Imagine a world where under-educated and over-egotistical, power-hungry pinheads got to determine whether you keep your driver’s license after a DUI arrest. Welcome to the DMV Administrative Per Se Hearing process.
When you are arrested for DUI, two separate processes are started, the criminal court process and the DMV driver license suspension process. The two are completely separate and one has virtually no direct effect on the other. Criminal court is concerned with your guilt or innocence; the DMV is only concerned with whether your driving privilege is suspended.
In California, after you have been arrested and booked on suspicion of DUI, the police will usually confiscate your driver’s license and replace it with a pink temporary that expires in 30 days, at which time your license is suspended.
Usually, the cops “forget” to tell you that, if you want to challenge the suspension, you must contact the DMV Driver Safety office to schedule a hearing to determine whether a suspension is warranted. If you do not call and request the hearing within 10 calendar days of the arrest, you effectively waive your right to a hearing and your license will be suspended.
If you hire a DUI lawyer right away, he or she will contact the DMV on your behalf and secure the hearing. In addition, your lawyer will also get you an extension so the license is not suspended in 30 days. Your lawyer will also request copies of all reports the DMV may use against you at the hearing.
The hearing may either be conducted in person or by telephone. Sometimes there are witnesses, other times not.
At the hearing, the DMV will present the DUI and arrest records as evidence and use them to make a decision. They don’t need to call the officer to testify; they believe that everything the officer says in his report is true and everything you say is a lie…unless it hurts you, then they believe you.
The only real issues at a DMV hearing are whether the stop & arrest were lawful, and whether you were driving with a BAC of 0.08% or higher based on whatever the officer says.
The DMV hearing officers are not lawyers; they don’t know or care about the law, the rules of evidence, or your rights; they are obedient droids programmed to look at papers and find against you. It is widely known that DMV hearing officers are subject to inquiry and discipline if they do not issue suspensions on every DUI.
I have had DMV hearings where the vehicle owner admitted to driving and that my client was the passenger, wrongfully arrested by police…and still the DMV suspended his license. I have had cases where witnesses identified another person altogether as driving, and still the DMV suspended my client’s license. I have had cases where the person was arrested from their home – nowhere near a vehicle – with no evidence of driving…and still, the DMV hearing officer found enough evidence to suspend the drivers’ license. It’s a rigged game. The only way to win is for law enforcement to make and admit to a mistake…it happens, but it’s rare.
However, for as rigged and one-sided as the DMV hearing process is, it does have some value. The process allows your lawyer an advance look at the evidence before the criminal court process begins. In some cases, it affords your lawyer the opportunity to examine or cross examine the officer under oath and trap him or her into statements that can be used to your advantage in criminal court.
Once the license is suspended, for a first DUI where a chemical test was taken, only the first 30 days are what is called a “hard suspension” meaning you absolutely cannot drive. After the 31st day, you may be eligible for a restricted license; one that permits you to drive to and from work, in furtherance of work, and to and from your DUI classes. The license will be restricted for another 5 months, after which your privilege will return to full, unrestricted status. If, at any point, there is a DUI conviction in criminal court, the suspension/restriction will extend for an additional 6 months.
The DMV driver license suspension process is tricky. That is why it’s always wise to have a professional guide you through. Most reputable DUI attorneys will include DMV representation at no extra cost.