Drivers License Suspension Hearings After DUI Arrest: What You Need to Know


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.

Instant Complete Warrant Search

Instant Complete Warrant Search

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.

Questions? Leave a Comment.

About Attorney Christopher Dort

Public Interest Attorney. CA State Bar #196832. Licensed to practice law in California 1998, and then the US Federal District Court in 2000. Civil Litigation Trial Attorney (Insurance Defense Firms) 2000-2003. Private practice 2003 - present. First Solo Criminal Jury Trial 1998 (Santa Cruz County). First Civil Jury Trial 2002 (Orange County). Santa Cruz County Public Defenders Office 1996-1999 (law clerk). BA in Politics from UC Santa Cruz, 1995. JD, University of California, Hastings, 1998.
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84 Responses to Drivers License Suspension Hearings After DUI Arrest: What You Need to Know

  1. audrey says:

    I’m trying to find out how long the statute of limitations is on DUI in CA. My husband was in CA on business 10-11 years ago (maybe as many as 14 yrs) and stupidly decided it was a good idea to drive his rental car after having too much to drink. He was leaving a restaurant and bumped (so he claims) a woman’s bumper in the parking lot. She called the police, they came, made him blow and locked him up for the night. That’s his story and he seems to be sticking to it. Although, he didn’t tell me ANY of this until he, again stupidly, let his license expire. He had a valid Wisconsin license from when he had lived there before. A few years ago after he retired, he thought he’d get a job driving a school bus and when he went to the DMV here in VA, they told him he had an outstanding matter in CA. So for the past 3-4 years I’ve had to drive him EVERYWHERE he goes. I’m trying to find out how long CA is going to prevent him from obtaining another license because I’m getting really tired of carting his sorry a** everywhere.

    • Audrey,

      Great question.

      If the local district attorney charged him with a misdemeanor DUI, and then the court issued a warrant, there is no statute of limitations.

      The statute of limitations is a deadline on filing charges in court, not a deadline to catch a person who failed to appear on a criminal charge.

      A person who fails to appear at his/her misdemeanor arraignment (the first court date in a common DUI case), is considered a fugitive from justice. That label does not go away.

      What about the drivers license trouble?

      Why are you worried about that? Dude is a fugitive.

      Driving a school bus as a DUI fugitive? HA! How is the weather up there in LA LA land? Not going to happen in most US neighborhoods. Might work in some … place. I could list them, but I dont want to offend people down there.

      What to do? Hire an attorney like me to see if I can go to court and get that warrant recalled somehow. Then make plans to court out to CA and do a few days of jail time. If I can help you avoid it, great. If not, a few days in jail is a common result of an old failure to appear DUI warrant. Some judges will give 10 days for every year the warrant is out. Some judges more.

      —- Some counties dont have the $ to send him to jail if he does everything right.

      What to do? Get some cash together today, and start requesting free attorney case reviews from people like me (cdort(at)dortlaw.com).

      You probably (he that is) should give up on the School Bus idea. That’s my uninformed opinion on these imaginary facts.

      Is he the first person to blow off a DUI case and later want to be a school bus driver?

      God I hope so.

  2. Cee says:

    I was arrested for a 2nd DUI offense. I was stopped at my friends house. I had just pulled up, took the keys out, and opened my door when an officer pulls up behind me, shines his light, and tells me to close my door. He comes up to my window and asks me if I were drinking. I told him I had a drink and I just left the bar up the street. I step out, do all the sobriety tests, and give a breath sample. He had pulled me over for not having a license plate on my front dash, he says. Is there any hope for avoiding jail time in this situation? I don’t think I can afford a lawyer. Also, should I even bother setting up a dmv hearing? I honestly don’t think I have any shot at winning. Any advice? (San Bern. County)

    • Cee,

      This is a good, and very common question.

      From a defense attorney’s point of view, you should challenge everything, always.

      One of the reasons attorneys always want to set DMV hearings after a DUI arrest is because you can get a stay of the drivers license suspension until the hearing date, and that can save your job if you need that license until you can come up with an alternative.

      You should have an attorney’s help, because there may be issues you do not see.

      2nd offense? Cop says you are supposed to have a license plate on your dash? What have you got to lose now?

      I’d recommend that you get quotes and reviews from attorneys to gain some perspective. Maybe you can afford it – when you consider the trouble you are in – get a case review and quote from Attorney Mark Gallagher (our socal attorney sponsor). Maybe you can make payments? Let him do the stressful work.

      If there is no way for you to hire a private attorney, I’d say show up on time for your arraignment, and ask the judge to appoint a public defender to your case. The public defender is a great value if you qualify, but they will not help you with the DMV side of the case.

      Often a vigorous defense can give a defense attorney leverage in negotiating a plea agreement to end the case prior to a trial.

      But if you are guilty, and you know it, and you dont want to waste money to get what you are going to get anyway, you can just walk in and plead guilty. It would be dumb, but you can do it.

      Contact Attorney Mark Gallagher. He is good with these cases, and if all you want to do is plead guilty, it probably would not cost all that much. A lawyer can plead a dui case in about 20 minutes in some courts. He can be reached at AttorneyGallagher[AT]gmail.com

  3. al says:

    i was charged with a dui in ca and I never even had keys to the vehicle in the car or on my person. can the da prove I had physical control of the car with no keys?

    • Al,

      If the officer is going to testify that he/she saw you driving, then yes.

      If you admitted driving, then yes.

      If you drove away from a domestic violence situation drunk and your ex wife called the cops to report that you were violating the restraining order by running over the fence with your bronco, then yes.

  4. justin :( says:

    okay i got arrested and accused of driving-while-intoxicated.
    they refused to give me a breathalyzer and cop never showed up so it got dismissed. now i have a status hearing and i have no idea what i’m going to be walking in.

  5. lisa heresmyrealname says:

    My friends and I had went out to a local social club. When we were heading home, my friend opened the car door and was leaning out vomiting. I stopped at the stop sign ahead so the she could be sick without getting anything in my car. About for or five miles later, I was stopped by a police officer. He told me that he had witnessed my friend throwing up and that that was the reason he stopped me. He said that he wanted to see if I was drunk like my friend. He had me follow his finger with my eyes without movung my head. I did this. He had me wait for someone to bring a portable breathelyzer.Initially when I asked what I blew,while othere officers were at the scene, he wouldn’t answer. He put me in the vehicle on suspician of dui. I asked again what I blew and he didn’t answer. I repeated the question and he said .13. I was given the breathelizer at the station and blew a .09. My question is was the stop even lawful considering that the stop wasn’t based on anything that I did. I wasn’t weaving, or speeding. I hadn’t broken any traffic laws. The officer told me to tell my friend that it was her fault. Do I have a chance of preventing my license from being suspended if I request a DMV hearing?

    • Lisa, lisa, lisa, why in the world did you use your full name? Hold on, I have to go back and edit it to protect yourself from yourself. Your prosecutor or judge might be reading your comment.

    • Lisa,

      Ok Im back. I changed your real name to “heresmyrealname”.

      This is a good comment.

      If you (your attorney) can convince the judge your stop was illegal, your case will almost certainly be dismissed.

      If you can convince the DMV hearing officer it was illegal, you will keep your drivers license.

      In court, you challenge an illegal stop via a Penal Code section 1538.5 Motion where you argue the stop was made in violation of the 4th Amendment to the US Constitution, which prohibits unreasonable searches and seizures.

      But I have a surprise for you!!! Woo Hoo!!!!

      Ready, here it is:

      It is very unlikely the officer’s testimony in the 1538.5 hearing will match what you told me here. The officer is going to say he / saw you violation the law.

      If I were your attorney, I’d would tell you that the cop is probably going to testify that he/she saw you:

      “weaving on the wrong side of the middle of the road with a dead person hanging out the door barfing at 40mph in a 25 mph construction zone at 2:15am. That’s why I stopped the vehicle your honor.”

      The easiest way for a cop to beat a 1538.5 motion is to say they saw you weaving.

      They know what to say in these situations to beat the 1538.5 motion. To win on an illegal stop, it helps you have a really good fact, like “There was no stop sign at that intersection.” – which incidentally works if you are driving the wrong way on a one way street. No kidding. I’ve seen that one work.

      However, any attorney worth his/her salt would try anyway, with the goal of pursuing every single possibility, and by marking the record with as many legal issues for appeal as your client has money for can.

      I wrote an article here about how to challenge an illegal stop.

      http://trafficcourtpros.com/blog/how-to-challenge-an-illegal-vehicle-stop-motion-to-suppress-evidence-explained/

      Can you do it yourself using my self help form? Technically yes, realistically, no. You need to have a skilled defense attorney to have a reasonable shot at winning.

  6. Stefan says:

    My attorney didn’t show up on my DMV Hearing. The suspension will re-imposed.
    What can I do about my attorney? Any chance to win my driver license back?
    Looking forward to your reply.

    • Stefan,

      Most DMV hearings are telephonic. Sometimes, DMV calls at the wrong time. They’ve done it to me before.

      But technically, an attorney is not required to appear at a dmv hearing. It’s the DMV’s burden to prove up the suspension. And the attorney can mail in a brief challenging the evidence or law, or whatever.

      Maybe your attorney decided there was no hope, no evidence on your side, and that it is just better to ride on the burden of proof issue. They still have to hold the hearing with or without an appearance.

      Maybe you didn’t pay your attorney to do the DMV hearing. It is a separate process from the court case. Most attorneys charge for the post DUI DMV hearings separately?

      Maybe your check bounced?

      I dont know.

      When you challenge a DMV drivers license suspension following a DUI arrest, you are actually appealing the suspension order that was imposed when you were arrested. So if you lose that DMV suspension hearing, you are really losing the appeal, and therefore losing for a second time.

      Can you overcome being a 2x dmv loser and get avoid the suspension? Probably not, but I dont know what the evidence was. What was the evidence against you?

      There was something else I needed to say . . . oh yea. Public Defenders will not help you with the DMV part of a DUI case. They are only paid by the county to represent a defendant in court only. No DMV work from a public defender. Unless you find one that is willing to help you for free.

      That, my friends, is one of the reasons when money does in fact make a difference in a DUI criminal case. People with money get quality DMV representation. People who depend on the public defender services, get no DMV help. Wish it were not true.

  7. nicholas says:

    Hello,

    I am a bit unclear of what steps to follow after my DUI about a week ago. I had decided to do the blood test, so i assume I am technically not charged of any crime yet? my court date is still about 3 weeks away, but knowing the results of my blood test would better prepare me to take the necessary steps. Am I supposed to just wait until my court date to find out, or is there any way to find out my results sooner. Thanks so much for this information!

    • Nickolas,

      This is a great comment.

      You have probably already been charged with a crime. Usually in a CA DUI case, the charges are filed the day after arrest, or the next week day. Sometimes it takes a few days more. The prosecutor is not required to wait for test results to charge you.

      Blood test results may be available at the arraignment, but it may also take a few weeks. It varies from county to county.

      Breath test results are available right away. Blood tests take a couple of weeks, usually.

      What steps should you take now? You should hire a defense attorney today. That is what I would do.

  8. Eric Gonzalez says:

    What are the percentages of “drivers” who win their DMV hearings due to Officer Falsely Pulling Over Drivers due to Lane Change and Turn violations? Those laws are very vague in the DMV handbook. Turn Street about 100 feet which is literally 2 seconds of driving in a car at 30 mph. Turn Lanes “when reasonably safe”. Just thought I’d ask even though we all lose anyway.

    Also, I am filing a claim against the officer for Racial Profiling. Do you have any experience in that field, or one your collegues? Thank you Sir!

    • Eric,

      About 15% of all appeal hearings of DMV admin per se suspensions are won by the driver. Nearly all of those drivers think they were stopped illegally.

      It’s hard to prove up. If the cops says they saw you break the law, you are screwed. Unless you can somehow show it was false testimony – like with video.

  9. anthony oliver says:

    i was driving and just decided to pull over myself to make a call to the wife when a county sheriff pulled up behind me and turned his lights on.I was trying to call the wife when he came to the window and asked me why i was pulled over,my reply because i was scared to him was I dont know.He never asked me for my license or registration he just asked if i had been drinking and I didnt lie to him and said yes.before pulling me out of my truck he never told me why he had stopped me.I got out and they said it wasnt there juris diction and they were calling a chp in for the stop to give me some test.when the chp officers arrived they didnt ask me if I wanted a breath alizer test or a blood test so I just blew into the breath alizer.so to you do I have anything that will help me on my case?

    • Anthony,

      Do I have anything that can help you on your case? Well I have 15+ years of criminal defense experience, and a license to practice law in CA and Federal Courts. And I have a giant secret binder titled “Defending DUI Cases in CA”, and a whole Ipad full of criminal defense bench guides, pre written motions to exclude evidence, prosecutor’s handbooks, scientific reports on breathalyzers, and the subpoenas already filled out so that I can get all the records of any of my client’s breath testing machines. And more!! Ha! How about a prewritten script for challenging breath testing evidence in DMV hearings? Will that help?

      Bad news – you need to hire a defense attorney to get the full monte help. And probably an expert witness to testify in your favor with science.

      What can I give you in 3 minutes for free here on this blog?

      Well, do you think you are innocent or guilty? You didnt give us much info. Did you get arrested? Are you talking about a road side test, or a test at a police station or hospital?

      What was the area like where you stopped? Did you stop in the middle of a freeway exit? I cant tell.

      If you did get arrested, and do have a court date pending – my best advice would be start shopping for attorneys, show up in court on time, and ask the judge for more time to get an attorney if you need it. If there is no way you can hire an attorney on your own, show up to court on time and ask the judge to appoint a public defender to represent you. Fill out the application form, and assuming they give you a public defender, tell that person everything.

      A public defender will not help you with the DMV hearing in a DUI case, or any part of the DMV process. If you want that help, you have to hire a private defense attorney.

      I hope that helps.

  10. gorge gris says:

    my lawyer lost my dmv hearing in feb…i asked about an appeal and he said he dosnt do appeals…my question is can i do anything now that my licence been suspended about two months now?..i was park on the freway when police arrive i was, when I took a breath it was 0.06 an hour later they took blood it was 0.08. My lawyer said when they see 0.08 its automatic suspended. what can i do to get suspention of dmv record…it has messed up alot of job offers.

    • Gorge,

      Almost everyone who has a DMV Administrative Per Se Suspension Hearing loses. I think only about 10% or so are won by drivers. Maybe less. DMV actually publishes the statistics. If you want, you can look it up.

      The standard of proof for suspending a drivers license following a DUI arrest is very low. In a DMV hearing, it is much lower than the standard of proof needed for a conviction in court.

      Driving is a privilege, not a right.

      A blood test of 0.08% BAC is a really bad fact. Sometimes it can be overcome with expert testimony about problems with the testing, the timing, or the lab equipment. The bad news is that most people dont use expert witnesses at the DMV hearing because either 1) they dont know you can; or 2) they dont have any money left because the gave all to the bailbondsman, and the attorney, and the tow company to get the car back that they cant drive anymore anyway.

      (hint to those with this problem in the future – spend your money getting yourself out of trouble – not getting your car out of impound)

      But to answer your question: Can a loss in a DMV DUI suspension hearing be appealed? Yes. You can file a “writ” (form of appeal) challenging the DMV suspension in the local county superior court.

      The best argument on appeal is often that the DMV officer relied upon inadmissible or hearsay evidence in upholding the suspension.

      Can you hire me to do it? No. I could do it, but I hate that kind of work. And the odds of winning are so low that I would probably tell you that you are going to lose right from the start.

      I can however recommend that you contact Attorney Art Dudley: http://members.calbar.ca.gov/fal/Member/Detail/56921

      He knows how to do it and win when possible. He has been doing it for 30 years.

      How much does he charge? I have no idea. Ask him.

  11. Jerm13 says:

    Mr. Dort,
    1st. Thank you for being here.
    you get a lot of inquiries so I will try to be to the point.
    I was arrested for a dui on sep.3rd 2012 I have a commercial license for work. I was in personal vehical not at work. I blew a 0.10 and blood test 0.11. I have an attorney but he doesnt offer much hope. Do you have any pointers on dealing with the DMV at the hearing which is finally March19 2013. I offered the D.A a Helmond Dollar plea, are you familiar with that? They denied it. I will pay and do whatever they ask as long as I can stay employed unfortunatly without a commercial license my life as I know it is over. No mortgage payments, child support, etc can be paid. Any advice is most appreciated. Thanks

    • Jerm13,

      My best suggestion is that you shop for and interview (verbally only) several qualified forensic toxicologists to see if there is any scientific hope for you. I wrote an article on using such expert witnesses in DUI cases. : http://trafficcourtpros.com/blog/does-a-defendant-in-a-dui-case-need-to-hire-an-expert-witness/

      If you can find an expert with a favorable opinion that might save you, a jury trial might help. And you can use an expert witness at a DMV hearing. It will cost money. That will not be a cheap expert.

      Losing a jury trial cant hurt. What have you got to lose? Attorney’s fees? Ha! Write him a check. Bank of WAMU. Countrywide, something like that maybe?

      The prosecution needs 12 thoughtful citizens to declare you guilty after a jury trial. You only need 1 crazy person to vote in your favor to win. Or at least hand up the trial. Oh… and you need a good trial attorney.

      But if you are guilty . . . you might be guilty. I cant tell.

  12. David says:

    Dear: Christopher Dort
    I got stop by the police on 02/17/13 for illegal lane changed, and i was arrested after all the side road tests. I was given a pink temporary licences slip and i took my blood test at nearby emergency department. I can’t afford to hire a lawyer for DMV hearing nor the court trail. I did drink 3 bottles of heineken two hours before i got stop by the police. My question is, do i have a chance to win DMV hearing if the police officer did not write the case number on the Pink temporary licences slip, is it a good point to bring out at the hearing ?. Thank you for yours’ response.

  13. Nick Huss says:

    I was arrested on dui but then released on a detention only certificate later that morning. The blood sample broke so no further investigation is going on no charges filed. Do I still need to contact the DMV with in 10 days? or am i in the clear. They never took my licences either.

    • Nick,

      If the officer did not suspend your drivers license on the spot when you were arrested, you might be OK. The officer is required to give you a notice of suspension and “right to hearing” form. It is usually pink in CA.

      But I would also say: do not drive at all until you contact the DMV driver safety office in person to verify the status of your drivers license as of today.

  14. Claudia says:

    Can a regualr lawyer help me with my DUI case? another thing, I was arrested at a check point, did the sobriety test, I passed it ( that’s what the police told me) I choose a breathalizer to determine the percentage ( I blow twise but the cop did not tol me my results) So they took blood out of me. He never told me I was going to be arrested, he never told me my miranda rights ( I don’t know if they hvae too), he told me my eyes were red and I told him is my allergies, still he didn’t care. Can I have a case ? You suggest me to get a lawyer???

    • Claudia,

      Any licensed Attorney can represent a Defendant in a criminal case. In California, the California State Bar is the agency that licenses Attorneys.

      However, criminal defense work requires special skills and knowledge about the evidence problems, current legal issues related to search and seizure law, and detailed understand of complex scientific aspects of a DUI prosecution.

      Any attorney can walk in and plead guilty for you. But if you want to win a jury trial, you need a good criminal defense trial attorney – not a real estate attorney.

      Why did the cops take your blood? Because they think you were on drugs.

      Do you have a case? Depends on what they detected.

      Do you need an attorney? Yes. Unless you just want to walk in and plead guilty. To everything.

  15. lydia powless says:

    my son received his 1st DUI on May 12th. His suspension was effective July 8th. He received notice from the DMV his restriction remained in effect till Jan. 8, 2013. He completed the DUI Program, submitted the proof of Financial Responsiblity and received a restricted license. His court date was September 21st which was delayed several times due to the officer not being available to appear. On November 1st he received another letter from the DMV stating he needed to provide the above proof a 2nd time and that his suspension was in effect till March 21, 2013. Why the extended suspension?

    • Lydia,

      I cant answer that question, because I have no idea what the facts are, or how many points he has on his driver history report, etc.

      But I can say this:

      In CA, the drivers license consequences of a DUI conviction are handled by DMV completely independently from the court. What happened in court does not matter.

  16. Jason says:

    I was arrested for a DUI on October 27, and I will be scheduling my hearing very soon.

    I waited almost about 2 hours until i drove to go eat. I got pulled over right after because i was supposably breaking a lot and because i didn’t signal making a left. When the officer did all the tests, I know I passed all of them until he i took the breathalyzer test which i think i heard .2? But not forsure. He then said he had one more test for me to do then told me to put my arms behind and I was under arrest.

    With that info I gave you, i should also add that my friend was with me. I really was good to drive too. So now my question is that, at my hearing, because i can’t afford an attorney, should i bring my friend? What should I say exactly because this is my first time dealing with the law and I’m clueless on what to say.

    If you can please help me out, that be great.

    Thank You.

    • Should You Bring Your Friends To Your DUI Court Date?

      Jason,

      No, you do not want to bring any friends or witnesses to your first court date on a Driving Under the Influence Case.

      Witnesses are only useful at a Trial.

      Your first court date in any misdemeanor criminal case is called an Arraignment, and the only thing that happens at that court date is the judge will ask if you plead “Guilty” (no contest is the same) or “Not Guilty”. If you plead guilty, you will be convicted and sentenced. If you plead not guilty, a trial will be scheduled for sometime later.

      You need an attorney’s help. A DUI is a real criminal case that can have long term effects on your life.

      You should use all your available resources to hire an attorney in advance.

      But if that is impossible, you need to show up at the arraignment on time, and once your case is called, tell the judge “I need an attorney and I cannot hire one.”

      Then, the court will be forced to see if you qualify for an Appointment of the Public Defender Attorneys.

      • Jason says:

        And how long will that process be to be if I do qualify for an appointed of the public defender attorneys? And lastly, I should try to get an attorney no matter what, even though i cannot afford one?

        • How Long Does It Take to Get a Public Defender if You Qualify?

          Jason,

          If I were charged with a crime and believed I had a legit defense, I would sell everything I had to hire the Defense Attorney of my choice. I mean everything, including my perfect July 1989 Sports Illustrated Magazine with Greg Lemond on the cover (the last American non vampire drugie to win the Tour De France). And that Barry Bonds card I have hidden behind my toilet. My choice of Attorneys? Probably be Douglas A Fox of Santa Cruz CA.

          If you qualify for a Public Defender, they will be assigned to you immediately, and will get your case file right there in the courtroom. Usually there is 1 or 2 public defenders assigned to each criminal courtroom. And, depending on the facts and evidence, your case could end in 5 minutes, or 2 years later.

          Instant Complete Warrant Search

  17. Brandon says:

    Got an admin per se. License suspended for 90 days. Paid the fine to reinstate with the DMV, so will there also be a DUI charge from the court to follow?

  18. Hector alfaro says:

    I stop my car becouse the car board show the tire light on , I get off of the car to check my tire I went back to the car to use the phone to call my wife and AAA when a police turn his light on me pull me out the car and make take a drunk text I explain to him that I have herniated disk in lower back and don’t have balance in my legs hi ask me to take off my prescription glasses and told him I need it for my eyes he took me to jail and give me a blood test

  19. Lorraine says:

    I was arrested for DUI on Oct.7, I already made appt. for DMV Hearing on Nov.14. One thing I don’t get is, the officer still let me move the SUV truck back and forward then a few minutes later. They told me to park it in a parking lot. Even though they say I was swerving and unable to drive safely .I want to hire you

    • Lorraine,

      Thanks for the comment. Hopefully it’s a courthouse I cover.

      Yea that doesnt sound right. Emal me the details for a Free Case Review cdort(at)dortlaw.com

      Did you get a Stay of the drivers license suspension pending the hearing?

  20. Dan says:

    Hello,

    In mid Auguest 2012 I was pulled over right in front of the Los Alamitos Police Office on Katella. I had been drinking at the track but thought (wrongly) I was okay to drive. I told the police that and they administered a field sobriety test. I basically passed all of it, but they still cuffed me and charged me with the DUI. Later, when I asked the police officer how they had probable cause in that I had passed the field sobriety test, he said, I had passed all the physical aspects but that I was too fast in answering his questions and some other nonsense! Hello, I was bit nervous! Anyways, I am not sure what the exact BAC I had was but I think I heard 0.14.

    Now here is where it gets really strange. After sitting in the jail for a couple of hours with the tests and stuff they just gave me my keys and let me go. *And they had not impounded my car–they had parked it right in the police station.* Now a while before they let me go, they told me not to drive it, and they called me cab when I left, but I was pretty pissed about the whole thing and so I simply took the car right then and drove home!

    All in all, not my finest moment but not theirs either–how could they let me go at that point when I still probably wasn’t sober (it had only been 30 min since the bac of .14). And now they haven’t filed any charges and it has been two months. I still feel bad about the whole thing and want to make right but on the other hand, I think they may not file because for one thing, a judge might be really mad at them for letting me drive (think about the lawsuits if I got in an accident), and for another I really did pass that field sobriety test. Tomorrow is my due date, and I just checked and they still haven’t filed. But I guess they have up to 1 year. Should I just let it be and do nothing or should I file the 13353.2(e) exception with the DMV (now that they have officially not filed within 2 months)? If I have even a small chance of getting my license back, it seems worth it.

    Thanks!

  21. James peirce says:

    my son was arrested for first offense DUI Oct 7, 2012. he has scheduled dmv hearing Nov 9. Police department told me he cannot get police report until after first court hearing. I don’t know if their was probable cause to pull him over and after breath test at police station he vomited. will dmv have police report? what should we do?
    thanks, jim

    • James,

      The DMV is required by law to send you copies of everything they want to use to enforce the suspension. Typically, about 30 days before the hearing, you get a “discovery package”. Drivers also has a right to subpeona records and documents relevant to the arrest, including manuals, test machine maintenance records, the personal appearance of witnesses, etc. But it is very difficult for a person handing their own case to properly subpoena evidence and witnesses, like the police officer.

  22. H Gonzalez says:

    I have a simple question. I was Arrested for having a DUI. I requested a DMV hearing and I won the case because the officer did not show up. 6 months later i went to criminal court and was convicted of the DUI. According to your everything i have read, You state that both courts are not related. Since i won the DMV hearing will my license still be suspended by the DMV for 90 days?

    • H,

      DMV is not a court. When you challenge the administrative drivers license suspension by DMV after a DUI arrest, you are really just talking to a DMV employee – not a court.

      If you win a “set asdie” of the DMV per se administrative suspension, and later get convicted of the DUI in court I believe that your drivers license will not be suspended by the DMV. But make sure your address with DMV is always current.

  23. rob g says:

    ok here is my situation, i was pulled over took the sobriety test then the breathilizer. i was told that it was not read so i blew into the machine over 3 more times with the same outcome. i was transporterted for blood test but was never given a blood test but was told i refused. i got a lawyer but id like to know your opnion.

  24. nelly says:

    I got pulled over in CA and refused to take the breathalizer before the officer arrested me, but i agreed to a blood test, he arrested me and he never administered. my licence got taken away and i spent 6 hours detained, i thought i was waiting for the blood test to prove i was not intoxicated. i’ve never had a record or problems with police. i am waiting for my dmv hearing, i’ve read when you refuse it’s worst. but i told him i wanted the blood test because i don’t trst the breathalizer…i’m waiting for the police report but if it’s not stated there that i asked for a blood test i want to have the police officer present. what are my chances of facing him and getting my liscnce back?

    • Nelly,

      I am not sure what you mean by “he never administered”.

      Do you mean “He never gave me a blood test”?

      I’m not sure what to say about this. If you refuse a Blood Alcohol Test when asked by an officer, generally you lose your license for 6 months or more – in additional to the court case penalties.

      • nelly says:

        i refused the breathalizer test that’s part of the field sobriety tests, because i had 3 drinks earlier and was afraid the machine would read it higher than it really was, but because i knew i was not “drunk” i told him i wanted to do a blood test instead, since i refused the breathlizer on the road, he arrested me, and i thought i was going to take a blood test at the station, but that’s not what happened, he took me in and no test was given, i did want the test to prove my innocence.

        • Nelly,

          From a defense attorney’s point of view – you made a giant error by demanding a blood test in the first place. Blood tests are more accurate and harder to challenge in court than a breathalyzer – because the breathalyzer does not directly measure blood alcohol content. It estimates BAC with math. The blood test is real. And you were no doubt OTL according to the government no matter what. So why give them good evidence when you dont have to? That’s what a defense attorney would say.

          OTL means “Over the Limit”.

          I’d say you need to hire an attorney challenge every legal and factual issue in the case. Your statements are probably recorded. Hire a great attorney who will challenge every piece of evidence the government tries to use against you.

  25. Chris L says:

    I recently got pulled over and cited for:
    1. 23136 (a) -Driver under 21 w .01% B.A. or more
    2. 23222 (a) -Open container

    Details: I was hanging out and drinking beer with some of my friends at my friends house. We went out to smoke a cigarette and ended up hanging out in my car for a little bit and went back inside to hang out. Later on, as I was driving home, I got pulled over. The police officer told me I got pulled over for driving recklessly and asked me if I was talking on the phone. That’s when the police officer noticed a can of Steel Reserve beer in the cupholder, which I had no idea was there, apparently one of my friends left it in my car. The officer then continued to ask me if I drank that night, how much I had to drink, etc. and then asked me to take the FSTs and I blew into the breathalyzer 3 times and they told me it was 0.04%. After all that, I didn’t get arrested and they had me call someone to pick me up. This was also my first time.

    Now I have a few questions,
    Do I have a good chance in court? and should I hire an attorney?
    I’m a student and am currently unemployed so I’m unsure if I can pay for their services but at the same time, want the best out come in court and for my record.
    Also the officer did not issue me a pink temporary license but gave me my original license back. Should I still schedule a hearing for DMV if my license did not get taken away?

  26. Mario says:

    Hello,

    I was pulled over because the officer said he got a call about a drunk driver, that is what he told me at the time (police report says my light for my plate was out) I took the breath test three times (I remember four) and the blood back at the station. I just got the police report in today and I noticed that it does not tell me any of the results of the breath or blood test. What does this mean? Why was it not included? Can they amend the police report and present the results at the hearing? How does this impact my DMV hearing?

    Note that I was pulled over a month ago.

  27. Kenny says:

    I received a speed exhibition ticket instead of a DUI in court but I lost my administrative per se hearing to the DMV. Now I am looking for sr-22 insurance (court ordered) but whenever I get a quote from insurance companies they tell me that I have 3 points on my record from the DUI and 2 from the speed exhibition. How can this be? I have a clean driving record besides the alleged DUI. Does this mean I have two moving violations instead of one? I am utterly confused as to what the insurance companies are telling me.

    • Kenny,

      This sounds like a classic case of a person who does not have an attorney getting screwed by DMV.

      Well, maybe not.

      DMV found you guilty of the DUI. Court did not. That’s not strange. Happens a lot. The DMV action and the court action are completely independent. The burden of proof for DMV to find that you drove while 0.08% or above is much lower than the burden of proof to take away your freedom (beyond a reasonable doubt).



  28. Lorena says:

    I was charged with a DWI in May i blew a .08 I attended the DMV hearing but the officer failed to appear. If the officer fails to appear the court hearing in Sept. what happens? Now, if he does show can a lawyer fight for it to be dropped to reckless driving? The officer called me back to the scene the day of the arrest & didn’t been in report he saw me driving whats my chances?

    • Lorena,

      In CA, police officers are not required to appear at teh DMV hearings for appeal of a DUI related per se drivers license suspension unless they are subpoenaed by Defendant or DMV.

      And what happens in DMV hearings (in CA) is completely separate from the court action.

      You can be found not guilty in court for a CA DUI, and still receive a DUI drivers license suspension.



  29. Amy says:

    Hi. I just have a stupid question. This also happened in RI so you might not even be able to answer it. I hit a pole with my car. I had been drinking. The cops came, towed my car away and just drove me to a friends house around the block. They wouldn’t take me home which was across a city line. Was I arrested? All of my memories are hazy at best and I don’t know what to do next – if anything. I already got my car back and they didn’t take my physical license or bring me into the station.

    • Amy,

      Yea, I probably cannot answer with detail. But I will be happy to approve a response by any competent RI attorney who wants free exposure to our 75k unique monthly readers.

      But it sounds like you were not arrest yet. Check your fingers for ink. Check your pockets for court paperwork. Check facebook for videos of you doing the field sobriety tests.



  30. Danny says:

    I was pulled over due to some white light shining through one of my tail lights that has a hole in it, all of my tail lights, signal lights and break lights function though. I had been drinking that night. I did the pas test and blew a .082 and was arrested. At the station on the more accurate breathalyzer machine I blew a .07. My license was taken and I was given a temporary license. I made a request for an administrative hearing with the dmv. I understand the dmv may dismiss my license suspension due to the .07 bac and it might never get to administrative hearing. One question I have is if it is dismissed , when would I be elgible to get my license back? Another question is would a motion to supress evidence be a viable defense come criminal case due to the fact that my taillights actually work, or is a little white light enough for an officer to pull me over? And lastly I wondered about being charged with 23152 section a and b. If I show up for my criminal case and an being charged with both a and b, wouldn’t I almost be obligated to go to trial as in my case the .07 bac reading shows me to be innocent of sec. B; or is it likely that they will still charge me of this based on the very inaccurate pas breath test? Thank you

    • Danny,

      These are great questions. Very common questions in a Driving under the influence case.

      From my experience, I would say it is very, very unlikely that CA DMV will reverse the Administrative Per Se Suspension on their own. The suspension gets imposed right after the arrest. There is no other process needed UNLESS THE DEFENDANT DEMANDS AN APPEAL HEARING.

      You might win the appeal hearing without saying anything – but I doubt it.

      If the Administrative Per Se suspension of your drivers license is reversed (vacated) – your drivers license will be eligible for reinstatement right away. You will have to go to DMV in person to be sure it gets reinstated and you probably have to pay them $.

      A motion to suppress is a tool that can be used to win dismissal of a criminal case if the judge finds the detention and/or arrest were illegal under the 4th Amendment to the US Constitution. Would it work for you? I have no idea. I have a feeling the police officer’s testimony in court is going to be a bit different than you expect. Defendants are not very good at predicting the officer’s testimony in any criminal case.

      Motions to suppress also have other uses. As long as you have a legit argument that it may have been an illegal stop – the suppression motion in a DUI case is also a great way to lock the officer(s)’s testimony into the record – so that at trial in front of the jury you know what is coming. It is also a great way to collect “discovery” (evidence) prior to trial.

      Losing a pre trial motion to suppress hearing can often help a defense attorney prepare for the jury trial.

      Here, you might be factually innocent. The prosecution is going to argue that you had a falling BAC and that the lowered BAC breath test reading was a result of the time delay between driving and hospital.

      Most California DUI cases are charged as 2 different misdemeanor crimes:

      Vehicle Code 23152(a): Driving under the influence regardless of the blood alcohol content; and
      Vehicle Code 23152(b): Driving with a BAC of 0.08% or greater.

      To be convicted, a defendant only need suffer a guilty verdict or plea to one or both of those charges.

      Usually, as part of a common first offense DUI plea agreement, one of the charges gets dismissed in exchange for an admission of guilt to the other.

      But trial is different. Even if you win on the B count because the breath test machine was broken that night – you can still be found guilty of the A count based upon FST performance, driving pattern, and officer’s observations.

      Most prosecution expert witnesses who testify in DUI jury trials (Department of Justice Forensic Toxicologists) will tell the jury that a person is “impaired” when driving with a BAC of 0.05% or above; and that expert testimony can be used to prove up the A count if the prosecutor has trouble with the B count evidence.

      For that reason, a skilled defense attorney has to defend against both counts at the same time in a trial.

      Good facts here: 1) bac of 0.07%; 2) no bad driving evidence (according to defendant).

      You might be able to win this trial.

      How much would I charge if it were in a county court that I like to work in?

      Estimate in General: $10,000 flat fee including jury trial if needed. You would also have to budget $2000 for expert witness fees; $250 for trial exhibits; $250 Jury and witness fees; and 4 days in court all day for you.

      I make it easy for you to hire me if you want to if you are a Paypal user and understand Skype. Email me.



  31. John says:

    I got arressted on 7/7/2012. I was coming home from a friends house we had drinks at a bar then went out to eat then head home around 1 or 2 am after relaxing before a hour drive home. The Cop said he pulled me over cuz I was in two lanes and asked if I was drinking. I told him yes like a couple of beers he gave me the roadside test at a gas station where he told me to go. He gave me the test and Im sure I past it but he didn’t say I did or not he just wrote on his note pad. He then asked me do u know why I pulled u over and I said yes cuz I was in the other lane and told him I feel asleep I tend to do that after a long drive home but I’m use to it but that night I had an hour a sleep Within 20 hours cuz I work nights. He then told me to blow in to this object which is a breath Alizer and then have me do it a second time. Then told me to turn around and put my hands on my head and he said I’m arresting u for a DUI. Then noticed he never gave me my Miranda rights. That being said he then told me to turn around and face him and asked me I have to options to take a breath Alizer test or do a blood test and when he said that I told him he already gave me a breath Alizer test then denies it saying that wasn’t a breath Alizer test it was a field test and so we argued for awhile with his partner as well and both denies them giving me a breath Alizer so I told them ok fine forget I want a blood test. So he put me in the front seat of his car and drove me back to the area I was at which is a hour to 45 min area to the station to get blood taking out. Waited for a good 5 to 8 min to get blood taking out. The nurse brought me in with the cop as well and wiped a alchole pad on my arm where she is taking the blood out and as a student training in the phlebotomy she wasnt suppose to do that which will contaminate the specimen. I got my hearing at the DMV in 2 weeks and my court in november. What am I suppose to do ? I believe I have a good case on how they made couple of mistakes. I’m sending out a letter to request a copy of the video from the cop car and audio tape as well to good evidence to prove. Any seggustens on what else I’m missing or should be doing ?

    • DortLaw says:

      John,

      RE: “What am I suppose to do ?”:

      1 hire a good trial attorney to defend you; or
      2 ask for a continuance so that you can go to law school, get licensed and learn how to win a jury trial.

      You do have the right to represent yourself, but without knowing what issues to look for, without having the knowledge about the science behind the testing and the tests, you have no chance against a sharpe, good looking District Attorney from UC Berkley, or Stanford, or Hastings, or McGeorge (yes, I got you in there).

      And the other problem with trying to defend yourself in a criminal case is that you are unable to be objective about the evidence against you. You are biased, naturally. You wont be able to see what the evidence actually looks like to a jury.

      Example? You think you passed the FSTs. Everyone thinks they passed the FSTs. No defendant passes the FSTs according to the investigating officer and DOJ experts once in court.



  32. JT says:

    I got a dui and hit and run misdemeanor charge less then a month ago. I hit a brick mailbox and left my car around the block. The police showed up at my house 30 minutes later. I was depressed; when they showed up I went out and admitted guilt and told them my story. When i got home I took a quick nap after drinking a beer and informing my bro of what happened. When questioned if I had been drinking since the accident I left that detail out. My hearing is in a couple of weeks and I’m going to request a public defendant. My bac was .08%. Can I get some advice?

    • DortLaw says:

      JT,

      Show up on time and sober. Take the bus. Follow your Public Defender’s instructions (assuming you qualify).


  33. Micharl says:

    Got a DUI on 7/15/2012 supposedly for speeding not on report please contact me

    • DortLaw says:

      Michari,

      Thank you for the concise comment. I deal with this one.

      Date of arrest 7/15? You probably have until 07/25/12 to demand an appeal hearing from the administrative per se drivers license suspension. Nice. Lots of time.

      So speeding is the alleged justification for the stop? But not properly documented? Maybe made up? Sounds like a good candidate for a Penal Code 1538.5 motion to suppress the evidence following the stop (ie test results). Not in the report? How do you know? I’d say that it is very, very unlikely that you have the police report already. I might be wrong, but you probably have something you think is the report, but is not the report. Are we talking about CA? Where? What County? I cant tell.

      I can say this: The police must have a valid, legal reason to justify the detention and arrest which starts at the moment the lights of the patrol car come on. You have a right to challenge the legality of the stop in advance of the trial.

      Related Articles: Penal Code section 1538.5 motions. How to Challenge an illegal vehicle stop.

  34. Daisy says:

    I got my first DUI on may, and I never did the dmv hearing, how bad will that affect me in my case on trying to get my license not continue being suspended?

    I had court on July 12th was there from 8:30am as time passed the judge wanted to go to lunch(11:40-50am) , so the public defender told me if I wanted to wait till after lunch(1:30pm) to continue or take a deal on coming back another day, and probation and classes.. I have to reforest re-appear on July 26.
    What should I do or be doing?

    • DortLaw says:

      Daisy,

      I actually do not understand what you are talking about. But I can tell you that after a DUI arrest in CA, if you do not request a DMV hearing and win that hearing – your drivers license will be suspended.

  35. Andrea j says:

    My bf was pulled over for speeding and arrested for a DUI on june 23 2012. He didn’t schedule a hearing withing the first ten days. He scheduled it yesterday(july 10) and his hearing is after his court date (july23). His hearing is on July 24. Is this still okay?
    Does he HAVE to hire an attorney? What if he doesn’t?

    •He’s had a misdemeanor in the past
    •His first DUI
    •0.09 BAC

    • DortLaw says:

      Andrea,

      Another rare set of good questions here.

      The DMV action against a drivers license following a DUI (VC23152) arrest in CA is COMPLETELY INDEPENDENT OF THE COURT CRIMINAL CASE. Do not confuse the two. What the DMV does has nothing to do with what happens in court.

      Unless you (defendant) is found not guilty. Then, the court action can affect the suspension and points. But otherwise – it does not matter at all when the DMV schedules the hearing date in term of what happens in court.

      Does he have to hire an attorney? No. I made a self help video for people who want to plead guilty to their own DUI without an attorney just for that kind of case. But the bad news is that I just discovered the link is broken! Crap. Anyway . . .

      But you do need an attorney if you have a defense you what used to your advantage. At this sounds like a case that might be defensible if you have an insanely good trial attorney like Douglas A Fox of Santa Cruz, CA. Some attorneys can talk jurors into anything. And those testing machines all have inherent error rates. Some defense oriented expert witnesses will testify the error rate may be as high as 0.05%! That 0.09% might actually be 0.04%. It is not per se illegal to drive at 0.04% BAC (although it is always a danger to the public).

      The DA’s have a counter to that problem called VC23152(a) – which is “driving under the influence” regardless of the BAC. But “bad driving” may be “good driving” if a deer jumps in front of you.

      Skilled trial attorneys also have the ability and raport to effectively negotiate the best possible pre trial offer from the prosecutor. Without an attorney, the prosecutor will not talk to you at all. Nothing. Notta. Not even a “how about we dismiss count 1 for a plea to count 2″? – which is their standard line.

      A skilled attorney that you pay enough to pay attention to you – like Steven Laberge or JT Thornton will also go though all of the testing records to look for errors, bad readings, maintenance, lack of maintenance, etc – including the breath test records of all tests that machine did that night (assuming breath test) and will also look for problems in the officer’s and prosecution expert witness testimony that your husband will never see.

      With a case on the border line – 0.08 or .09 – you may just want a trial. But to do it right, you have to not only hire an attorney, but you have to hire one that wants to win your trial.

      And maybe you will avoid a trial with a favorable plea agreement? How hard does that prosecutor want to work on all those discovery requests and motions from your attorney that just showed up on friday in then inbox?

      Browse Our Attorney Drafted CA Self Help Forms

      Free Attorney Case Review

  36. Duane McConnell says:

    Chris,
    Hi my name is Duane, and I have a couple questions about the DUI law in CA. My son recieved one on St. Patricks day and has attended every court appearance they have schedualed for him. The D.A. has continued it many times because he has not recieved paperwork from my sons felony probation officer. His probation officer had decided not to violate him but to put a alcohal braclet on him for 6 months. Since then every time a court date is schedualed it gets reschedualed because the paperwork. I was wondering is there a statue of limitation on how long they have to charge him. He can deal with his license on his own, he asked me if I could find this out for him since I am taking Criminal Justice courses.
    Thank you
    Duane

    • DortLaw says:

      Duane,

      There is a statute of limitations for charging someone with a crime. But the charging happens as soon as the prosecutor files the “Charging Document” with the court clerk. The “Charging Document” in a DUI case is usually a citation or a “complaint”.

      It is only after filing these “charges” with the court that a court date is scheduled.

      So – based on what you wrote – sounds like he has already been charged.

      Now for something completely different:

      Does he have a right to a speedy trial on the DUI charges? Yes. But that right can be waived. And if need be, the “waiver” can be “pulled” or removed. Has he waived his right to a speedy trial? Who knows. He probably doesnt even know. And that folks is why to properly defend a dui case you need a licensed and experienced attorney that gets paid enough to pay attention to your questions.

      Browse Our Attorney Drafted CA Self Help Forms

      Free Attorney Case Review

  37. Amanda says:

    I was arrested for a DUI (for the first time) early Sunday morning and I have no idea what to do now!!! I spoke to a few lawyers for some advice but they all are so expensive to hire. I planned on getting a public defender since i can’t afford a lawyer but I read that they don’t handle the DMV hearings. Is it possible to do it alone and/or to hire an attorney just for that?

    I previously read a post about somebody winning the DMV hearing because the officer didn’t report the reason for the stop. I overlooked my report and neither did mine. The officer actually didn’t tell me why he stopped me until I was already in the black & white headed to the jail. Does this help my case? and if so, is it possible for me to handle the hearing myself? He told me the reason for my stop was because I was “straddling the middle line”. However, it was on a residential street and there were no lines in the road, for one. and two, no i wasn’t. Once at the station (which took us about 30min to get to), I blew a .09.

    Please help me with anything you can.
    Thanks!

  38. Erin says:

    I was arrested and got three tickets, refusal of a breathalizer ( which I blew into at least 8 times, five by the roadsidea and three in their station),DWI and failure to keep right, I was arrigned that morning infront of a judge but never got my original tickets let with my at jail,my license was not left with me neither was my public defender packet..was that judge supposed to send in the paperwork for my suspesion for license that morning i was arrigned, is their a deadline for their paperwork? I contacted the DWI twice within two weeks,after my arrest and they said my license was still valid and nothing is pending?

  39. JR says:

    So today I had the dmv hearing and won last month I talked to the guy on the phone gave him the story ,cop said I was speeding but never put it in the report and said we were must talking blood test was .09 got off on not enough probable cause, but now I have the court to deal with my question is if found guilty in court and not dmv how does that work any advice ….it was in san bernardino and might need a Lawer just for the court hearing

    • JR,

      Sweet! You won your own DMV per se suspension hearing? Holly crap! Good work.

      If you have a 0.09% BAC case with an illegal stop issue (defense attorneys call it a penal code 1538.5 motion issue) – definitely get an attorney to do the Penal Code 1538.5 motion for you. You might be able to beat the whole thing because the government has the burden to prove the stop was legal. And if there is a material omission in the police report – there is a great argument. But you cannot do that for yourself effectively.

      If you want me to get you a free case review and quote, send me the details in private via email cdort(at)dortlaw.com

      Browse Our Attorney Drafted CA Self Help Forms
      Free Attorney Case Review

  40. Katherine says:

    In a rare case of expediency, my boyfriend was arrested for DUI in Alameda County on October 22nd, had his criminal court trial today (had planned to plead not guilty and ask for a public defender), and his DMV trial is scheduled for tomorrow (had planned to ask for a continuance to find counsel and hopefully gather more information).

    Today he found out the DA isn’t pressing charges on his case (hallelujah), but now we’re not sure how he should proceed with the DMV tomorrow? Sustaining a valid driver’s licence is critical to his employment, so this aspect is almost more important than the criminal case for him. From my understanding, the DMV is only obligated to dismiss their charges if he was actually acquitted (not just had the charges dropped), is that correct? If he provides paperwork stating the DA isn’t pressing charges (he got this today at the courthouse), and objects to the police report as hearsay, is there any chance in hell that will be enough for them to dismiss their case? Would it still be prudent to ask for a continuance to secure counsel? Do any/many private attorneys handle JUST a DMV hearing?

    Thank you in advance!

    • Katherine,

      DMV is not going to give you a continuance.

      DMV can suspend your drivers license after a DUI arrest even if your court case gets dismissed. A letter form the DMV will not help you.

      Yes, an Attorney like me can handle just a DMV hearing for you. If it’s scheduled for telephone, I can handle it today if you hire me while I am watching sports center, and I would do the the best I can with zero notice and zero preparation. But – dont worry! I used to work for the public defenders office and am very used to getting cases at the last second. “Never prepared, Always ready”.

      If you want to hire me this morning to hand a DMV hearing by telephone I would charge a flat fee of $600 (I would charge more if there were more time to do real preparation, probably $800).

      I make it easy for you to hire me. Email me the details to cdort(at)dortlaw.com, include the police report if you can.

      I accept payments on line via Paypal, credit and debit card, and even e check (I think).

  41. Kevin says:

    Does the officer/court have to charge you with a violation of California Vehicle Code sec. 23154 in order for the DMV to recognize the violation as being under probation or does the DMV have the authority to impose a violation of 23154 without being formally cited or charged by the officer/district attorney? Thank you

    • Kevin,

      This is actually a good question. In order to answer it, I have to give a lesson in basic legal procedures and clear up some myths.

      1. Everyone is presumed innocent of breaking the law until proven guilty in court (in America);
      2. Neither Judges, Courts, Police Officers, nor the DMV can charge you with a misdemeanor crime like that stated in Veh Code 23154 (probation violation);
      3. Only a prosecutor from the District Attorneys Office, or in some places, the City Attorneys office can make a criminal charge in court.

      Police officers do not charge people with crimes. They can only recommend crimes for prosecution to the prosecutors (who are licensed attorneys who have passed the state bar exam).

      So, to answer your question – no, the DMV cannot charge you with a violation of CA Veh Code 23154 or any other crime.

      But dont confuse charging you in court with noting an arrest on a driver’s history report. They are two totally different things. If you get arrested for a driving related problem, dont be surprised if it appears on your DMV driver history report.

      A driver history report is exactly that – a history of your driving. Remember you do not have a right to drive. Driving is a privilege that can be taken away from you. DMV controls that privilege, but cannot charge you with a crime that may result in jail.

  42. taken_aBAC says:

    Dear Christopher Dort,

    I have a bit of a strange story. I am located in NORCal and was pulled over and cited for the following violations:

    14601.2(a) CVC Driv w/ Suspended
    14601.5(a) CVC Driv w/ Suspended
    23154(a) CVC DUI Prob Driv W/ BAC .01% or over

    At the criminal trial I was only convicted of 14601.5 (which appears to be a clerical error because the judge only brought up 14601.2 and 14601.5; no mention of 23154). But DMV record has me as a multiple DUI offender and license is suspended until March 2012 (1 year).

    Do you think there is any possibility to getting the DMV to remove 2nd DUI charge from my driving record (to allow me to get license back earlier than 1 year) without the probe into court minutes/records causing me to be in even deeper waters for DUI charge since it was overlooked? Does double jeopardy apply in my case, even though there wasn’t an actual acquittal?

    There are additional specifics to my case at the following forum, if they may aid in your suggestions: Driving with Suspended License and DUI While on Probation

    Thank you for your time!

    • Taken, No, I do not think there is anyway to get DMV to remove the 2nd DUI ARREST from your DMV Driver History. Driving is a privilege not a right. Its easy for DMV to take away your driving privileges when you are ARRESTED for DUI (it is an administrative suspension action – not a criminal sanction that requires due process under the 5th and 14th Amendments to the US Constitution). Besides, I do not have all the info here, but I would be 3x shocked if you were not way over the Negligent Driver point limits, which is a basis for an independent suspension. If you had a certificate of “Factual Innocence” after winning a jury trial, you might have hope. PS – DMV already has the police report and test results.

  43. Kat Castaneda says:

    I would like a consultation on my case. I was arrested for DUI on Sunday, April 24 around 2am.

    • Kat, thank you for the email and comment. It appears your case is in LA County, so I have sent your submission to Attorney Mark Gallagher (attorneygallagher(at)gmail.com). He is our local LA Sponsor Attorney and can handle your case. It’s always better to hire a private attorney right away if you can, because they can do everything for you, including calling DMV to schedule the hearing within 10 days, go to court for you (you do not have to go if you hire a private attorney) and even resolve the case completely for you if you are clearly guilty. But more importantly, a private attorney will review the evidence in teh case and look for defenses that may get you lucky, or that may help provide leverage in plea negotiations.

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