DUI DMV Hearing
When you’re arrested with a DUI, you’re facing two battles. One is with the DMV on the one hand, and the other is with prosecutors in court. The DMV wants to take your license away from you and the prosecutors want to convict you of a crime, of a DUI.
We’re going to talk about the process for each of those and how it all works, what you’re going to see happening. Let’s first start with the DMV.
Can I keep driving after my DUI arrest?
When you were arrested you were given a pink piece of paper and that piece of paper says that if you don’t contact the DMV within 10 days, they’re going to take your license away from you.
When we contact the DMV, we’re going to schedule a DMV hearing. It’s called an Administrative Per Se hearing, APS. We call it an APS hearing and the purpose of that hearing is to convince the DMV not to take your license away from you. When you retain my services, I’ll contact the DMV for you. I’ll schedule the hearing. I’ll handle all of the logistics there.
Will the DMV suspend my driver’s license after I got arrested for a DUI?
In order to suspend your license, the DMV has to prove three things. Number one, that the law enforcement officer had reason to believe that you were driving while impaired. Number two, that you were lawfully arrested and number three, that you were driving with a blood alcohol concentration or BAC, of .08% or more at the time of driving.
Do I have to be at the DMV APS Hearing after a DUI arrest?
The DMV hearing takes place in a DMV office. It’s called the Driver Safety Office. It’s not the normal DMV that you’re used to going to, to get your photograph taken and things like that. It’s a special office. At the hearing, there is a DMV employee who is the hearing officer. Generally speaking, I don’t need you to be there, for the most part. I’ll let you know if I need you there, but usually you don’t have to be there.
What happens at the DMV APS Hearing after a DUI arrest?
The hearing takes place in a small office with the hearing officer on one side of a desk and I’m on the other side of a desk. The hearing officer, again, is a DMV employee. It’s not a lawyer, it’s not a judge. It’s just some random DMV employee they decided to allow hold these hearings. The way the hearing officer proves or tries to prove these three elements is by using the police reports and that’s basically it. Every once in a while they’ll have a police officer come in to testify but that doesn’t happen very often.
What does the DMV have to prove in order to suspend my driver’s license?
The DMV tries to prove that the officer had a reason to believe you were impaired by showing your driving pattern. If you had a bad driving pattern, maybe you were weaving in and out of traffic or maybe you blew a stop sign. They also try to use the field sobriety tests to show, “Hey, this guy did a bad job on his field sobriety test. He completely failed them.”
The DMV will use the results of your breath or blood test to try to prove that you were driving with a .08 or more. Remember that the time of your breath test or your blood test was after the time of your driving. Whatever the scenario, your test was taken after the test of your driving, so how does the DMV prove that your BAC was .08 or more at the time of driving? These are issues that we attack. It’s too involved to get into it during this video, but there are ways we can attack that.
The third issue is whether or not you were lawfully arrested. You can never have been lawfully arrested if you were unlawfully stopped to begin with. If the officer had no reason to pull you over or he pulled you over illegally or he detained you illegally, all of that means that a subsequent arrest could not have happened legally.
These are issues that we’re going to look at, whether or not the officer had a reason to pull you over. That’s how we attack these issues on the substantive law.
Can we win the DMV APS Hearing after my DUI arrest?
The other way of winning these DMV hearings is based on procedural law. The DMV hearing is governed by a number of different statutes and codes. For example, there is the Government Code, the Evidence Code, the Vehicle Code, Title 17. All of these are really important. Title 17 especially is important.
Title 17 essentially gives a list of requirements to the police officers and to the DMV that they have to follow. Very technical stuff, very nitpicky. If the DMV or the police officer fail to follow any of these very nitpicky rules, we can win. It is crucial, I mean really important, that your lawyer knows Title 17 like the back of his hand because it can mean the difference between you losing your license and driving to and from work, to the grocery store or picking up your kid from soccer practice, that kind of thing.
Just to give you an example, the first DMV hearing I ever did as a brand new lawyer, there was a form the DMV used and there was a little box on the form that the cop was supposed to put a check mark in. In my case, the cop didn’t put a check mark in the box. What does that mean? I won the DMV hearing, saved my client’s license. Had nothing at all to do with whether or not he was guilty of a DUI.
What happens after the DMV APS Hearing?
If we win the DMV hearing, great, you keep your license. If we lose the DMV hearing, you will lose your license. If we lose the DMV hearing, the DMV will suspend your license for four months. This is assuming this is your first time DUI, that you are at least 21 years or older and that you were not driving with a commercial license.
That first 30 days of that four-month suspension is a cold, hard, firm suspension. You cannot get out of it, period. Your license will be suspended for 30 days. After that 30 days, you can apply for a restricted license and that will allow you to drive to and from work and to and from an alcohol class. This is assuming a number of different facts and could be different in your case. There are so many different scenarios, it’s easier to discuss it by phone.
Will my DUI charges in court affect my driver’s license and the DMV?
I said that if we win the DMV hearing, you’re golden and you won’t lose your license, and that’s true, but, and this is a big but and I cannot lie, if you are convicted of a DUI, you will lose your license anyway. The DMV will still suspend your license. It won’t be as 4-month suspension, it’ll be a 6-month suspension.
To learn more, see:
Court Hearing Process for DUI Cases
Field Sobriety Tests in DUI Cases