I Have Been Accused of a Third Offense DUI, How Will my DMV Hearing Work?
In Los Angeles, it is a well-accepted fact that if you want to get anywhere in the city, you will need to drive there. Many people aren’t aware that this “basic necessity” is a privilege, which is granted by the state of California. Many people don’t realize just how crucial it is to be able to drive their vehicle until they are faced with the possibility that this necessity may be taken away as a result of driving under the influence. Losing your license in Los Angeles raises questions people never had to address prior to their arrest. In rush hour traffic, how is someone without a license supposed to get to work, school, and other appointments? Public transit in Los Angeles is not known for being particularly functional; being arrested for driving under the influence can have a profound impact on the life of someone who resides in Los Angeles. Luckily, you have up to 10 days to request a hearing at the Department of Motor Vehicles to challenge a potential license suspension. You should be aware that DMV hearings are not designed to make it easy to keep your license from being suspended, it is a due process right that frequently occurs for appearances only. The administrative judge at your DUI hearing will not be swayed by arguments relating to why your license is necessary to you; they know your license is necessary to you. If you want to succeed at your DMV hearing, and avoid having your license suspended, you will need an experienced attorney on your side. After you have been arrested for a DUI, contact an attorney at Los Angeles DUI Attorney Law Firm so they can review your case while it is fresh in your memory, and build the strongest defense possible for both your DMV hearing, as well as the criminal DUI case against you. The importance of being represented by competent counsel cannot be overstated. In this article, we will discuss the process of the DMV hearing, what happens based on the outcome of that hearing, and what defenses tend to succeed in the DMV hearing.
Once you have been arrested for a DUI in Los Angeles, the Los Angeles Police Department, or other arresting agency, likely took away your California Driver’s License immediately following your arrest. If you have a driver’s license from another state, please refer to our DMV article “Out of State Driver’s Licenses.” In addition to taking your driver’s license away from you, the arresting agency will provide you with a temporary license, which will be on a pink piece of paper; this is referred to as an “Admin Per Se.” The clock begins ticking on your right to request a hearing with the DMV to advocate for the return of your driver’s license, without any restrictions on it. You have ten (10) days from the day you were arrested, including weekends, to contact the DMV and request a DMV hearing. If you are considering being represented by an attorney at this hearing, which we highly recommend you do, if you truly want your license back, contact the attorneys at Los Angeles DUI Attorney Law Firm prior to contacting the DMV. Our skilled attorneys contact the DMV to schedule your hearing date, file a request with the DMV to delay suspending your license until the DMV hearing has reached a resolution, gathered all the necessary information and reports necessary for a successful defense, and determine if our goals will be best served by an “in-person” hearing or a “telephonic” hearing. Many of the attorneys at Los Angeles DUI Attorney Law Firm are “specialists” in administrative law; their entire job is appearing at administrative proceedings; specifically, DMV hearings. An administrative law specialist is particularly important in certain situations including: (1) you are required to have a valid driver’s license for your job, (2) you have a commercial driver’s license, (3) you have a pilot’s license; or (4) you have a HAZMAT endorsement. Regardless of whether you need a specialist, having skilled and experienced attorneys advocating for you at the DMV hearing will vastly improve your chances of retaining your license, and your way of life in a big city.
What Topics Will be Covered at the DMV Hearing?
As mentioned above, a DMV hearing is referred to as an administrative hearing. This is so because the Department of Motor Vehicles is an “agency” created by the executive branch of the government; all hearings, and proceedings, involving an “agency” that was created by the executive branch are “administrative.” This hearing provides the person who was arrested on suspicion of driving under the influence the opportunity to advocate against the suspension of their license. At the hearing, the accused (or the accused’s attorney) will have an opportunity to present evidence in support of their contention that suspension of their driver’s license is not appropriate in their case. It should be clarified, the DMV hearing will not be determining whether, or not, you are guilty of driving under the influence; they will simply be determining whether the administrative remedy of suspending your license is appropriate. Guilt, or innocence, is decided by the Court; the Courts are part of the judicial branch of government. At your DMV hearing, the following questions will be addressed:
1) Was there reasonable suspicion to believe that the accused was driving a vehicle while under the influence of drugs, or alcohol? “Reasonable suspicion” is less than the “probable case” requirement for an arrest, but “the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts…” that the individual has committed a crime; which can include traffic violations1.
2) Was there “probable cause” to place the accused under arrest for driving under the influence? “Probable cause exists where the facts and circumstances within the officer’s knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.”2
3) Was the accused properly informed that a consequence of refusing to perform the blood, or breath, test may result in a suspension of their driver’s license for an undetermined period of time3?
4) After being informed of the consequences of declining to perform a test, as requested by the arresting officer, did the accused comply with the officer’s request that they perform either a blood, or breath, test to determine their blood alcohol concentration4?
1 Terry v. Ohio 392 U.S. 1, at 21
2 Brinegar v. U.S. 338 U.S. 160, at 175-176
3 The standard period of time that a license is suspended for refusal to submit to a test is one (1) year, but it can be longer in some circumstances.
After the administrative judge hears, and sees, all the evidence relating to the four (4) questions listed above, they will issue something referred to as a “Notice of Findings and Facts.” In this document, the administrative judge will decide whether or not to “set aside” the DMV license suspension against you. It bears noting that the administrative judge’s finding of fact does not carry over to the criminal proceedings against you. That is, the administrative judge’s decision cannot be used as evidence of guilt or innocence.
What Happens When if I am Successful in my DMV Hearing?
If the administrative judge determines that there is not sufficient evidence to support a license suspension, they will set aside the license suspension, and your driving privileges will be restored. While it is true that the finding of fact will not benefit you in the criminal proceedings against you, it does serve as a useful bargaining tool for your attorney when they speak with the District Attorney who has been assigned the case. Your attorney can attempt to gain leverage in the bargaining process by pointing out that the DMV opted to set aside your license suspension based on the facts of your case. It is important to note that if the ultimate outcome of your case results in a conviction for a DUI, or a “plea bargain” is reached where you plead guilty to a charge that involves driving and drugs/alcohol, the DMV may suspend your license at that point; this is why it is important to have competent representation throughout the entire process.
What Happens if I Lose my DMV Hearing?
If the administrative judge reaches the conclusion that a license suspension is appropriate, they will issue their finding of facts, and it will inform you of the date that your driving privileges will be restored; this is usually a year, but up to three. As a word of caution, the consequences of a DMV license suspension are different for every license you have; and the consequences to your license(s) will also depend on whether or not the current DUI charge is your first offense. Once again, it should be kept in mind that even if the DMV decides to suspend your license, it has no bearing on the outcome of the criminal case against you.
What Can my Attorney do to Improve my Chances of Winning at the DMV Hearing?
Under the supervision of attorney Vincent Ross, the attorneys at Los Angeles Dui Attorney Law Firm have gained the benefit of tutelage from an attorney who has practiced, and obtained superior results for nearly three decades. Having been trained by the best, our attorneys know every trick in the book to improve the chances of a favorable outcome at your DMV hearing. Some of these strategies/arguments include:
(1) At the time you were stopped, and subsequently arrest, you weren’t actually in physical control of a vehicle:
It is an often overlooked requirement for a DUI that the person accused of driving under the influence was actually operating a motor vehicle while under the influence of drugs or alcohol.
4 In some circumstances, the accused has a physical disability, which prevents them from complying with the request. For example, some people do not have the lung capacity to provide an adequate breath sample; this is not treated as a refusal by the DMV, if they are satisfied that you suffer from that malady.
As mentioned above, two of he questions the DMV hearing is designed to answer include: (1) was there reasonable suspicion to stop you on suspicion of driving under the influence in the first place, and (2) was there probable cause to arrest you for driving under the influence. It is a point of contention, but in most circumstances there is nothing illegal about being pulled to the side of a road, or walking around your car at a gas station while inebriated; so there cannot be reasonable suspicion that criminal activity is afoot. Next, it is debatable that on these facts, an officer can form a reasonable articulable suspicion, based on the act of being asleep in a car, or intoxicated at a gas station, that the accused was ever operating the motor vehicle.
(2) Your arrest occurred as the result of a DUI checkpoint that was not in compliance with the requirements set forth by the California Supreme Court:
Utilizing this argument will require your attorney to have a comprehensive understanding of all the facts surrounding your arrest at a DUI checkpoint, every fact matters. For a detailed discussion of how DUI checkpoints are supposed to operate, please review our article on “DUI Checkpoints.” If the particular DUI checkpoint where you received your DUI arrest was non-compliant with any requirements set forth by the Supreme Court of California, the arrest itself is invalid, and thus your license cannot be suspended as a result of it.
(3) There was insufficient reasonable suspicion to pull you over in the first the place:
As mentioned above, an officer must have what is known as reasonable suspicion that criminal activity is afoot in order to initiate a traffic stop. If reasonable suspicion is not present before the stop is made, then you have been subject to a violation of your Constitutional rights, and all subsequent evidence must be suppressed as a result of the “Exclusionary Rule.” Thus, if the only reason an officer pulled you over was because you were driving on a busy street at 2 in the morning on a weekend, despite the fact that you were obeying every traffic law; it is unlikely the officer satisfied the reasonable suspicion requirement to initiate the stop in the first place. question you. There are many reasons that probable cause could be an issue at your DMV hearing and your lawyer will discuss each of these with you during your consultation.
(4) The officer who performed the Preliminary Alcohol Screening (“PAS”) Test did not wait the required 15 minutes between the stop and performance of the test:
California Code, specifically Title 17, mandates that a police officer, who suspects that a driver is under the influence and intends to perform a breathalyzer test on that person, wait for 15 minutes before collecting a breath sample. The purpose of this period is to reduce the possibility of “mouth alcohol” causing the test to yield an artificially inflated BAC. It also serves the purpose of allowing the driver and make sure they do not eat, drink, smoke, or vomit in the interim, which would also artificially inflate the BAC result. For a more detailed discussion about the breathalyzer, and things that can increase the reported BAC improperly, please review our article on breath and blood tests.
These are only a few of the arguments an attorney can make it your defense at your DMV hearing in an effort to convince the administrative judge to set aside your license suspension. The attorneys at Los Angeles DUI Attorney Law Firm have ample experience, and training, presenting a persuasive and cohesive argument in support of their belief that it would be improper to suspend your license until a final determination of the criminal charges against you. Many of the same arguments will be put forth in the criminal proceedings, and it will be beneficial to have the same attorney who represented you at the DMV hearing represent you in your criminal trial; having an attorney who is intimately familiar with the facts of your case will dramatically increase the chances of an outcome that is in your favor.
If you have been arrested for a DUI in Los Angeles County, contact an attorney at Los Angeles DUI Attorney Law Firm immediately so we can begin preparing your case for your DMV hearing, as well as for your criminal case. Contact us at 424-285-5400