DMV and DUI's

Driving Under The Influence And The DMV Hearing

April 18, 2012 | The Law Offices of Susan L. Hartman

drunk caution.jpg San Diego law enforcement will issue a temporary driver’s license to a driver who is arrested for driving under the influence. That driver’s license gives you the right to continue driving for thirty days after the arrest with the same driving privileges and restrictions that you had prior to the DUI arrest. If your license was already expired, suspended, revoked, canceled, or denied, the temporary driver’s license does not allow you to drive.

If you do nothing, your driving privilege will be suspended after the thirty day period. However, if you, or your attorney, call the Department of Motor Vehicles (DMV) Driver Safety Office and request an Administrative Per Se Hearing within ten days of the drunk driving arrest, the license suspension will be stayed pending the outcome of the DMV hearing. You have a right to legal counsel at this hearing; and you do not have to be present if your attorney appears on your behalf.

After the DUI arrest, the arresting officer submits his police report and the DMV report, the DS367, to the DMV. The hearing officer, who acts as the prosecutor and the judge, has to determine by a preponderance of the evidence the following:

Did the peace officer have reasonable cause to believe you were driving a motor vehicle in violation of Section 23152, 23153, or 23154 of the California Vehicle Code?
Were you lawfully detained while on DUI probation or lawfully arrested?
Were you driving a motor vehicle when you had either:

.01% Blood Alcohol Content, or BAC, or more by weight of alcohol while on DUI probation;
.04% BAC or more by weight of alcohol while driving a commercial vehicle; or,
.08% BAC or more by weight of alcohol?

In addition, the hearing officer decides issues of refusal to submit to or a failure to complete a chemical test. In those cases, the hearing officer must find by a preponderance of the evidence:

Did the peace officer have reasonable cause to believe you were driving a motor vehicle in violation of the California Vehicle Code Sections 23152, 23153, or 23154?
Were you lawfully detained while on DUI probation, or lawfully arrested?
Were you told that your driving privilege would be suspended, or revoked for one, two, or three years if you refused to submit to, or failed to complete a chemical test?
Did you refuse to submit to, or fail to complete, a chemical test, or PAS test (if on DUI Probation) after being requested to do so by a peace officer?

After the hearing, if the DMV finds in your favor, your driving privileges will be restored. Keep in mind that if you plead guilty or are convicted later in court on the drunk driving charge, the court will impose a license suspension.

If the DMV finds against you, you are over 21, you took a required chemical test, and it’s your first DUI, you will have your license suspended for four months. However, after thirty days, you can ask for a restricted license which will allow you to drive to, from, and during the course of your employment, and to and from any DUI programs. The license restriction will continue for a period of four months, making the total time you do not have your full driving privileges to be five months.

The driver’s license suspension and restriction time is increased depending on several factors. For more information regarding your drunk driving case and the DMV and court implications, contact the exclusively DUI defense firm, The Law Offices of Susan L. Hartman.

The above blog article is by no means all-inclusive and is not legal advice. Laws may change and may not apply to your case. For the latest information or to get legal advice, speak to a DUI attorney in your area.

California DUI Arrest With Out-Of-State Driver’s License, What Happens?

February 10, 2012 | The Law Offices of Susan L. Hartman

MA License.jpg If you were arrested in California for drunk driving, and you have an out-of-state driver’s license, you are subject to the same two processes that a California resident with a California driver’s license faces: The administrative process through the Department of Motor Vehicles (DMV) and the criminal process through the courts. In addition, you may face additional penalties in your home state.

The officer in California cannot take your out-of-state license. However, they typically give you notice that your privilege to drive in California will be suspended 30 days after the arrest date.

The DMV is immediately notified of your arrest and you only have ten days from the date of arrest to request an administrative per se, or APS, hearing challenging the suspension. If you do not schedule the APS hearing within those 10 days, your driving privileges will be suspended 30 days after the arrest. If you request a hearing, the suspension is stayed or postponed pending the outcome of the hearing.

If you fail to request a hearing or you do not prevail at the hearing, your privilege to drive in California will be suspended. The suspension period will depend on how many other prior drunk driving convictions you have on your DMV record.

So your privilege to drive in California is suspended, how does that affect your right to drive elsewhere? Well, the Interstate Drivers License Compact, or DLC, requires all states that are a part of it to share driving history with other states. The idea is for each driver to have one license and one record. California is a part of the DLC, so they report DUI’s to the state where the driver is licensed, except for the four states that are not part of the compact, (Michigan, Wisconsin, Georgia, and Massachusetts).

Once your home state receives notice of the drunk driving arrest, they may take action against your license. What penalty you will have depends on your specific state. Some states take action when California suspends your license. Others wait to see if you are convicted in court. Some states only penalize the driver if the California statute is the same or similar to the driving under the influence statute in the home state.

Separate from the administrative process with the DMV, the court process also involves the possible consequence of a license suspension. If you are able to get your matter dismissed or your charges reduced, you may not have your license suspended by the court and your home state may not take action against you.

If you have been arrested for DUI in California and you have an out-of-state license, it is imperative that you seek an exclusively, DUI defense firm that can assist you in trying to limit the negative consequences in California and your home state.

The above blog article is by no means all-inclusive and is not legal advice. Laws may change and may not apply to your case. For the latest information or to get legal advice, speak to a DUI attorney in your area.

DMV Notification Of Findings And Decision, Suspension Of Driver’s License Re-Imposed, What’s Next?

January 21, 2012 | The Law Offices of Susan L. Hartman

suspended dl.jpg If you are arrested for driving under the influence in San Diego County, your license is usually taken by law enforcement and you are given a temporary driver’s license. The temporary license allows you to continue to drive with the same restrictions, classifications, and endorsements that your original California driver’s license had. Make sure you sign the document and carry it with you when you drive. The temporary license is valid for thirty days after the DUI arrest.

After the thirty days, your license is automatically suspended unless you contact the Department of Motor Vehicles, DMV, Driver Safety Office within 10 days from the date of arrest to schedule an administrative per se hearing. This hearing with be telephonic unless an in-person hearing is requested. By requesting this hearing, the DMV will put a stay on the suspension of your license until a decision has been made on your matter, unless you request otherwise. A stay means you will be able to continue to drive and often a second temporary license with an extended date will be mailed to the driver.

After the administrative per se hearing, the DMV will mail the Notification of Findings and Decision with the decision to either end the stay on the license suspension, thus beginning the suspension period*, or set aside the suspension, thus giving back the driver’s license.

If the DMV’s findings end the stay, the driver has 15 days from the effective date of the notice to request a Departmental Review of the findings. This request must be in writing, addressed to the Driver Safety Office where the hearing was conducted, and received and date stamped by the DMV by the statutory date. In addition, the request must include a fee of $120. No stay on the suspension will be issued pending review; therefore, the license is suspended as of the date noted in the notification.

Often these reviews end with a confirmation of the hearing officer’s decision. However, the matter may be sent back to the hearing officer to clean up any issues, still resulting in a license suspension. In a few instances, the DMV review board will find that the hearing officer acted outside his or her authority and set aside the suspension, returning the license to the driver.

If the DMV confirms the hearing officer’s findings and decision after the Departmental Review, the licensee may appeal that decision by filing a Writ of Mandamus with the courts. Under California Vehicle Code Section 14401, the driver has 90 days from the date the order was noticed to bring an action in the court to review the administrative agency’s decision.

This code section specifically requires all administrative appeals be final before filing a petition in the courts; however, since the license suspension is not stayed pending the Departmental Review, the driver may consider filing a writ without the review or simultaneously with the review.

*The suspension time is determined by factors including how many prior DUI’s the driver has, if a chemical test was refused, and the age of the driver.

The above summary of the DMV’s Departmental Review and writ procedures are by no means all-inclusive and is not legal advice. Laws may have changed since our last update and this article may not apply to your case. For the latest information on this, or any other DUI matter, contact an exclusively DUI defense attorney to find out more information on your individual case.

DMV’s License Suspension Set Aside, Breath Test Inaccurate

February 15, 2011 | The Law Offices of Susan L. Hartman

The California Department of Motor Vehicles (DMV) suspended Derek Brenner’s license after he gave a breath sample that read .08 percent blood alcohol concentration (BAC). However, Mr. Brenner challenged this ruling and won, according to the San Francisco Chronicle. cartoon.dmv.jpg

During the DMV Hearing, he presented a forensic toxicologist’s report that claimed the breath testing device consistently overstated blood-alcohol levels by 0.002 percent. Since the test result is only given in two decimal places, the actual result could have been has high as .089 percent, but as low as .078 percent, which is below the .08 BAC limit.

A Superior Court judge set the suspension aside. That ruling was upheld by the First District Court of Appeal in San Francisco in October 2010, and the State Supreme Court denied review of the DMV’s appeal. The court stated the DMV must show that Brenner’s blood alcohol was over the legal limit of .08 percent. Once he presented evidence that the readings were too high, “The burden shifted back to the department to prove the test was nonetheless reliable.”

This ruling opens the door to future challenges by drivers facing a license suspension due to a DUI where a breath sample was taken and the result of such test is at or near the legal limit of .08 percent.

If you have been charged with a DUI, you only have 10 days from the date of the arrest to contact the DMV to schedule a hearing to challenge the suspension of your license.

If you are over the age of 21 and this is your first DUI, or your first one within the past 10 years, the DMV will automatically suspended your license for 4 months after the 30 day temporary license expires. Once you have completed a 30 day hard suspension, you may be eligible for a 5 month restricted license once you provide the DMV with proof of insurance, proof of enrollment in an approved alcohol treatment program, and you pay all the DMV fees. This restricted license will allow you to drive to, from, and during work and to and from the alcohol treatment program.

If this is a second or subsequent DUI within the past 10 years, there is a one year license suspension and you are not eligible for the restricted license.

If you refused to take a blood alcohol test, the consequences are greater. There is a one year license suspension for the first offense; a two year revocation for the second; and, a three year revocation for three or more refusals within a ten year period. If you refused to take a BAC test, you are not eligible for a restricted license, even if it is your first offense.