If you were arrested in California for drunk driving, your license will likely be suspended. In most circumstances the arresting officer will confiscate your driver’s license and provide you with a “Notice of Suspension”. This notice acts like a temporary license for 30 days. Basically, you must request a DMV hearing, formally known as Driver Safety Administrative Per Se Hearing, within 10 days after an arrest. If you fail to request a DMV hearing within 10 days, your license will automatically be suspended at the end of the 30 days. If you do request the hearing within 10 days, your suspension/revocation will be delayed pending the outcome of the hearing.
WHAT TO DO ONCE YOU GET A DUI HEARING:
When you are arrested for DUI, it is likely that you will be subject to two separate proceedings. One is the DMV hearing which is an administrative proceeding regarding the suspension or revocation of your driving privileges. The second, is a criminal trial in court which determines if you are innocent or guilty of a crime such as driving under the influence and/or driving with a BAC of 0.08% or higher.
Although a DUI hearing is more informal than a court hearing, you are still entitled to rights at this administrative hearing. 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
HOW TO WIN A DUI HEARING:
Here are five common DUI defenses that may apply in your case, and get your suspension set aside by the DMV hearing officer.
1. You weren’t driving –
If the officer didn’t personally observe you driving, and (1) the DMV doesn’t subpoena any witnesses who did see you driving , or (2) there is no other evidence that you were driving, then the DMV should set aside the suspension.
2. The officer didn’t have probable cause to stop you in the first place-
If the officer didn’t have probable cause to stop you for driving under the influence, the suspension must be set aside.
3. The officer didn’t observe you for 15-minute before administering chemical test.
Title 17 of the California Code of Regulations governs how breath and blood tests must be administered, collected, stored and analyzed, and officers are required to adhere to these regulations. One of these regulations says that the officer must observe you for atleast 15 minutes before conducting the breath test. If the officer didn’t observe you then the blood alcohol test results is likely wrong, and this could render the DMV to set aside the suspension at the hearing.
Title 17 also states that breath testing 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 then the BAC results are likely inaccurate.
4. 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 word for word to you. If he/she fails to do this, you could win your DMV hearing.
Therefore if the officer forgets to read it to you, doesn’t read it verbatim, tells you that your refusal could result in mandatory suspension, instead of will result in suspension then the suspension could be set aside.
If you in fact didn’t refuse to submit to a chemical test and merely were further inquiring and the officer misinterpreted it as a refusal to submit to the test then the case should be dismissed. If you didn’t refuse and there is no chemical test then it is likely there is no case against you, and a DMV administrative hearing will be set aside.
5. There was an error in the officer’s report
If the arresting officer fails to report the BAC results on the report, fails to sign the report, or records the wrong BAC then this could cause the case to be dropped.
IF YOU DON’T GET A DMV HEARING OR YOU LOSE AT THE HEARING, HOW LONG WILL YOUR LICENSE BE SUSPENDED AND WHETHER YOU ARE ELIGIBLE FOR A RESTRICTED LICENSE:
|
Length of suspension |
Can you get a Restricted License? |
Other |
|
| First DUI Offense | If this is your first DUI offense your license will be suspended for 6-10 months | After the 1st month you may be eligible for a restricted license which would allow you to drive to and from work and to DUI school. You are eligible if you meet the following criteria:
|
If your DUI case caused injury to another person or you refused to submit to a chemical blood test, the DMV may suspend your license for one year. |
| Second DUI Offense | If this is your second DUI in 10 years, then the DMV will suspend your license for 2 years. | You may be eligible to convert the suspension to a restricted license after one year, or 90 days if your case was not a DUI involving drugs and there were no other aggravated factors. (To be eligible for restricted license in 90 days you must meet the criteria above and,
1.submit proof of enrollment in an 18-month or 30-month California DUI school, and 2.submit proof that you have installed an ignition interlock device. |
If DUI caused injury then license suspended for 3 years (may get restriction after 1 year if you meet the criteria above).
If refused to chemical test, suspension is for 2 years. |
| Third DUI Offense | If this is your 3rd DUI in 10 years then the DMV will suspend your license for 3 years. | You may be eligible for restriction after 1 year if meet criteria. | If the DUI caused injury to another person, then the DMV will suspend your license for 5 years (may still qualify for restriction after 1 year).
If refused to submit to chemical test suspension is for 3 years. |
| Fourth DUI offense | If it is your 4th DUI in 10 years then it’s considered a felony, and your license will be suspended for 4 years. | You may be eligible for restriction after 1 year if meet criteria above. | |
| Underage DUI | 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. | If you refused a chemical test, your license may be suspended for 1-3 years depending on how many prior DUI violations you have. |
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