided to set you up with DUI charges.
4. The Arresting Officer Didn’t Conduct an Observation Period of at Least 15 Minutes
According to the Regulations Code of California, a law enforcement officer must first observe the DUI suspect for fifteen minutes before carrying out a BAC test on him or her. The primary rationale behind this regulation is to make sure that the DUI suspect does not regurgitate, vomit, eat, smoke, or drink to tamper with the results.
If the arresting officer fails to carry out this test, the results will be jeopardized. This way, it will be impossible to prove that the suspect's blood-alcohol level was above 0.08%, making your charges to be set aside.
5. The BAC Instrument was Faulty
The police officer should not conduct the alcoholic level test with a faulty instrument. Title 17 of the Regulations Code of California states that the local authorities must do routine maintenance checks on BAC kit after every 150 ‘blows' or ten days. If the law enforcement officer used a testing kit with faulty parts that are not in proper working condition, your case would be set aside.
6. There are Other Psychological Reasons for the High BAC Level
Perhaps there may be other psychological medical explanations for your high blood alcohol levels. Some of these reasons include:
- Low-carb, high protein diets can increase the level of alcohol in your blood.
- Medical conditions like heartburn, GERD, and acid reflux can trigger high BAC levels.
- Residues of alcoholic substances in your mouth can cause a false reading.
If you had at least one of these three conditions when you were arrested, you should use them as a defense. This way, you will successfully prove that the BAC results were wrong and that you had not been driving under the influence.
7. You Were Not Properly Advised of the Penalties of Failing to Take a BAC Test
In case you had refused to take a BAC test, the law enforcement officer must inform you of the consequences of your actions. For example, he or she must warn you that your driver's license will be suspended for a year. This warning must be written down, and the police officer should read it for you verbatim. If the officer fails to implement these steps, the chances of winning your case will be much higher.
Often, there are hundreds of DUI arrests each week in California. Sometimes, law enforcement officers may feel overwhelmed and overburdened by their high workload. This causes them to forget implementing some essential procedures as required by the law.
Some of these procedures include failing to admonish you, improperly rebuking you, and failing to tell you that your actions will result in a mandatory suspension of your driving license. If you can prove that your arresting officer did not properly inform you of the consequences of failing to submit to a BAC test, you will get back your driving license.
8. You Didn’t Refuse to Take a BAC Test
Maybe you didn’t intentionally refuse to take a BAC test. For instance, you may have attempted to ‘blow,' but the samples of your breath were insufficient, and you weren't given an alternative of a blood test. However, you were politely asking the arresting officer questions regarding the procedure, and he or she misinterpreted them as a refusal to take the test. If you can prove that you didn’t refuse to take a BAC test, the action against your driving license will be set aside.
9. The Officer’s Paperwork Had Fatal Flaws
The law enforcement officer must complete some paperwork and mandatory reports when he or she is arresting you. If this paperwork contains some serious errors, you can use them as a defense. For instance, the paperwork may not have been signed, or it may have the wrong dates. Also, the arresting officer can record the BAC results in your report.
What Will Happen If You Win Your DMV Hearing?
If you win your DUI DMV hearing, you will get back your driving license. Also, your attorney can help you get a better ‘deal’ with the prosecutor during plea bargaining for your drunk driving court case. This way, your charges may be reduced or dismissed.
However, the DMV hearing and the court DUI hearing are two distinct and separate procedures. Winning your DMV case does not guarantee that you will also win your DUI court case. In some cases, the prosecution may still firmly believe that they have strong evidence to convict you.
In case you are convicted of DUI, it is the judge who will now have the authority to either suspend or revoke your driver's license. Therefore, it is wise to hire a defense attorney who can help you win both your DMV hearing and your DUI court case.
What Will Happen If You Lose Your DMV Hearing?
Don’t lose hope if you do not win your DMV DUI hearing. Often, your attorney may have produced some important details during the hearing that may encourage the prosecution to reduce your charges. Moreover, if you win your DUI court case, the DMV can decide to set aside the suspension of your driving license.
However, you should expect to lose all your driving privileges if you don’t win your DMV case. As soon as you lose your DMV hearing, your driving license will be revoked or suspended immediately. If that was your first time to be arrested for DUI, you might have the option of getting a restriction on your license, which will only allow you to drive to and from work and to your DUI school. If you had been previously convicted of DUI, your license might be suspended for up to four years.
Find a DUI DMV Attorney Near Me
If you are looking for help with your DMV hearing in California, feel free to reach out to the Law Offices of Jonathan Franklin. If you are in Beverly Hills and Los Angeles, you can call our DUI lawyer for a free consultation at 310-273-9600, and we will be happy to help you. Don't make the mistake of trying to speak out for yourself when your driving privileges are at stake.