In California, if you are arrested for a DUI for driving with a blood alcohol level of .08 percent or higher, you will be given a pink temporary license that is only good for 30 days. After 30 days, if you do not request a hearing, your driver’s license will be automatically suspended for a time period of at least 30 days up to years depending upon whether this is a first offense or multiple DUI offense and whether you were 21 or older at the time of arrest and whether you provided a breath or blood sample or refused or failed to complete a chemical test.
If you do not request a DMV hearing (called an administrative per se hearing) and a “stay” on the suspension within 10 days of your arrest, you will have WAIVED your rights to have a DMV hearing and contest the suspension, and you will not be eligible for an extended temporary license.
Many people simply do not read the pink temporary license and are unaware of their legal right to a hearing. Hiring a good DUI defense attorney will allow you to fight the DMV and keep your driving privileges during the entire period of litigation which often takes several months depending upon the evidence and what your DUI attorney does.
THE DMV HEARING AFFORDS A DRIVER AN OPPORTUNITY TO CONTEST THE SUSPENSION FROM A DUI ARREST
When I have a new DUI client, I immediately contact the DMV and fax a request for a hearing, a stay, and all discovery, which includes the police report and blood alcohol test results. It is from this evidence that I can then use the power of the subpoena to obtain additional evidence such as calibration and accuracy test records of the breath machine and blood test evidence that may show a problem with the test results or the testing procedures. The DMV hearing can yield a treasure trove of evidence that can later be used to the client’s advantage in court! As Los Angeles DUI attorney Jon Straub always says, “A smart DUI defense lawyer will use the DMV proceedings to ferret out less-than-honest cops and unreliable evidence.”
If you win the DMV (administrative per se "APS") hearing, you will receive a notice entitled "Order of Set Aside or Reinstatement". This means the DMV ruled in your favor! If you lose the hearing, the notice will state that your suspension has been reinstated, and you will lose your driving privileges for a period that depends upon what time of offense you were found to have violated (i,e., a first offense DUI, multiple offense DUI, DUI with injury, etc...).
Issues to Be Addressed at the APS Hearing that Can Result in a Set Aside (no suspension)
At the APS hearing, a hearing officer employed by the DMV will consider the three following issues, in a typical adult, noncommercial DUI case:
- Did the officer have reasonable cause to believe you were driving a motor vehicle in violation of Vehicle Code section 23152, 23153, or 23140,
- Was the driver legally arrested,
- And was the driver driving with a blood alcohol level of .08 or more?
The first issue addressed is the legality of the initial detention or stop. Many times a driver is pulled over for a minor traffic infraction such as speeding, swerving, no headlights, etc...After the pull over, the officer typically claims he or she noticed the objective symptoms of intoxication such as red and watery eyes, alcohol on the breath and slurred speech. If the initial detention was not legal (such as when the officer pulls over a motorist without probable cause to believe a traffic crime or any other crime was being committed), then the detention would be deemed unlawful and the DMV suspension would be set aside.
Legal arrest may become an issue when an officer pulls over a motorist for a traffic violation such as broken tail light or speeding, which by themselves, are not indicative of a DUI, and after contacting the motorist, the officer cannot detect objective symptoms that would constitute probable cause to arrest. Unfortunately, many motorists do not exercise their right to remain silent and admit to recently drinking, and agree to perform field sobriety tests including a preliminary alcohol screening test. These “tests” are not ones that anyone can “pass”, so officers routinely claim that the driver failed to perform the tests “satisfactorily”, thus giving the officer probable cause to arrest for a DUI.
However, if there is evidence that the motorist performed consistently with a sober driver, then the legality of the arrest can be challenged. This is where subpoenaing evidence such as MVARs, any other video and audio can be important. Witnesses for the driver can also testify at the APS hearing.
The final issue, and sometimes the one most hotly contested is the issue of whether the driver was really a .08 or higher at the time of driving---not at the time of the breath or blood test. A toxicologist can testify for the driver and explain why the evidence actually shows the driver was under the legal limit at the time of driving. A rising blood alcohol argument can sometime be successful if there is evidence that the driver was still absorbing alcohol at the time of the stop and therefore the true alcohol level at the time of driving was much lower than the level shown at the time of the breath or blood test. Finding Title 17 violations or reasons why the test results are not reliable, can also result in a “set aside” of the suspension.
Technical issues can also result in a win at the DMV. If the officer does not properly fill out the DS367, or omits critical information, the DMV may be barred from admitting the officer’s statement into evidence. There are other ways to win a DMV (APS) hearing that have nothing to do with a driver’s blood alcohol level. A good DUI attorney will be able to discuss the options and possibilities with you after learning about the facts of your case.
CONTACT PASADENA DMV ATTORNEY ANN GOTTESMAN TO FIGHT TO PROTECT YOUR DRIVER'S LICENSE
In Pasadena, the police are out in full force on the weekends looking for anyone who commits even the slightest traffic violation in order to determine whether the drivers are under the influence of alcohol or drugs. Knowing your rights with respect to the DMV is important when you have a pending DUI case. I often obtain the police report and breath and blood evidence prior to the first court appearance. Knowing the evidence the District Attorney or prosecutor will be using against a criminal defendant gives a defense lawyer an advantage that he or she would not otherwise have had if the driver failed to exercise their hearing rights within the 10 days statutory time period.
If you have recently been arrested for a DUI, don't wait. Call me, Pasadena DUI lawyer Ann Gottesman, for a free and private consultation. I will explain what steps need to be taken to lock in your DMV hearing rights, and set in motion the procedure that will allow me obtain the evidence in your case as quickly as possible.