Living and driving in California are privileges that many people have come to take for granted. That is until you are faced with the realization that this privilege can be taken away. Driving a vehicle has become a “basic necessity” by many Americans and many view it as a basic need. If you or someone you love has recently been arrested for DUI the simple question of how is a person suppose to commute to their job, or pick up their children from school, attend doctor appointments, or just function daily can become overwhelming. The California Department of Motor Vehicles is NOT on your side. Many people who are charged with DUI believe that the administrative hearing is for them to tell the administrative law judge why they need a license. This is far from reality! Before attempting to schedule your own DMV hearing it’s critical that you should discuss your case with the lawyers at San Diego DUI Attorney to review all your options and to carefully develop a plan that is right for your specific needs.
Following a DUI arrest the arresting agency should have taken your California issued drivers license (if your license is from another State refer to our information on our site titled: Out of State Drivers License, you can access it on the DUI dropdown box), and issued a pink temporary license called an Admin Per Se. From the date of the arrest you have 10 days to call and schedule a DMV hearing. It should also be noted that weekends could count against this time restriction. If you are considering a private attorney to represent you, we suggest that you let our firm call the DMV and set up your hearing, as well we will request the stay of the suspension, and request all the information and reports that are necessary for carrying out the functions of the hearing. During your consultation we will discuss your case and determine if it’s better to set a telephonic hearing or in-person hearing. Our law firm also has an administrative law specialist who has the sole purpose of conducting DMV hearings and is often called upon especially in situations where the person has a Commercial Drivers license, or a HAZ-MAT endorsement, or carries a pilot license. If your job or occupation requires you to drive then having a DMV specialist can be a priceless benefit.
Issues the DMV will address
The hearing at the DMV is known as an administrative hearing and it gives the person accused of the DUI an opportunity to present evidence in their arrest that they feel is relevant testimony to his/her case. The DMV is not going to be determining guilt or innocence, since this this is not the appropriate venue for the criminal proceedings. The following issues is what the DMV will be focusing their case on:
1) Did the arresting officer have reasonable cause to believe that the person operating the vehicle was under the influence of alcohol and/or drugs at the time of being in physical control of a motor vehicle?
2) Was the operator of the vehicle lawfully placed under arrest for DUI?
3) Was the driver given the proper information to inform him/her that refusing to submit to a breath or blood test could result in a license suspension for a disclosed amount of time? Note: In most cases the suspension for a refusal is for a period of at least 1 year but may be longer in some circumstances.
4) Did the driver refuse to submit to the chemical test or did the accuse fail to complete the standard blood or breath test that was being administered? In some cases an individual may have complications that may prevent them from actually being able to give a sufficient air sample on the Breathalyzer, so they may not be refusing but instead unable to perform the function of the test.
If you Win the DMV Hearing
If the Administrative Law Judge decides in the notice of facts and findings to set aside the DMV license suspension action against you, then your driver’s license privileges will remain intact. This can also be a very substantial barging tool that may be able to be used in the DUI negotiations during the court process. Because the DMV hearing is completely separate of the court, if you win the DMV hearing it does not carry over to the proceedings in the criminal case. Likewise, if the court finds you guilty or a plea is reached in which there is a finding of responsibility to a DUI, the court will then notify the DMV to revoke or suspend your license. This action may not allow you to be entitled to another hearing.
If you Lose the DMV Hearing
If you lose your DMV hearing you will receive a notice of facts and findings that will indicate the date the license suspension will be re-imposed. There are different consequences for the DMV license suspension based on the type of license a person carries and if this is their first or subsequent DUI offense. For a complete breakdown of the suspension periods refer to the DMV dropdown box on the home page of this website for complete details of the suspension periods.
Top DMV Strategies to Win
1) You were not in physical control of a motorized vehicle. Did the officer actually see you in physical control of the vehicle? A common scenario is a person who pulls over or decides to rest because he/she felt it was not safe to drive. During the time you are sitting in the car an officer approached the vehicle and asks you to step out of the vehicle. The officer then says he smells alcohol and begins the process of giving you a DUI. This is case that can be argued you were not in control of the vehicle because you were not driving the vehicle.
2) Yow were arrested at an illegal DUI checkpoint. This DUI defense must be carefully discussed with your attorney. If the arrest occurred during a California DUI checkpoint this may not conform to the legal and strict requirements in September forth under the California DUI law, even if you were driving under the influence.
3) There was insufficient probable cause. If the arresting officer did not establish grounds of probable cause that you were driving under the influence then the DMV may set aside the action. The attorneys at San Diego DUI Attorneys will carefully go over all reports to determine if in fact the officer established probable cause. For instance, at the time the officer pulled you over you were actually obeying all traffic laws, and it’s clear that you were pulled over because you were driving at 2am on a Friday night but you were not violating any traffic codes. Another might be that the officer got a call about driving behavior but you were actually at home and began drinking before the officers arrived to question you. There are many reasons that probable cause could be an issue at your DMV hearing and your lawyer will discuss each of these with you during your consultation.
4) Officer did not establish 15-minute observation period. Title 17 of the California Code requires the officer to maintain and observe the subject for a period of at least 15 minutes before conducting and collecting a breath sample. This requirement is to insure that the individual does not eat, vomit, drink, smoke or regurgitate anything that may compromise the accuracy of the test.
5) Breath testing instrument was not working properly. In title 17 in outlines the regulation requirements for the maintenance and operation of the devices used in collecting breath samples. The instruments are required to undergo a check for accuracy every 10 days or 150 blows. If the attorneys can show that these records were not properly maintained then the BAC may be inaccurate due to the fact that they failed to maintain the equipment properly.
6) There were other conditions that caused a false high reading. Certain types of high protein combined with low carb diets may trigger false high readings. There is also a long list of medical defenses such as GERD, acid reflux, and even heartburn that may leave traces undigested alcohol in the esophagus thus causing false high readings. Make sure you disclose any of these conditions to your attorney at San Diego Dui Attorneys.
7) Officer did not properly advise you of your rights of refusal. If you are asked to submit to a blood or breath test the officer is required that they must inform you of your rights, and that your privilege to drive will be suspended for a period of at least one year automatically. This notice of automatic suspension is in writing and the officer is required to read it word for word if the officer fails to do this the DMV officer may rule in your favor. It’s important to discuss this with your attorney because many officers will go through the motions without following the procedure correctly.
8) You did not refuse the test you simply could not perform the test. Perhaps you attempted to follow the officer’s instructions to blow but you could not give a breath sample that was sufficient enough. The officer may interpret this as a refusal instead of offering you a blood test. Many times the test operator will state that the subject was huffing on the machine when in fact you may lack the lung capacity to do a proper blow. If you did not refuse its important to try and get this allegation removed. The hearing officer can remove the refusal and sustain the order.
9) There were omissions in the officer’s paperwork or gross flaws. Police officers write hundreds of reports each year and if you ask them it’s probably the worse part of their job. Often times they forget to pay attention to details or there in a hurry to get the reports finished that they make fatal errors in the paperwork. Carefully examining the paperwork and looking for flaws takes a trained eye and attention to details. At the San Diego DUI Attorneys they have handles thousands of cases and are specially trained to look for these errors in the paperwork.
10) You were not read your Miranda Rights. This is a common requirement that many people are aware of, however, there is a time and place in which the Miranda rights must be read and times they do not have to be read. This is a procedural area of law and one that has received a lot of attention recently and has even been addressed by the Supreme Court. Your attorney will carefully go over your case to determine if your Miranda rights were violated.
If you were arrested for DUI the time is ticking. Call the San Diego DUI Attorneys today and schedule your free consultation to discuss your case. We are available 24/7 to answer your call and we handle all of our cases personally. San Diego DUI Attorneys is NOT a mill that sells or transfers your case to another lawyer or shops it to a different lawyer with less experience we handle all our own cases.