Undoubtedly, impaired driving is one of the main causes of road-related accidents because it reduces a driver's focus and physical ability to drive a vehicle as a standard sober driver would under similar circumstances.
In addition to the criminal penalties you could face, most people do not know an arrest for an alleged impaired driving offense will often come with immediate negative impacts on your driving privileges. Unlike what most people think, the DMV (Department of Motor Vehicles) is typically responsible for handling driver's license (DL) suspensions and revocations in most DUI (driving under the influence) cases.
If the DL suspension would prevent you from going to school, working, and earning a salary to take care of your family, scheduling a DMV administrative hearing will be your only chance to have the license reinstated. Our team of experienced attorneys at Los Angeles Criminal Attorney understands how frustrating it could be to have your DL revoked or suspended for an alleged DUI offense.
We will represent your best interests at the DMV administrative hearing to increase the odds of retaining your driving privileges and obtaining the best possible outcome on the alleged DUI crime.
The DMV Administrative Hearing at a Glance
Upon an arrest for an alleged DUI offense, you should expect two legal proceedings, namely:
- A criminal proceeding in a law court to challenge the alleged DUI charge
- A DMV administrative hearing
Also known as an "admin per se" hearing, a DMV administrative hearing is a proceeding that takes place at the DMV offices in front of a hearing officer or administrative hearing officer after an arrest for any of the following offenses:
- Driving with a blood alcohol concentration (BAC) of 0.08 percent or higher
- Refusing a chemical blood or urine test after an arrest for an alleged drunk driving or DUI offense
- Driving with a BAC of 0.01 percent or higher as an under-18 or minor
Typically, the primary purpose of the DMV hearing is to determine whether or not you should retain your driving privileges after an arrest for any of these offenses or any other DUI-related offense. While you can represent yourself during this hearing, you could want to hire an attorney.
Having an attorney in your corner is a decision you cannot regret, especially if it is your first-time DUI charge, to increase the chances of obtaining a desirable outcome in your case in both legal proceedings.
The Deadline for Scheduling Your DMV Administrative Hearing
After an arrest for an alleged DUI offense, the arresting officers will confiscate your DL and hand you a pink document (notice of suspension). Typically, this pink document is a temporary DL that you can use for not more than thirty (30) days.
More importantly, this pink document also informs you of your right to a DMV administrative hearing to challenge the automatic DL suspension, which occurs after an arrest for an alleged DUI offense. However, you or your DUI attorney must request this hearing with DMV Driver Safety Office (DSO) within ten (10) days after an arrest.
If you request this proceeding on time, the DMV will delay the suspension of your DL pending the judgment of this hearing. The automatic suspension of your DL is also preventable when you win this hearing. However, when you fail to request this proceeding within this deadline, you will lose your legal right to do so afterward, and the DMV will automatically suspend your DL after thirty (30) days.
Fortunately, with a reliable DUI attorney on your side, you could still qualify to reinstate your driving privileges at a certain point once you:
- Enroll in a DUI school
- Pay the $125 reinstatement fee
- Submit an SR-22 form by your car insurer
- Install an IID (ignition interlock device)
Whether you are currently in legal custody or out on bail following an arrest for an alleged DUI offense, you need to act quickly to protect your best interest, pending the outcome of the alleged offense. As you can see above, time is of the essence if you want to protect your driving privileges, which you deserve awaiting the final judgment of the alleged DUI charge at trial.
An experienced attorney understands time is of the essence if you are under arrest for any alleged DUI offense. Apart from requesting your DMV hearing on time, your attorney will be your legal representative throughout the case to help you obtain a favorable outcome on the alleged DUI charge.
Notable Differences and Similarities Between the DMV Administrative Hearing and the Criminal Court Trials
Here are some of the notable differences and similarities between a DMV hearing and a court trial hearing, respectively:
While there is a relationship between the DMV hearing and the criminal DUI court case for the alleged DUI charge, these hearings differ in many ways. Some of the notable differences between these two hearings include the following:
- Unlike criminal trials, during the DMV license suspension hearing, a DMV hearing officer with no legal qualification will decide whether or not to suspend your driving privileges after an arrest for an alleged DUI offense.
- Unlike criminal trials for DUI offenses, your defense attorney does not have to prove his/her evidence beyond a reasonable doubt. Instead, the DMV hearings use a lesser standard of proof known as preponderance of the evidence.
- Unlike a criminal trial hearing in a courtroom, a DMV proceeding or hearing will occur in an office and sometimes over the phone.
- Unlike a criminal DUI court case, at the DMV hearing, the hearing officer with jurisdiction over your case will not appoint an attorney to protect your best interests during the proceeding if you cannot afford one.
- Unlike a criminal trial, there is no prosecutor at the DMV hearing. Instead, a hearing officer (DMV employee) will introduce evidence against you and make a suitable judgment on the case.
Some of the common similarities between the DMV hearing and the court trial hearing for the alleged DUI offense include the following:
- You have a legal right to have a private attorney represent your best interest at the hearing
- You have a legal right to subpoena and present eyewitnesses' statements and testimony
- You have a legal right to challenge the evidence, or some of the evidence the DMV hearing officer has against you, for example, the arresting officer's report
- You have a legal right to testify on your behalf. However, it is advisable to seek consultation from your attorney before you do so
- You have a legal right to cross-examine the witnesses testifying against you
While DMV administrative hearings are typically more relaxed and less formal than criminal court trials, hiring an attorney to represent you at this proceeding could increase your chances of securing a favorable outcome.
What to Anticipate at the DMV Administrative Hearing
The primary purpose of the DMV proceeding or hearing is to give you, the driver, an opportunity to provide evidence and testimonies to prove you deserve to retain your driving privileges pending the verdict of the alleged DUI charge. If you already have an attorney in your corner, he/she can attend this proceeding on your behalf to fight for your best interests.
Your attorney can present the necessary evidence, including eyewitness testimonies, to convince the hearing officer you deserve to keep your DL as the alleged case continues through the criminal justice system.
It is important to note that, at the DMV hearing, the burden of proof is on you or your attorney because the state will start with the presumption that you have a drug use problem, meaning you do not deserve the driving privileges. That means it is up to you to provide clear and persuasive evidence to convince the hearing officer the allegations are untrue.
When deciding whether or not to suspend your driving privileges following an arrest for an alleged DUI offense, the DMV hearing officer will consider the following factors:
Whether the Officers Had Probable Cause to Believe You Were Impaired Driving
Since you have a legal right to stay free from unlawful searches, a police officer will need a specific justification to pull you over for an alleged offense. In the context of DUI cases, the following unusual behaviors on the road could give an officer probable cause and reasonable suspicion to believe you were impaired driving:
- Erratic driving
- Making sudden stops
- Unsafe left turns
Whether Your Arrest for the Alleged DUI Offense Was Lawful
Since an arrest is an invasion of privacy, the DMV hearing officer will consider whether or not your arrest was lawful. Typically, the arrest for the alleged DUI offense is lawful if the arresting officers had probable cause to put you in legal custody. Below are some of the facts that will count as probable cause in DUI cases:
- Poor results on field sobriety tests (FSTs)
- High BAC results on the breathalyzer test
- Distinct or objective signs of intoxication, like dilated pupils, alcohol odor on your breath, slurred speech, or watery eyes
Whether Your BAC Was at 0.08% or Above
In the eyes of the law, driving with a BAC of 0.08 percent or above is a separate crime from DUI or drunk driving offense codified under Vehicle Code (VC) 23152(a). VC 23152(b) is the statute that makes it a crime to drive with a BAC of 0.08 percent or above.
As mentioned earlier, the hearing officer will play the role of the prosecutor and judge at this hearing. Hence, he/she must provide proper evidence in support of the DMV decision to suspend your DL.
Whether or Not You Did Refuse the Required Blood or Breath Test
According to the implied consent law, you cannot refuse to take a chemical DUI test once you are in legal custody for an alleged DUI offense without consequences. The hearing officer will consider this factor when determining whether or not you should retain your driving privileges.
After keenly considering these factors and listening to your attorney's defense arguments, the DMV hearing officer will either:
- Uphold the license suspension and "sustain the action," meaning there is a reasonable belief that you were impaired driving
- Reverse your DL suspension for the alleged DUI offense and "set aside the action." In other words, setting aside the action is equivalent to obtaining a "not guilty" verdict at trial
The DMV hearing officer will set aside the action and let you retain your driving privileges if your defense attorney can:
- Successfully challenge any of the above-explained factors
- Successfully prevent any incriminating or illegally obtained evidence from being used against you at the DMV hearing
Defenses Applicable at the DMV Administrative Hearing
A seasoned and skilled attorney will investigate your case as soon you contact him/her to build defenses that can help you obtain the best possible outcome at the DMV hearing and trial. A skilled DUI attorney can present the following evidence at the DMV hearing on your behalf for a desirable outcome:
You Were Not Driving
Your defense attorney can argue that you were not driving if the arresting officer did not see you driving, and the DMV hearing officer cannot subpoena any witnesses who did. If this defense argument works to your advantage, the hearing officer should set aside your DL suspension.
Your Arrest Occurred at an Unlawful DUI Sobriety Checkpoint
If your arrest for the alleged DUI offense occurred at a DUI or sobriety checkpoint that does not adhere to the necessary legal requirements, the hearing officer would consider the arrest unlawful. That means, even if it is true you were drunk driving, an illegal arrest at the sobriety checkpoint can override this fact to win your DMV hearing.
The Arresting Officer Lacked Probable Cause to Put You in Legal Custody for DUI
Like an arrest, a law enforcement officer will need probable cause to lawfully detain you on suspicion that you were driving under the influence. Your attorney can argue that you are a victim of racial profiling based on color or religion to convince the hearing officer that your arrest for the alleged DUI offense lacked probable cause.
If the DMV hearing officer considers this defense argument reasonable, he/she will set aside the action and reverse the suspension of your DL.
The Arresting Officer Did Not Observe the 15-Minute Observation Rule
According to Title 17 of the Code of Regulations, an officer must observe you for a minimum of fifteen (15) minutes before administering a breath test after stopping for a quick DUI investigation. The reason for doing this is to ensure you do not:
Failure to follow these instructions can jeopardize or taint your breath test results, meaning your BAC level was probably below 0.08% before stopping for a DUI investigation. If the arresting officer did not observe this 15-minute observation regulation, the hearing officer should reverse the suspension of your DL and set aside the action.
Your High BAC Was Due to Physiological Reasons
Your DUI attorney can also argue that your high BAC results are due to other innocent reasons unrelated to the quantity of alcohol you allegedly consumed. Physiological reasons that could be the culprit to the high BAC results include:
- Residual mouth alcohol
- Medical conditions like acid reflux or GERD
- High protein and low carbohydrate diets
If you had any of these conditions before taking the breath test, a reliable DUI attorney could use this defense argument to obtain favorable results at the DMV hearing.
The Arresting Officer Did Not Properly Advise You of the Potential Consequences of Not Consenting to a Chemical Test
If you refuse to submit or consent to a chemical test after an arrest as a suspect in a DUI case, the arresting officer must inform you that the DMV will suspend your DL for up to one year. This warning is typically in writing, and the officer must read it to you verbally upon an arrest for an alleged DUI offense.
If the officer did not follow this legal requirement, the hearing officer would likely set aside the action against your DL for allegedly driving under the influence.
It is worth noting that these are not the only defenses applicable at the DMV hearing. Other defenses an experienced attorney can use to fight for your best interests during this hearing include:
- You did give consent to the required chemical DUI blood and urine test
- The breath test equipment or breathalyzer was faulty
- Your BAC level was within the legal limit, meaning it was below 0.08 percent
Driver’s License Suspension Duration When You Lose the DMV Administrative Hearing
Unfortunately, your DL suspension will officially go into effect when you lose the DMV administrative hearing. Typically, the duration of the DL suspension or time you must wait before obtaining the license will vary, depending on your criminal history.
Below is the potential suspension duration to anticipate when the hearing officer decides to sustain the action to suspend your DL at the DMV administrative hearing:
- Up to ten (10) months for a first-time DUI offender
- Up to one (1) year of driver's license suspension if you are under 21 and you had a measurable amount of alcohol in your system at the time of the arrest
- Not more than two (2) years for a second-time DUI offender
- Not more than three (3) years for a third-time DUI offender
- A maximum of four (4) years for a fourth-time or subsequent DUI offender
When the DMV hearing officer sustains the action, your driver's license suspension duration could be longer than the period mentioned above if the following is true:
- The alleged DUI led to the injury of another person
- You did refuse chemical blood or breath test
In most cases, the DMV will allow you to drive during your license suspension period if you agree to have an IID installed in your vehicle. An IID is a car breathalyzer device that requires you to provide alcohol-free breath before you ignite your car engine. When this device detects any trace of alcohol from your breath vapor, your car engine will not start.
When the DMV suspends your DL following an arrest for an alleged DUI offense, you could also qualify for a restricted license which allows you to continue driving to school or work. Hiring an attorney with significant experience in DUI cases is the key if you are under arrest for an alleged DUI offense.
In addition to protecting your best interests at the DMV hearing, your attorney will be your legal advisor and representative during every stage of the legal justice system to obtain a desirable outcome.
Appealing the DMV Administrative Hearing Decision
If you believe the DMV's decision to suspend your license was wrong or unfair, you can request an appeal of the decision. You can do this by asking the DMV to conduct a departmental review of the suspension, or perhaps you can file an appeal directly with the superior court.
Typically, you will find the instructions and guidelines for appealing the DMV decision or ruling on the written form you will receive notifying you of the outcome of the DMV administrative hearing. For the DMV review, you will need a $120 fee. However, when you decide to appeal directly through the superior court, you will need a fee of $2,500 to $3,500 to file a writ of mandate on this issue.
A writ of mandate is typically a request for the superior court to assess and reverse the decision of the DMV hearing officer to suspend your driving privileges. Both of these procedures involve specific deadlines and operate under strict rules. Hence, it is important to have an attorney in your corner should you decide to appeal the decision or judgment of your DMV administrative hearing.
A skilled DUI attorney can increase your odds of obtaining a favorable outcome during these appeals when you lose the DMV hearing.
Find a Reputable DUI Attorney Near Me
If you are in legal custody for an alleged DUI offense, the chances of winning the DMV administrative hearing will depend on your arrest's unique circumstances and facts. Having a reputable and experienced DUI attorney in your corner can significantly increase your odds of obtaining a favorable outcome at this proceeding.
Our attorneys at Los Angeles Criminal Attorney can challenge what would otherwise result in an automatic DL suspension to retain your driving privileges pending the outcome of the alleged DUI charge. We invite you to contact us at 424-333-0943 for an obligation-free consultation with our attorneys if you are in trouble with the law for an alleged DUI offense.
Once you contact us, we will do whatever we can immediately to gather the necessary evidence to help you obtain a favorable outcome at the DMV hearing and the criminal DUI court case.