Living and driving in San Diego are privileges that many of us have come to take for granted. Most people do not realize how much they rely on their ability to drive, until they no longer can. If you have recently been arrested for DUI, you probably have a number of unanswered questions: How will I commute to work? How will I pick up my children from school? How will I get to my doctor appointments? Or simply, how will I get around from day to day? Additionally, you probably aren’t too familiar with the post arrest DUI process. It’s important to understand that you will face two, distinct, legal proceedings: a criminal charge in a California court, and a California DMV Hearing. This article will discuss the DMV Hearing in detail.
Following a DUI arrest, the arresting agency should have taken your California issued driver’s license, 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. Many people do not take the DMV Hearing seriously, and some do not even request one. However, the hearing is important for a number of reasons. First, if you do not make a request within 10 days, you will waive your right to a hearing, and your driver’s license will automatically be suspended at the expiration of your Admin Per Se. If you do request a hearing, the suspension of your license will be postponed until the hearing is completed. Further, it provides your attorney an excellent opportunity to question the arresting officers, and gather information that will be helpful in your criminal case. Therefore, it is highly recommended that you consult an attorney as soon as possible so that you do not waive your right to the DMV Hearing.
At the DMV Hearing, you are permitted to have an attorney represent you. 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 for you. We will also request the stay of the suspension, as well as any information and reports that are necessary for carrying out the functions of the hearing. During your free consultation we will discuss your case and determine if it’s better to set a telephonic hearing or an in-person hearing. Each can have its advantages, and we will help you decide which is better for your specific situation. Our law firm has administrative law specialists who have the sole purpose of conducting DMV hearings. If your job or occupation requires you to drive, then having a DMV specialist can be a priceless benefit. Call the San Diego DUI Attorney Law Firm at 619-535-7150 to schedule your FREE consultation today.
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 and plead their case. The DMV is not going to be determining guilt or innocence. Those issues will be decided later in the criminal case. What the DMV will decide during the administrative hearing is the following:
1) Whether the arresting officer had reasonable cause to believe that the person operating the vehicle was under the influence of alcohol and/or drugs, while 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, and complete the chemical test (blood or breath) that was administered? In some cases, an individual may have complications that prevent them from being able to give a sufficient air sample on the Breathalyzer. In these cases, although they submit to the test, it cannot be completed.
What if I Win the DMV Hearing?
If the Administrative Law Judge decides to set aside the DMV license suspension action against you, then your driver’s license privileges will remain intact. Because the DMV hearing is completely separate from the criminal proceeding, even if you win the DMV hearing, the decision does not directly carry over to the criminal case. If you do end up being convicted in the criminal case, your license will still be suspended. Even so, winning the DMV Hearing can be very a substantial barging tool that can be used in the DUI negotiations of your criminal case. It can help your attorney negotiate you charged down to a Wet Reckless or Dry Reckless. Furthermore, it typically suggests that you will have a strong defense, and that the criminal case against you is weak.
What if I Lose the DMV Hearing?
If you lose your DMV hearing you will receive a notice of facts and findings that will indicate the date your license suspension will be re-imposed. There are different consequences for the DMV license suspension based on the type of license you carry, and whether or not this is your first DUI offense. For a complete breakdown of the suspension periods refer to the DMV dropdown box on the home page of this website. Even if you do lose the DMV Hearing, you may still be able to prevail in your criminal case. If you do, you can seek to have the suspension on your driver’s license lifted.
How to Win at the DMV Hearing
There are a number of arguments your attorney can make at the DMV hearing. In the past, we have had success arguing the following points:
1) You were not in physical control of a motorized vehicle. Did the officer, or anyone for that matter, 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. In this situation, it can be argued you were not in control of the vehicle because you were not actually 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 it may not have conformed to the strict legal requirements. If this is the case, you may prevail, even if you were driving under the influence.
3) There was insufficient probable cause for your traffic stop or arrest. 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 the officer provided enough evidence to establish probable cause. For instance, if at the time the officer pulled you over you were actually obeying all traffic laws, there likely was no probable case. You may have been pulled over simply because you were driving at 2am on a Friday night, a time were drunk drivers are likely on the road, but not because you were actually violating any traffic codes.
4) Officer did not adhere to the 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, prior to 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) The breath testing instrument was not working properly. Title 17 of the California Code also outlines the regulations and 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, which ever occurs first. If your attorneys can show that these records were not properly maintained, then the BAC results are compromised, and may be inaccurate.
6) There were other conditions that caused a false positive reading. Certain types of diets may trigger false high readings. For example, cases exist where high protein / low carb diets have lead to false positives. There is also a long list of medical conditions such as GERD, acid reflux, and even heartburn that may leave traces undigested alcohol in the esophagus. This can also lead to a false positive result. Make sure you disclose any of these conditions to your attorney.
7) The 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 so, the DMV officer may rule in your favor. It’s important to discuss this with your attorney because many officers just go through the motions without following the procedure correctly.
8) You did not refuse, but 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, it is important to get this allegation removed. The hearing officer can remove the refusal and sustain the order.
9) There were omissions, or errors, in the officer’s paperwork. Even Police Officers are human. Police officers write hundreds of reports each year, and if you ask them it’s probably the worst part of their job. Often times, they forget to pay attention to details, or are in a hurry to get their reports finished. Sometimes, this leads to errors in their paperwork. Carefully examining the paperwork and looking for flaws takes a trained eye and close attention to detail. At the San Diego DUI Attorney Law Firm, our lawyers are specially trained to look for these types of errors in the paperwork.
10) You were not read your Miranda Rights. Anyone who watches television or movies is familiar with Miranda rights. In short, you have the right to remain silent, and you have the right to an attorney. Even though most people are aware of these rights, they may not understand exactly when, and how, they apply. In some cases, failure to be read these rights is enough to prevail at the DMV hearing. Your attorney will carefully go over your case to determine if your Miranda rights were violated.
The San Diego DUI Attorney Law Firm is Here to Help
If you were arrested for DUI the clock is ticking. Do not underestimate the importance of the DMV Hearing. A strong defense at the DMV Hearing will have a huge impact on your driving ability, and will be a good indication of the evidence you will face at trial. It is extremely important that you have an experienced defense attorney represent you during the hearing. Call the San Diego DUI Attorney Law Firm today to schedule your FREE consultation. We are available 24/7 to answer your call, and we handle all of our cases with the personal attention they deserve.