Can a driver really save a Drivers License after a DUI or Driving Under the Influence arrest? Actually, yes – for at least a while – if there is an appeal of the Department of Motor Vehicles (DMV) administrative drivers license suspension action.
By appealing an “Admin Per Se” DMV drivers license suspension, as it is called, many drivers can secure a delay of the drivers license suspension until a hearing on the suspension is scheduled and completed. This delay, known as a “stay”, can save a drivers license for 30-90 days even if the suspension is ultimately upheld.
This extra time to drive legally is often a valuable tool in trying to limit the damage of a DUI arrest. To some people, it may mean the difference between losing a keeping a job after a DUI arrest. And who knows? You might win that hearing and save the drivers license.
In California about 13% of the people who try beat a Department of Motor Vehicles (DMV) Administrative per se drivers license suspension following a DUI arrest beat the suspension.
When a California driver is arrested for a violation of Vehicle Code section 23152, also known as a “DUI” (Driving Under the Influence”, the Department of Motor Vehicles (DMV) will automatically suspended the person’s drivers license. This DMV action is independent of any court action in a criminal case.
| The DMV action against the driver is separate from the criminal case, and must be dealt with separately. |
It is possible to win a DMV drivers license suspension hearing after a DUI arrest, and then lose the court case separately. It happens once in a while.
The Department of Motor Vehicles automatic suspension of a drivers license following arrest is called an “administrative per se suspension” because it is automatic..
Typically, the admin per se suspension process goes like this:
When a law enforcement officer makes a Driving Under the Influence arrest, they typically confiscate the actual drivers license card. In exchange for the drivers license card, the officer gives the recently arrested driver a DMV form. The form is a DMV Suspension Advisement on a standard government looking piece of usually pink carbon paper.
This DMV form from the officer gives the driver formal notice that their drivers license will be suspended within 30 days, and acts as a temporary drivers license until the suspension takes effect.
The 30 days notice period before suspension is required by law to give the driver time to take action against this automatic suspension or to get ready for it by notifying employers, getting alternate transportation, etc.
Everyone in this situation should read their DMV Notice of Suspension and Temporary Drivers License form carefully.
Administrative Suspension of the Drivers License After a DUI Is Automatic:
The DMV administrative per se suspension is based solely on the initial facts leading to the arrest. It does not depend on whether a driver is guilty or not. It’s all about the arrest.
Because driving is a “privilege” and not a right, it can be taken away without a true showing of proof at this stage. However, to sustain the suspension against a challenge by the driver, there must be evidence that the driver was actually impaired at the time of driving upon a review.
If the driver wants to present his or her own evidence, or challenge the police version of the story in relation to their driving privilege, the driver must demand an appeal hearing from the Administrative per se suspension.
To demand a hearing a driver need only call the DMV driver safety office within the deadline. Normally, the deadline to request such an appeal hearing is about 10 days from the date of arrest. The actual deadline is listed on the DMV “Notice of Suspension” form police officers give to drivers after arrest for a DUI.
From a criminal defense attorney’s point of view, there are ways to win a DMV drivers license suspension hearing after a DUI arrest. For example there may not be sufficient evidence to justify the officer’s belief that the driver was impaired, there may be problems with the testing procedure, the cops may have made errors, failed to sign a required certification of test results, etc.
Of course, sometimes the innocent are accused and unjust action must be reversed.
A common defense used by criminal defense attorneys in DMV suspension hearings is that of an illegal stop in violation of the 4th Amendment to the US Constitution.
Because of the possibility that there may be issues in your facts that you do not see, it is prudent to speak with a criminal defense attorney about your case immediately after your arrest.
Waiting until your court date to worry about the drivers license part of the problem will result in the deadline for challenging the DMV action passing, and an uncontested drivers license suspension.
If You Miss the Deadline to Request a Hearing to Appeal the Suspension, You Lose.
A driver can challenge this automatic suspension, but they must take action within 10 days of the ARREST. This means 7 days after you get out of jail.
Within this 10 day period, the driver (or an attorney for the driver), must request an appear hearing to challenge the per se suspension (See Vehicle Code section 13353.2(e).)
Hearings can be in person or ever the phone. The driver may present evidence, and can be represented by an attorney. The driver may call witnesses, including the officer, testing lab officials, and other witnesses by subpoena.
Usually, a telephone call or letter from the attorney is enough to get the hearing scheduled.. Once a hearing is scheduled, the DMV will pause the suspension until a decision on the hearing, and the drivers’ license becomes valid again. Drivers requesting their own hearing should request specifically that the DMV suspension be stayed until the hearing. If you dont ask, they may just ignore the possibility of a stay.
Yes, you can extend the amount of time before a drivers license suspension after a DUI arrest simply by requesting a hearing date. Often DMV is booked up for months, so it can be a long period that can help a driver make new arrangements if a suspension is inevitable.
Getting a hearing to challenge the suspension and delaying the suspension are easy. Winning a DMV hearing after a DUI arrest is difficult. A former DMV hearing officer recently told me the winning percentage was roughly 17% when the driver was represented by an attorney.
If There Is No Conviction in Court, You Have More Work To Do.
Even if your DUI case is dismissed, your drivers license will remain suspended unless you request a hearing.
After an arrest, the prosecutor, normally a District Attorney (or City Attorney in some places) must file charges in the Superior Court to start a criminal DUI case. Sometimes, the prosecutor will decline to file these charges, because of evidence problems.
This happens often in borderline Blood Alcohol Content (BAC) cases such as 0.06% and lower. Sometimes with such a low BAC, there will be an arrest and then a DMV administrative per se suspension, but no charges filed because of the low BAC.
If a DUI case is not prosecuted after the arrest – for example the DA dismisses the case or does not file charges – then the law requires DMV to review the suspension and reinstate the drivers license unless they find independent justification for the suspension. (See vehicle Code section 13353.2(e)).
The drivers license reinstatement after a dismissal or failure to file does not happen automatically. If a driver is arrested for a DUI, but charges are never filed by a prosecutor, the driver may need to notify the DMV on his or her own.
If no charges are filed, the deadline for a hearing increases to 1 year, so if you missed the 10 day deadline, you can make a late request. A letter to the DMV Driver Safety Office requesting a Vehicle Code section 13353.2 (e) hearing should get it scheduled.
At the Vehicle Code section 13353.2 (e) hearing you can present evidence that the case was not filed, etc.
If a defendant is acquitted (found not guilty) at a trial in court of the DUI charges, the DMV is required to release the suspension automatically.
ATTORNEY NOTES ABOUT DMV DUI SUSPENSION HEARINGS
1. Always request a DMV hearing to appear the administrative drivers license suspension. Sometimes you win for no foreseeable reason and get to keep your drivers license.
2. A public defender will not help you at all with the DMV part of a DUI problem. To get that help, you should hire a private attorney to handle the entire DUI – including DMV problems.
3. In person hearings usually produce more decisions for the driver than do telephonic hearings.
4. Only about 17% or less of the drivers license suspension hearings result in a decision for the driver.
5. Always object to entry of the police report as hearsay evidence during a DMV suspension hearing. Such an objection can serve as a basis for appealing the DMV decision to the Superior Court after the hearing if you wish to continue the fight.
6. Almost always it is a good idea to subpoena the investigating officer(s) for the hearing. If they do not appear after subpoena, there is a great argument for setting aside the suspension because the defendant cannot cross examine those witnesses on their reports, observations, and errors.
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