Daily Archives: April 13, 2017
When a person is arrested on suspicion of driving under the influence of alcohol, their license is usually taken and the officers give the driver a “pink slip.” The pink slip is a temporary license which will allow them to drive…at least for 10 days.
The officer should inform the driver that they have 10 days to contact the DMV to schedule a hearing to try and save their driving privileges. However, in the confusion and anxiety of the DUI arrest, many people forget or ignore the instruction. The 10 days lapse and, much to the surprise of many of my clients, their license is suspended even though their court case hasn’t concluded or in some instances, hasn’t even begun.
A DUI of alcohol triggers two separate actions; a California DMV “administrative per se” (APS) action and a criminal court case.
After 10 days from the date of arrest, the DMV will automatically suspend a person’s license for four months unless the person or their attorney schedules a hearing with the DMV. If a hearing is scheduled within 10 days, the DMV will “stay” or postpone the suspension pending the outcome of the hearing.
The DMV hearing is to determine 1.) whether the officer had reasonable cause to believe the driver was driving under the influence, 2.) whether the driver was lawfully arrested, and 3.) whether the driver had a blood alcohol content of 0.08 percent or higher.
Once again, this process is separate and distinct from what happens in court.
If the driver or their attorney schedules a hearing with the DMV within the 10 days, and the suspension is “stayed,” the hearing itself presents an uphill battle. By “uphill,” I mean completely stacked against the driver.
Since the DMV is not a court, the standard of proof needed to suspend a person’s license is much lower than what is needed to convict a person or a crime. A prosecutor in a criminal case must prove beyond a reasonable doubt that the driver was either 0.08 percent blood alcohol content or “under the influence.” A DMV hearing officer must only prove more likely than not that the driver was either a 0.08 percent blood alcohol content or that they refused the chemical test.
The DMV, the same agency which is trying to sustain the suspension, is the agency which conducts the hearing. The DMV hearing officer, who is a DMV employee, conducts the hearing. The hearing officer can object to the driver’s evidence. The hearing officer can rule on his own objection. Finally, the hearing officer decides if he or she wins. And they almost always do.
Hearsay statements, which are generally excluded from court cases because the person making the statement cannot be cross examined, are admissible in DMV hearings. Most of the time, arresting officers are absent from DMV hearings. If a driver wishes to cross examine the arresting officer who wrote the report, he or she must subpoena the officer at his own cost. This includes paying for the officer’s salary for the time that they attend the hearing.
The DMV hearing officer, who, like a judge, determines the outcome of the DMV hearing is merely a DMV employee with no background in law. In fact, according to the DMV’s employment eligibility requirements, a hearing officer does not even need to have a college degree.
Although unlikely, if the DMV hearing is won by the driver, they save their license from a four-month suspension, but they still face the criminal case in court.
I won’t go into what can happen in court for a California DUI case. Just read one of many previous posts on what to expect out of the court case.
If the driver pleads to a DUI or is convicted after a trial, the court will notify the DMV of the conviction triggering yet another suspension called a “mandatory action.” The mandatory action suspension is a six-month suspension, but the driver gets credit for any time spent on the four-month DMV-triggered suspension. In other words, the driver should serve no more than six months of a suspension.
This information is only the tip of the proverbial iceberg. It only applies to a first-time DUI without aggravating circumstances such as a chemical test refusal. Clearly, the complexity of not just the court case, but the DMV action as well, is yet another reason to let an experienced DUI defense attorney do the heavy lifting.