California DMV License Suspension
When a driver is arrested for DUI in California he/she is supposed to be given a choice of a blood or breath alcohol test.
If (1) a breath test indicates a .08% blood alcohol level or more, or (2) a blood (or, if neither breath nor blood are available, urine) is taken for later analysis, or (3) the individual refuses to submit to chemical testing, his or her driver’s license is immediately confiscated by the police (unless it is an out-of-state license) and he/she is issued a document from the California DMV. This paper serves as (1) a formal notice of immediate suspension, (2) a temporary license valid for 30 days and (3) a technical explanation of the law and the DMV procedures involved. But many arrestees miss the 10 Day Rule!
If this is a first offense, the license will be suspended for 4 months. This can be reduced to 1 month followed by 5 months of work restriction to and from work if the individual files proof of enrollment in a DUI school and proof of insurance (the “SR-22” form).
If the case involves a refusal to submit to chemical testing, the suspension is for 1 year; no work restriction is possible. A second offense within ten years carries a 1-year suspension, 2 years if a refusal.
The charged individual or his/her DUI attorney has ten (10) days within which to call the Drivers Safety Office of the Department of Motor Vehicles to contest the suspension at an Administrative Hearing. This is called the Administrative License Suspension (“ALS”). Our law firm sends the request to a special and dedicated fax line so that the DMV can not dispute the timeliness of our request.
It is strongly recommended that a DMV suspension hearing be requested. As experience has shown us, there is a good chance of having the suspension thrown out; the worst thing that can happen is that the same suspension will simply take effect, later in time when it is more convenient for you to stop driving than the 30 days imposed by the DMV.
NOTE: It is CRITICAL that the DMV be contacted by the individual’s attorney within 10 calendar days of the arrest. On the 11th day, the DMV will refuse to provide a hearing and the suspension will automatically take effect in 30 days from the arrest date on your pink sheet handed to you by the cop. If an attorney has not been retained within the 10-day window, the individual should contact the local DMV Driver Safety Office themselves. However, oftentimes it is next to impossible to get through.
In most cases, due to work overload, the DMV will be unable to provide a hearing before the 30-day temporary license expires. In that event, the lawyer should demand — and will receive — an extension of the temporary license (called a “stay”) until the hearing is provided and a subsequent decision rendered.
This “APS” (Administrative Per Se) suspension is based upon California’s so-called “implied consent” laws: any person driving in this state is “presumed” to impliedly consent to chemical testing if he or she is suspected of drunk driving.
The DMV license suspension hearing is conducted by a hearing officer who is an employee of the DMV. This person, although not legally trained, will act as the “judge” — and also as the prosecutor! He or she can, for example, rule on his or her own objections. The hearing is conducted like a miniature trial, but without a jury and with somewhat different rules of evidence.
The defenses tend to be more technical than in court, with procedural and bureaucratic errors often the grounds for a “set-aside” of the suspension. Because of the technical nature of these hearings and the lack of an independent judge, it is inadvisable to attempt to represent yourself. Because DUI/DMV Hearings are not considered criminal in nature, public defenders are unavailable. Legal representation from a DUI law firm experienced in these matters will greatly increase the changes of your driver’s license being reinstated.
Testimony can be produced by both sides, although the hearing officer usually only produces documents, such as police reports, laboratory reports and the officer’s sworn affidavit. Because there is no Fifth Amendment right at the hearing, the attorney may choose not to have the client appear at the hearing since he/she can be called by the hearing officer as a witness.
A decision is usually not rendered until some days or even weeks after the hearing. If adverse, the decision can be appealed to the DMV. We will explain all options and risks so that you may make the right decision for your particular facts and circumstances.
Let Fiumara & Milligan Law, PC stand in your corner and fight for you!
Call us today at 707-571-8600 OR 415-492-4507 for a free case evaluation.
“The Right DUI Defense Attorney Makes All The Difference”
Please call our office today at (707) 571-8600 in our centrally located Santa Rosa office in Sonoma County or call our office in San Rafael in Marin County at (415) 492-4507 to schedule a free and confidential case evaluation.