DO NOT TALK TO ANYONE OTHER THAN YOUR LAWYER!
PART 5: ENTERING A PLEA ON A DUI
There’s an old saying in the legal world: “. . .You win your case before the prosecutor, not the judge. . .”
What does this mean to you? The prosecutor in your DUI case must determine whether they feel they have a strong or a weak case. Prosecutors may be reluctant to take a case to trial that they don’t believe they can win. If your DUI lawyer is able to present a strong defense to the prosecutor, you have a higher likelihood of settling your case and avoiding trial.
Why Is This A Good Thing? Settling means the prosecution doesn’t get 100% of what it wants. It may mean reduced fines, a reduced charge from DUI to a “wet reckless”, community service instead of jail, an ankle monitor or Home Arrest, or maybe less time for your license to be suspended.
FIRST TIME DUI PLEA:
If the DMV in San Bernardino rules against you at the DMV hearing, which is normally the case, they suspend your driver’s license. On a first offense DUI you can apply for a restricted license from DMV after 30 days of suspension.
After you enter a court plea on a 1st Offense DUI, the Superior Court sends a Notice to DMV in Sacramento of your PLEA. The DMV in Sacramento, if it does not fall through the cracks, will then send you ANOTHER SUSPENSION using the conviction date. They are considered 2 separate matters. Thus, depending on the timing of the plea, you could face 2 different suspension periods for the same DUI. However, after the court plea, you can go to DMV, (if you have already done everything DMV required for the DMV suspension), and the DMV will re-issue a license without a new suspension period.
You do ONE 30 day suspension. The San Bernardino DMV will suspend your license for 120 days, but after 30 days of no license you can apply for a restricted license to drive to and from work and a DUI program.
After you enter a plea, the Court will send Sacramento notice and they, under another code section, will SUSPEND your license. However, if you are enrolled in a DUI class you would just pay a fine to DMV to renew your license, show proof of insurance and file the SR-22 showing you have auto insurance. They will send you back your license.
The Sacramento notice that comes after a plea/conviction extends the restriction time on your license so that it is 6 months from the date of the plea/conviction. The 6 months runs concurrent with any time so that you do not add it on but rather extend the time period. However, there is only ONE 30 Day suspension and once you go to DMV and pay the re-issuance fee and show the necessary papers they should grant you a restricted license.
1st Time DUI Plea With Blood Alcohol In Excess of .15:
If there is a court plea, along with the high BAC enhancement, the defendant is REQUIRED, pursuant to California Vehicle Code section 23538(b)(2) and Health and Safety Code section 11837(c)(2), to attend the extended 9 month 1st Offender DUI program (9 months/60 hrs.).
The defendant can get a restricted license once enrolled in the DUI classes and the restriction will be for 10 months. Pursuant to California law DMV is NOT allowed to give you back your license unless you complete the enhanced class (for being over a .15).
A .20 requires a longer 9-month class for DMV. The DMV will not tell you which class you have to take. Even if the Court does not order the 9-month class, DMV will require it to get your license back. Having said that I recently called the DMV Mandatory Action Unit, and was advised they look at the court form for the length of class. Lawyers joke that if you ask 3 different DMV employees the same question, you will get 3 different answers. That is why we suggest the 9-month class if you fall into this category.
2nd Time DUI:
On a 2nd time DUI (after July 1, 2010) your driver’s license is suspended for 2 years. However, after you have enrolled in the SB 38 classes it becomes a 1 year suspension. However, 90 days after your court conviction you may be able to hire an appellate attorney to file a Writ which will usually run $3,500 to $6,000, depending on the fight they encounter from DMV. The DMV does oppose these, but the law is poorly written so that they will often fold after awhile. Thus, you may be able to get an interlock on your car rather than not driving for 1 year. Of course, you have to pay the appropriate fees and show proof of SB 38 DUI classes and proof of insurance. With a Habitual DUI driver, DMV will possibly suspend the license for 5 years.
But I Did Not Get A Notice of Suspension:
The California Supreme Court has ruled that people are not stupid and should know when their license is VALID. Thus California does not have to give Notice of the suspension of your driver’s license. Every state is different relative to Notice requirements. In many states they do NOT have to notify the driver that their license is suspended.
After a DMV FINDING from a FIRST Time DUI hearing OR a 1st time COURT CONVICTION, the DMV suspends the DRIVER’S license for 4 months and after 30 days the driver can get a restricted license to drive if the driver can show proof of enrollment in the 1st offenders DUI’s classes, files an SR-22 and pays a reissuance fee.
After a license suspension for an out-of-state licensed DUI driver, only the driver can Request a Termination of Action from DMV to request a SET ASIDE. It is not automatic and the lawyer can no longer request it, but can represent you. DMV believes if they send the paperwork to the Driver’s out-of-state address they know the driver will get the mail in another state and not at their local lawyers office.
The basis for requesting this action is that the driver lives in another state and cannot take the DUI classes in California.
With respect to notification, neither the California’s court nor DMV will contact the out-of-state DMV.
Instead the California DMV (not the Court) will enter the California DUI conviction/finding into the NCIC system/California Driver’s Record and it is up to the other state to look it up i.e., PULL IT off the record.
The California DMV PULLS information on a regular basis but some states do not, though legally they are supposed to do so. That is how they get their tax dollars.