San Diego DUI Lawyer Explains DMV Hearings

San Diego DUI Lawyer
After an arrest for DUI, California drivers will typically have their driver's license taken away from them at the scene of the arrest, and be issued a temporary 30 day license.  This pink sheet of paper serves as a driver's license until an automatic, administrative suspension kicks in.  A first DUI carries a 4 month administrative suspension, regardless of whether there is ever a criminal court conviction.  The DMV's Administrative Per Se ("APS") suspension process is separate from any action that the court may take against your license.  APS suspensions with a prior DUI conviction, or if there is a chemical test refusal are for one year. 

You have only 10 days from the date of arrest to request an APS hearing. 
You must call your local Driver Safety Office or have your attorney do so, to preserve your right to a hearing.  Winning DMV hearings is a tough task, even for most attorneys.  It is highly recommended that if you wish to keep your license, you have an attorney handle both your DMV hearing and

In order to sustain an administrative license suspension, the Department of Motor Vehicles must show that there was probable cause for arrest, that the petitioner was in fact driving, that the driver had a BAC above .08 or that the driver refused to submit to a chemical test.  Additionally, prior convictions will be proven using an H-6 printout, the driver's DMV driving history.  Both sides, the hearing officer and your lawyer can call witnesses with opportunity for cross-examination by the other side.  It may also be to your benefit to have an expert witness testify at the hearing to assert certain defenses.

If you DID submit to a chemical test (blood, breath, or urine), the issues at your DMV hearing will be:
1.  Whether the arresting officer had reasonable cause to believe that you were driving in violation of VC sections 23152 or VC 23153 (Calfiornia's DUI laws).

2.  Whether you were placed under lawful arrest (triggering the presumed consent to a chemical test).

3.  Whether you were driving a motor vehicle with a BAC of .08 or higher, at the time of driving.

If you refused a chemical test, the issues at your APS hearing will be:
1.  Whether the officer had reasonable cause to believe that you were driving in violation of VC sections 23152 or VC 23153.
2.  Whether you were placed under lawful arrest.
3.  Whether the police properly admonished you of the consequences of a chemical test refusal (that your driving privilege would be suspended for one year
4.  Did you actually refuse to take the test. (one refusal, even if the driver later offers to submit to the test, is enough to constitute a refusal)

Winning a DMV Administrative Per Se Hearing is very difficult.  Not only is the burden of proof lower at a DMV hearing than it is in court, but the DMV hearing officer plays the role of both "prosecutor" and "judge" at the hearing, tasked both with putting on the department's case, and with deciding whether the case has been made.  To make matters worse, hearing officers do not have a legal education or background.  Still, there are defenses you can assert, including:

-No Driving                                                           -Failure to follow proper testing procedures
-Bad Traffic Stop                                                  -Did Not refuse a chemical test
-Not above .08 BAC                                             -Rising BAC (was below .08 at the time of driving)
-Admissibility of Evidence                                    -Reliability of testimony and test results

If you or a loved one has been arrested for DUI, note that there are two distinct processes to protect your rights and your driving privilege.  Waiting until your court date to deal with the consequences of your DUI arrest will likely result in the automatic suspension of your license.  Contact the Law Offices of Nicholas Loncar for a free consultation and to discuss your DUI case.  Our office has handled a wide range of DUI cases, both in court and with the DMV

California drivers under 21 are subject to a zero tolerance policy, and are not governed by the .08 standard applied to drivers 21 and over.  There is still a right to a DMV hearing, and many of the same defenses apply.
  Your San Diego DUI Lawyer can still challenge the stop, challenge the arrest, challenge driving, and contest the admissibility of any evidence against you.  The stakes are high in Under 21 APS hearings, with a one year suspension being upheld with a loss.  Additionally, it is not possible to obtain a restricted license during this period.  Drivers under 21 may only apply for a Critical Needs Restriction, but must show extreme hardship in order to restore a driving privilege.

APS suspensions generally do not apply to Driving Under the Influence of Drugs (VC 23152(e)) arrests.
The DMV can act to suspend your license for medical reasons, even for drug use.  A medical suspension lasts until the driver can prove that they can safely operate a motor vehicle.

Nicholas M. Loncar, Esq.
San Diego Criminal Defense Attorney
San Diego Expungements Lawyer
By Nicholas Loncar  


Your comment will be posted after it is approved.

Leave a Reply