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DMV Information, Your Rights Following A DUI Arrest

There is a dirty little secret in regards to DUI and the DMV hopes you never find out about it. The secret is you can stop the "automatic" suspension of your license if you blew a .08 or higher, but you must exercise your rights and DEMAND a formal APS hearing and further demand a STAY of the action. The state hopes you do not request a hearing because hearings cost the state money.

California has a dual system of justice when it comes to a driving under the influence arrest. The first is a DMV administrative tribunal to challenge the loss of license, and the second is the criminal court for determination of any punishment for drunk driving involving potential jail time.

BE AWARE: a DUI prosecution involves two entirely different and distinct actions. One is the DMV APS suspension done thru the DMV. The other is the criminal prosecution for DUI done thru the Court. You must understand the two are independent from each other and must be handled seperately, the DMV action is of most importance early on. YOU CANNOT WAIT UNTIL YOUR COURT DATE IF YOU WANT TO SAVE YOUR LICENSE.

When a California driver is arrested the law requires he or she be given a choice of a breath or blood test. If (1) a breath test indicates .08% blood-alcohol 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 driver's license is immediately confiscated by the police (unless it is an out-of-state license) and he is issued a pink sheet of paper. 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 laws and procedures involved.

After a DUI arrest the individual has ten days within which to request an administrative hearing through the Drivers Safety Office of the Department of Motor Vehicles to contest the suspension. This is called the Administrative Per Se Suspension ("APS"). 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. If an attorney has not been retained within the 10-day window, the individual should try to contact the local Drivers Safety Office himself. In Southern California these offices are located in El Segundo, City of Commerce, Irvine, San Bernardino and San Diego. In Kern County the offices are located in Fresno and Bakersfield.

The hearing ideally should be set up through an attorney familiar with APS matters. 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, but due to the stay often far later than 30 days.

If this is a first offense within 10 years, the license will be suspended for a minimum of 4 months by the DMV. This can be reduced to 1 month followed by 5 months of work restriction 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 2nd offense within 10 years carries a 1-year suspension, 2 years if a refusal, again no restriction is possible. If under 21 a 1 year suspension may result.

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" 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 is suspected of drunk driving. It would certainly seem, however, that the procedure violates the U.S. Constitution. First, there appears to be a presumption of guilt and lack of due process: the officer is judge, jury and executioner. Second, it would seem to constitute "double jeopardy": the individual is being charged with a criminal offense and punished (including a license restriction) in court -- and then is accused in a separate proceeding and punished again with a license suspension. The courts, however, have used strained logic in concluding that one is criminal and the other administrative -- a DMV license suspension is simply an "administrative sanction", not a "punishment"!

The 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 own objections. The hearing is conducted like a miniature trial, but without 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. And because they are not criminal in nature, public defenders are unavailable. A DMV attorney on your side can at the very least level the playing field.

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 or may not choose to have the client at the hearing since he 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 in Sacramento and/or to the courts by filing a "writ".

Even though these hearings may appear to be futile for the accused, our office routinely is able to dwell on the "technicalities" in the case to secure a win for the client. For example: in a recent case we were able to obtain a set aside of our client's suspension in spite of a breath result of nearly 4 times the legal limit!

Negligent Operator Drivers License Suspension (Point Suspensions)

Once you are licensed to drive in California, If you start accumulating too many tickets for moving violations, which count as 1 or 2 points, you may be considered a negligent operator and lose your driver license.
Most driving offenses, such as hit and run, reckless driving, and driving under the influence (DUI), are designated as 2 points and will remain on your record for up to 10 years from the violation date. Most other offenses are designated as 1 point and will remain on your record for 3 years from the violation date. Any "at fault" accident is normally counted as 1 point.

You will be considered a negligent operator if your driving record shows any of the following point count totals:

  • 4 points in 12 months, or
  • 6 points in 24 months, or
  • 8 points in 36 months

These point limits apply if you are an adult. If you are under 18 however the law is different. Vehicle Code 12810 provides a teen driver will lose his or her privilege to drive if the teen gets 2 points within a 12 month period. Thus, one accident could result in a suspension of the driver's license. A DMV hearing with an attorneys help could avoid the suspension.

At the Law Office of Matthew J. Ruff we recognize that you may have a critical need to drive and can request a hearing for you and represent you at the DMV. Recently, we were successful in saving a client's license even though he had more than 5 points in 12 months. Call us now to discuss your specific case.

Driver License Suspensions for Medical/Drug Reasons

The DMV may restrict, suspend or revoke the driver license of a driver for a medical reason such as: a serious memory disorder, diabetes mellitus or lapses of consciousness. If this happens, you must request a hearing immediately. Matthew J. Ruff is quite successful at returning our client's driver license. We recognize your need to drive and can help you. We will request a hearing for you and represent you at the DMV.

In certain cases, for example when a person is arrested for DUI with marijuana in their system, the DMV will attempt to take their license under the belief they have a drug use problem, a DMV attorney is advisable in these cases to defend the action.

Physicians are also required to report certain physical and mental conditions, the Health and Safety Code requires physicians and surgeons to report in writing to the local health officer, the name, birth date, and address of every patient at least 14 years of age or older who is diagnosed as having a disorder characterized by lapses of consciousness or dementia (mental disorders) or other conditions such as Alzheimer's.

Although not required by law, any other condition may be reported by physicians when they believe a patient cannot drive safely because of a medical condition.

If a doctor has notified the DMV of your medical condition, you may be required to have a hearing and submit a Driver Medical Evaluation (DME) form. This form is requested when medical information is needed to evaluate a driver's medical condition in relationship to safe driving. Primarily used by DMV Driver Safety, this five-page document assists hearing officers to evaluate the physical and/or mental condition(s) of the driver and to determine what action, if any, to take with regard to the driving privilege.

The first page of the Driver Medical Evaluation (DME) form requires the driver to complete a brief health history and to certify under penalty of perjury that the information is true and complete. The remainder of the form requires the driver's physician to provide information on the driver's diagnosis, treatment, and level of functional impairment, if any. Specific sections address lapses of consciousness, diabetes, Alzheimer's, dementia and cognitive impairments, as they pose a higher degree of potential traffic safety risk.
The DME must be signed by you and your physician, prior to being evaluated by Driver Safety. The form is available through our firm. Our knowledge of these hearings has resulted in success for our clients in keeping their licenses.

Your Rights Concerning Any DMV Hearing

If your license is ever suspended or revoked by the Department of Motor Vehicles (DMV), you may be able to request an administrative hearing with Driver Safety. Driver Safety is the branch within the DMV that holds hearings to determine whether an action taken against a person's driving privilege is justified. Upon receiving notice that the DMV intends to curtail your driving privilege, you have only 10 days if you were personally notified of the action, or 14 days from the date a notice was mailed to you to contact Driver Safety and request a hearing. These timeframes are critically important. Failure to contact Driver Safety within these timeframes could result in the loss of your right to a hearing.

Driver Safety holds hearings on many different issues; however, each hearing is similar in that it affords drivers an opportunity to present reasons why they ought to retain their driver licenses. Each hearing is held according to legal guidelines (Administrative Procedures Act (APA); Evidence Code) that help ensure that neither the DMV nor the driver has an unfair advantage over the other.

It is the hearing officer's job to fairly record, analyze, and weigh the facts of each case against the issues involved before coming to a decision regarding the driver license. The hearing officer may end or set aside the proposed DMV sanction, allowing you to regain the use of your license; he or she may modify the license by placing various restrictions on its use; or the hearing officer may uphold the original suspension or revocation of the driving privilege. If the hearing officer makes a decision that you feel is unfair or unjust, you may appeal the decision with a departmental, and ultimately a court, review.

You have certain legal rights during an administrative hearing, and the hearing officer will ask you if you understand these rights before continuing with the hearing. Please be sure to have the hearing officer explain your legal rights if you don't know or understand them. Some of these legal rights include your right to:

  • Be represented by an attorney or other representative at your own expense. (An attorney is not required; it is only an option should you desire one.)
  • Testify on your own behalf.
  • Review the DMV's evidence and cross-examine the testimony of any witness offered by the department.
    In many instances, the DMV's case rests solely on written documentation, such as the Priority Reexamination Notice or medical information. If you wish to question the information contained in the DMV's evidence, you will be responsible for subpoenaing the person who prepared that document. Subpoenas are available through any Driver Safety office; however, someone other than you must serve the subpoena(s).
  • Present your own evidence and/or relevant witnesses on your behalf.
    Any evidence presented must be relevant to your case and becomes part of the official record maintained by the DMV. No evidence submitted will be returned. Evidence might be copies of medical evaluations, vision examinations, accident reports, photographs, or other documents that support your claim to keep your license.
  • Appeal any adverse decision.
    You may contest the DMV's findings through the DMV's departmental review process or through the Superior Court.

If you have additional questions call DMV Attorney Matthew Ruff toll free at (877) 213-4453

 

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