By Dale Gribow
When arrested for a DUI your physical CDL is taken from you and you receive a pink piece of paper which is a temporary driver’s license good for 30 days. Within the paper is a warning that you and or your attorney have 10 days from the arrest date to request a DMV hearing. Failure to do so results in a suspension of your license 30 days after the arrest.
Your lawyer will request the DMV hearing and most likely request a STAY of the suspension until after the hearing. There are two different entities that are after you when you have a DUI. The Court is only one of them. The other entity is DMV which is an administrative agency and they do not follow the Rules of Evidence as a Court would or should. The DMV Hearing Officer, who does not have any legal training, is both the presiding judge and the prosecutor. Thus he rules on his own objections.
A DMV administrative per se hearing presumes a driver is per se under the influence if the DUI CHEMICAL RESULTS (PAS aka Preliminary Alcohol Screening or Blood), show the driver to be .08 or higher. Thus if you are stopped for a possible DUI, in order to save your California Driver’s License or driving privileges, you must request a DMV hearing within TEN (10) DAYS. You should also REQUEST A DMV IDENTIFICATION CARD at the same time as you will need some form of proof with a picture during this process!
The hearing is conducted like a miniature trial, but without the jury and with somewhat different rules of evidence. The defenses tend to be more “technical” than in court. In DMV procedure and bureaucratic errors are often the grounds for a “set-aside” of the DMV suspension. Testimony can be produced by both sides, although the hearing officer usually only produces documents, such as police reports, lab reports and the officers sworn affidavit.
Because there is no 5th Amendment right at the hearing we usually choose not to have our client available at the hearing. This is because the client could be called by the hearing officer as a witness and what is said can be used by the DA in court. Neither a plea to a reduced offense nor a dismissal of criminal charges is a defense to an APS suspension. The only court proceedings that will have any impact on the DMV is an acquittal or finding of innocence on the .08% charge. Similarly, a “set aside” in the DMV hearing has no effect on the criminal proceeding.
Thus the overwhelming majority of DMV cases are won by the DMV. The outcome of the Court proceedings does not necessarily affect the outcome of the DMV Hearing. The DMV hearing is an administrative per se hearing where you are “per se” guilty if your reading is .08 or higher or until you prove otherwise.
This Ad Per Se hearing is based on the implied consent law which says any person driving in California is “presumed” to impliedly consent to a chemical testing if they are suspected of Drunk Driving. It would thus seem there is a DUI exception to the Constitution. Initially there appears to be a lack of “Due Process” and the absence of a “Presumption of Innocence”. This arguably also appears to constitute “double jeopardy” in that the driver is charged with a criminal offense and punished in court and then is accused in a separate processing (DMV) and punished again with a license suspension.
The courts have used the logic that the court is criminal and DMV is administrative. In other words they argue that the license suspension is simply an “administrative sanction” and not a punishment.
After the DMV hearing the hearing officer will take the matter under submission and send you a letter, at your driver’s license address, notifying you of their decision. This avoids an argument over the phone where the lawyer would continue to argue. Thus you need to be sure DMV has your correct license. Your license is good UNTIL you receive NOTICE from DMV. That license Suspension notice can occur either after the court proceeding or after DMV hearing.
IF you have any suggestions for future article contact me 760-837-7500 or email dale@dalegribowlaw.com.
