An arrest for DUI triggers two separate and independent actions–one in the criminal court and one at the DMV. Losing either case usually results in the suspension or revocation of your driver’s license.
The DMV hearing, called an Administrative Per Se hearing or APS hearing, is held at a special DMV office called “Driver Safety”. If you were arrested in Orange County, the hearing will be held at the Driver Safety office in the City of Orange. This hearing can be either in-person or by telephone. This is a civil proceeding so you are not entitled to the same constitutional protections and burden-of-proof as in a criminal case. It’s important to be represented by a Mission Viejo DUI attorney who is experienced at handling these hearings.
The DMV Hearing Procedure
The DMV has the burden of proof at this hearing and must prove all issues by a preponderance of the evidence. These hearings are quite unconventional in that the DMV hearing officer sits as both judge and prosecutor. The DMV hearing officer is neither a judge nor a lawyer and usually has no legal training at all.
This means that the person who introduces evidence against you and argues that you should be suspended is the same person who makes the decision on whether that evidence is admissible and whether you should be suspended. Therefore, it is important that your Mission Viejo DUI lawyer is skilled and experienced at handling DMV hearings and will challenge the introduction of improper evidence and ensure that the record is preserved.
The evidence that the DMV hearing officer typically relies on consists of police reports, driving record printouts, and forensic reports. Sometimes, the police officer also testifies. Either the DMV hearing officer or your Mission Viejo DUI lawyer has the power to subpoena the arresting officer. The issues at the hearing depend on whether you took a test to determine your blood-alcohol level or you refused to take a blood or breath test.
If you took a test, then the three issues at the APS hearing are: 1) whether the police officer had reasonable belief that you were under the influence of alcohol; 2) whether the arrest was lawful; and 3) whether your blood-alcohol was over the legal limit at the time of driving.
If you refused to take a test then the DMV must also prove: 1) that you were adequately advised that a refusal would result in a suspension or revocation of your driver’s license and; 2) that what you said or did actually constitutes a refusal to take or a failure to complete the test.
Defenses At The DMV Hearing
At the DMV hearing, the DMV hearing officer will attempt to introduce documentary evidence against you, such as police reports, sworn statements, and chemical test results. Often, there is improper foundation to qualify this evidence for admission. It is important that your Mission Viejo DUI attorney object to admitting this material into evidence. Also, this evidence often constitutes hearsay and the DMV has the burden of showing an exception to the hearsay rule. Also, there are special rules governing the admission of chemical test results. A qualified Mission Viejo DUI attorney can spot these issues and make proper objections.
Title 17 Violation
Another successful defense at the DMV hearing is that the chemical test was not performed in strict accordance with the body of law governing such tests. (Title 17 of the California Code of Regulations) For example, Title 17 requires that before a police officer gives a breath test, the officer must continuously observe the person for 15 minutes before the test to make sure the person doesn’t burp. If your Mission Viejo DUI lawyer shows the officer didn’t do this, then the breath-test result must be excluded. Another example of a Title 17 violation is if the breath-testing device was not properly calibrated within a specified time frame.
In order for a police officer to legally stop you he must first witness an actual vehicle code violation. If the police officer stopped you for something that doesn’t constitute a law violation, such as weaving within your lane, then the police officer lacked probable cause to stop you in the first place. This must be raised by your Mission Viejo DUI attorney at the DMV hearing.
Evidence of driving
The DMV must have proof that you were the one driving. They must also prove when the driving occurred. The DMV must prove that the driving occurred within 3 hours of the blood or breath test in order for the test to be presumed accurate. If there is insufficient evidence that you were the driver or when the driving occurred then your Mission Viejo DUI attorney may be entitled to have the suspension set-aside.
When you consume alcohol it takes between 15 minutes and three hours for the alcohol to move from your stomach to your blood. If most of the alcohol was in your stomach at the time of driving, then your blood-alcohol level will greatly increase in the ensuing minutes and hours after your arrest. A breath or blood test taken long after driving will not disclose what your blood-alcohol level was at the time of driving. Thus, even if the test shows that your blood-alcohol was over the legal limit at the time of the test, your Mission Viejo DUI lawyer may present testimony of a forensic alcohol expert to show the DMV hearing officer that your blood-alcohol level was below the legal limit at the time of driving.
The Driver’s License Suspension
The license suspension handed down by the DMV can range from four months to four years depending on whether you have prior DUI convictions and whether you refused to take a test.
For a first-offense DUI where the driver is at least 21-years-old, the suspension is a four-month suspension. However, this can be reduced to a one-month suspension followed by a five-month period of “restricted” driving where you will be allowed to drive as long as it is “work-related”.
If this is a first-offense but it is a Refusal, then the suspension is for one-year with no possibility of getting a restricted license. If the DUI resulted in injury to a person other than you, the driver, then the suspension will be for a period of one year with no possibility of getting a restricted license. If you were under 21 years old at the time of the DUI then the resulting suspension will be for a period of one year with no restriction allowed.
If you have a prior DUI conviction within the past 10 years then the suspension will be for a period of two years with a possibility of getting a restricted license:
- After completing 12 months of an alcohol program; or
- After serving 3 months of the suspension and having your vehicle equipped with an Ignition Interlock Device (IID), which is a machine that you must blow into before your car will start.
If the second-offense DUI resulted in injury to someone other than you, the driver, then you face a three-year license revocation. However, you may be eligible for a restricted license after one year if you have completed 12 months of an alcohol program and you have an IID installed in your vehicle.
If you refused the alcohol test and you have one prior conviction then you face a two-year license revocation with no possibility of getting a restricted license.
- After completing 12 months of an alcohol program; or (if no drugs are involved); or
- After serving 6 months of the suspension and having your vehicle equipped with an Ignition Interlock Device (IID).
If the third-offense DUI resulted in injury to someone other than you, the driver, then you face a five-year license revocation. However, you may be eligible for a restricted license after one year if you have completed 12 months of an alcohol program and you have an IID installed in your vehicle.
If you refused the alcohol test and you have one prior conviction then you face a three-year license revocation with no possibility of getting a restricted license.
Free Telephonic Consultation With A Mission Viejo DUI Attorney
The Law Office of EJ Stopyro offers a free telephonic consultation. Mr. Stopyro will explain the charges you face and help you explore your options. Call us today at (949) 278-6353 for your free and completely confidential consultation.