Should you be arrested in San Jose, California for driving under the influence of alcohol or drugs, you risk facing two legal engagements. You will face criminal charges in the justice system and a DMV administrative hearing. Charges in a court of law may send you to jail or incur a hefty fine. On the other hand, a DMV hearing will determine whether you will retain your driving license. Unlike the court system, a DMV hearing cannot fine or send you to prison, but you risk losing your license depending on your case.
However, the process can be a thorn in your flesh, especially if you are a first time offender. Think of the harm of losing your license for several months, yet it is your first time on the wrong side of the law. Luckily for California-based first-time offenders since 2019, they can have some breathing space; they can keep driving as long as they install an ignition interlock device (IID) for an agreed timeframe. The period could be months or even years.
An IID is a breathalyzer that locks your ignition if it detects any alcohol traces in the car. First-time offenders in California are required to keep installed for up to four months, while habitual DUI offenders will have it for between one and two years. The penalties for DUI cases depend on the number of times an offender has been arrested for the same offense.
What is a DMV Hearing?
A DMV hearing is an administrative hearing, including DUI offenders and the DMV officials held in DMV offices. The hearing entails determining whether a driver arrested due to driving under the influence of drugs or alcohol will have their license suspended or not. If you are arrested for such an offense in California, the arresting officer confiscates your license and presents you with a Notice of Suspension. The notice serves as your new driver’s license for the next 30 days as you wait to get a hearing.
However, to prevent your license from suspension, you have to make a DMV hearing request in the next ten days after your license's confiscation. If you do not request a hearing, your license will be suspended after 30 days. After the whole process, you can only get your license back after meeting the following conditions:
- Install an ignition interlock device
- Enroll in the state’s DUI School
- Part with a $ 125 reinstatement fee
If you request a hearing before the ten-day allowance is over, your license's suspension will be delayed until your case is heard and determined accordingly. A win at the hearing ensures you get back your license while a loss means losing it for some time.
What are your Rights Walking into a DMV Hearing?
You can draw comfort from the fact that DMV hearings in California are way less grueling than typical court trials. Even better, the presiding officer does not have to be well acquainted with matters of the law. With a good attorney, there are lots of loopholes to get your license back.
Moreover, with such a hearing, the amount of evidence needed to render you guilty can be easily satisfied, unlike in a court trial. A DMV hearing further takes place remotely on the phone or in a less crowded office; hence you have no pressure or discomfort.
Some of the rights you have walking into a DMV hearing include the following:
- Right of representation; you have a right to get representation by your preferred lawyer but at your own expense. However, unlike in the justice system, the office cannot assign you a lawyer even if you cannot afford one.
- The right to review or challenge the presented evidence, including the arresting officer's report.
- Cross-examine the witnesses through your attorney
- Give your testimony
- Subpoena witnesses
How to Schedule Your DUI DMV Hearing
If you are a California resident, you have to contact your local DMV office to schedule a hearing. However, the liberty of scheduling for a hearing expires ten days after your license is confiscated during a DUI arrest. If you do not request and schedule within the ten days, you lose the right to a hearing.
If you choose to be represented by your attorney, you do not have to show up at the hearing unless you intend to testify. Your lawyer can request and schedule a hearing on your behalf, which does not have to be physical; it can be conducted over the phone.
How to Win Your DUI DMV Hearing
During your hearing, there are some issues that the presiding officer has to put into consideration. They include:
- Were you arrested under a lawful cause?
- Was there a probable cause to determine the reason for your arrest?
- The concentration of alcohol in your blood; was it 0.08% or greater?
If by any means, you resisted arrest by way of refusing to submit to an alcohol or drug test, the scope of the presiding officer’s considerations shifts to the following questions:
- Were you informed by the arresting officer that a refusal to submit to the necessary tests warrants your license suspension for up to one year or a getting it revoked for up to three years?
- Did you consciously refuse to submit to a test when asked?
After the hearing, the presiding officer will suspend your license based on the presented evidence or reverse the suspension on account of your defense. Some of the defense avenues that your attorney could explore to get your license back could include the following claims:
- You were not the driver — If the arresting officer did not personally get you red-handed on the driving wheel or there is no witness to testify against you in this regard, then you should get back your license. For instance, in a case where after realizing you are not legally suitable to drive after a few drinks and opt to take a nap in your car, but an officer drops by and arrests you, then your attorney can explore this avenue. A case does not stand if the officer did not get you driving drunk on the road.
- Your arrest took place at an illegal checkpoint — If you are arrested at a DUI checkpoint that does not conform to the state’s legal standards in relation to DUI law, then the arrest is illegal. No matter how guilty you are, the unlawful arrest is enough to override any DUI charge. A resourceful legal entity will be able to determine the legality of your arrest and use it accordingly.
- No legitimate probable cause to arrest or detain you — If the arresting officer had no probable cause to arrest or detain you, then your lawyer could explore this road to get you on the clear. Some of the reasons your attorney could use to argue your case based on this loophole could include:
Racial profiling; you were in line with all traffic laws, but the officer pulled your over on account of your race and not a breach of regulations.
You were involved in an accident; then, you were interviewed by the arresting officer after you had already gotten home. You could have started drinking at home.
- The arresting officer ignored the expected 15-minutes observation time frame — California provides a code of regulation under which drugs and alcohol tests are collected, stored, analyzed, and interpreted. If these codes are not adhered to, then a DUI arrest is questionable. Among the code's regulations is the fact that an arresting officer has to observe a suspected offender for more than15 minutes or more before initiating a breath test. This ensures that the offender does not compromise the test results by vomiting, eating, drinking, smoking, or any action that may alter the test.
Failure to closely observe a suspect may compromise the results; the alcohol levels may read less than 0,08% during the arrest and guarantee an offender a win at the hearing.
- Faulty testing instruments — If your lawyer can prove that the testing instruments used on you were poorly calibrated or faulty in any way, then you stand a chance of walking away with your license. The regulation codes dictate that the breath testing equipment should be checked after 150 blows or every ten days.
- Physiological explanations to positive tests — There are numerous physiological conditions that can contribute to high levels of alcohol in the body. Such include:
- Taking a low carbohydrate diet with high protein content can contribute to high alcohol levels.
- Medical conditions such as acidic reflux, GERD, and heartburn
- Traces of mouth alcohol residuals
If you can prove that you suffered the above conditions during your arrest and testing, you will likely walk away with your driving license.
- The arresting officer did not communicate or advise you of the repercussions of not submitting to a test — In case you are arrested for DUI, the officer should inform you accordingly about the repercussions of refusing to submit to a DUI test. The officer is expected to have this admonition in writing so they can read it to you clearly with the right interpretation.
- You were compliant for the test — You can also claim your innocence if you did not refuse to comply; you agreed to blow for the breath test or offered to do a chemical test, but other circumstances contributed to bad blood with the officer. You could have questioned the procedure of the tests, and the officer misinterpreted that for noncompliance. Your attorney could argue your case on account of such and convince the presiding officer accordingly.
- Fatal flaws on the arresting officer’s report or paperwork — Mistakes on the report, such as missing signatures, wrong dates, or inaccurate test results, provide a perfect avenue for your lawyer to argue your case. Such errors, alongside the officer's inability to give an independent account of the events leading to your arrest, could be priceless towards getting your license back.
How is Your DMV Hearing Related to Your DUI Court Trial?
Your DUI DMV hearing does not focus on the criminal aspect of your case. This emphasizes on the situation of your arrest and if your driving license can be suspended.
However, both proceedings are much intertwined. Evidence and testimonies used during the DMV hearing are credible for your court trial and could be used to your advantage or against you. If, for instance, the justice system declares you innocent under the Vehicle Code 23152(b), California's law countering driving under alcohol concentration of above 0.08%, then the DMV hearing cannot go against you. You will get your license back. Nevertheless, a guilty plea, a dismissal, or a no-contest plea may not alter the outcome of a DMV hearing.
The differences between the two proceedings can be established between the following lines:
- A DUI trial is more complicated and comprehensive; your attorney has more legal avenues to explore to get you free.
- While a DMV hearing is presided over by a DMV hearing officer, a DUI case is tried by an experienced panel of 12 jurors.
Consequently, as an ordinary citizen navigating the legal dictates of the two proceedings can be quite a hustle hence the need to get the representation of an experienced legal entity. The right California DMV attorney comes in handy to navigate the legal maneuvers and ensure you get your license back.
The Aftermath of Winning a DUI DMV Hearing
Winning a DMV hearing means you can retain your driving license. Even better, this means you can argue your case better in the California justice system. If there are exploitable flaws in your DUI criminal case exposed in your DMV case, the prosecutor may drop the charges.
However, this does not mean an automatic win in the DUI criminal case. The prosecutor could be wielding strong evidence against you enough to get you a fine or even a jail term. Moreover, should you be found guilty of DUI, the judge can revoke or suspend your license. This stresses the importance of having the best California DUI attorney on your side.
The Aftermath of Losing a DUI DMV Hearing
If in an unfortunate case, you lose in the hearing, it does not stipulate a clear loss in the DUI case trial. Your attorney could still explore the allowed broad avenues to get you a reduced plea or a win altogether. You can still retain your license on account of your plea even after losing in the DMV hearing in some instances.
Nevertheless, it should stick in your mind that a loss in a DMV hearing means suspension or revocation of your license. How long the suspension or revocation will take effect depends on whether you are a first-time offender of a habitual one.
Suspension of Driver’s License for First-Time DUI Offenders
If you are a first-time offender, the law might go easy on you. Should you lose your DMV hearing, you automatically lose your license for six to ten months. However, after one month, you can seek to have your suspended license converted into a limited license which will allow you to drive to a relevant DUI School or workplace. Such an arrangement, however, entails:
- Enrollment in DUI School
- Submitting a credible SR-22 insurance document
- Paying the expected $ 125 reinstatement fine
If your case caused an unwarranted injury to another individual or you refused to submit to the routine tests, the suspension is set at one year if you are a first-timer. The restricted partial license arrangement is further off the table for such an offender.
License Suspension for Second-Time DUI Offenders
If you are in a DMV hearing for a second time within a ten-year time frame, the license suspension is up to two years. However, you may apply for a restricted suspension after one year. Even better, you might be eligible for this arrangement after 90 days if your DUI involved alcohol only and no harm befell the third party on account of your offense. This comes with the following conditions:
- Enrollment in DUI School for 18 to 30 months
- Install an ignition interlock device for an agreed period
If your offense came along with third-party injuries, the suspension might be up to three years with a restricted license arrangement after one year.
License Suspension for Third-Time DUI Offenders
If you fail in a DMV hearing, and it is your third time on the wrong side of the law, you will lose your license for about three years. A restricted suspension is allowed after one year if you adhere to the expected conditions similar to those of a second-time offender. You might not be eligible for this arrangement if you willingly failed to submit to a test, or your case caused a harm-inducing accident.
License Suspension for Fourth-Time DUI Offenders
If you face a DMV presiding officer for a fourth time in ten years, a loss in the hearing means losing your license for up to four years. Even worse, this translates to a felony DUI in the justice system. However, you still can seek a restricted suspension after one year, provided you adhere to the set conditions similar to those of other offenders.
The above penalties may differ for offenders with commercial licenses, hence the need to have a knowledgeable and experienced DMV attorney.
Underage DUI Cases
A DMV hearing dictates differ for drivers under the age of 21 in California. If you are found with alcohol levels above 0.01%, you breach the California zero-tolerance law, an automatic civil offense. If you lose in such a hearing, you will get a suspension of about a year. Should you be driving without a license at the time of your arrest, the privilege to acquire one will be postponed for one year.
Moreover, failure to commit for a test means a suspension of three years.
The above penalties also apply to drivers from other states. Should you breach DUI laws, you will face the same repercussions as the residents. You will acquire the services of a California attorney and then schedule a DMV hearing in the state. Your lawyer can show up for the hearing on your behalf.
If you lose the hearing, you will be punished just like the residents, and this could apply in other states such as Tennesse, Wisconsin, Georgia, Michigan, and Massachusetts. These states are run by the same interstate Drivers License Compact (DLC). This means a breach of DUI laws in one state warrants punishment in other states. Consequently, if you are arrested on such charges in California, your state of residence will be notified, and you will be punished accordingly, which could differ with each state.
Appealing DUI DMV Hearing Loss
If you are convinced that the DMV hearing officer got it wrong and made the wrong decision, you can appeal. You can do this by filing for directly with the California Superior Court or ask the DMV to carry out a departmental review of your case.
The appeal procedure and the time frame are usually attached to the document notifying you about the DMV's decision about your case after a hearing. You will further have to incur a $129 fee for a DMV departmental review.
Filing directly to the Superior Court entails going through the writ of mandate. This means requesting the court to review DMV’s decision and reverse it accordingly and filing for such costs $ 2500 to $ 3500.
If the California Superior Court does not grant you the justice you feel you deserve; you will proceed to the State’s Court of Appeals. The appeals are complex engagements that demand the highest legal experience. As such, you should consider seeking the best California DMV legal representation. Moreover, they are bound to be very expensive hence the need to prepare accordingly.
Get a San Jose DUI DMV Attorney Near Me
Winning a DUI DMV can be a matter of life and death to you; your job and livelihood could be at risk. Consequently, getting the right legal representation is half a victory. At San Jose Criminal Attorney Law Firm, we got you covered! Our experienced team of attorneys is just the proper means of securing your precious license. Contact us at 408-622-0204 to get a free consultation.