An arrest for a DUI has two components. Since a DUI, or driving under the influence is a criminal offense, you will have to proceed through the criminal courts to determine your guilt or innocence and face possible criminal penalties.
The second aspect of your DUI arrest is the status of your driving privileges. A DUI arrest triggers a possible suspension or revocation of your driver’s license by the Department of Motor Vehicles (DMV) and entitles you to a civil hearing provided you make a timely request.
What Happens to Your License?
When you are arrested for a DUI, the arresting officer will take your driver’s license and give you a “Notice of Suspension” form, which is your temporary license for 30 days. It also advises you that you have 10-days to request a hearing before the DMV to challenge the suspension or revocation of your license or it will be automatically suspended when your 30-day license expires.
If you refused a breath or chemical test when arrested, your license is subject to a one year suspension for a first offender. Otherwise, the time of your license suspension will depend on if you have prior DUI-related convictions or if there are aggravating circumstances.
What is a DMV Hearing?
A DMV hearing is an administrative proceeding before a DMV hearing officer. To request a hearing, you or your attorney must contact your local DMV office where the hearing is to be held within 10-days after being issued your Notice of Suspension. These hearings are not held at the courthouse and may be conducted at a DMV office or hearing room or over the phone in some cases. If you retain an attorney to represent you, he or she may attend for you without your appearance.
Because this is a civil proceeding, you are not entitled to have a court-appointed attorney if you are indigent or low-income. You will have to pay for your own lawyer and you should do so before the 10-day period after your arrest expires.
The hearing is similar to a trial except that there is no jury or judge. The burden of proof is not the criminal standard of beyond a reasonable doubt so that you can be found to have had a blood alcohol content (BAC) of at least 0.08 percent or that you unreasonably or willfully refused to take a BAC test by a lesser standard of proof.
Just like a trial, your attorney can subpoena records and witnesses to appear on your behalf, present expert testimony regarding the breath or chemical test that you took and cross-examine any witnesses who are testifying against you. You may also testify if you wish but you should consult with your attorney regarding this.
What Must be Proved at a DMV Hearing?
There are a number of issues that must be proved before your driving privileges may be suspended:
- Did the officer have probable cause to stop your vehicle?
- Did the office have probable cause to believe you were under the influence of alcohol or a drug?
- Were you driving while having a BAC of at least 0.08 percent?
- Were you properly advised by the police officer that if you refused testing, your license would be suspended for one year or revoked for 2 or 3 years?
- If you refused testing, was your refusal willful?
DUI Defenses at a DMV Hearing
There are a variety of offenses available to you at a DMV hearing depending on the circumstances of your case, including the following:
- Lack of Proof That You Were Driving
If someone calls the police and reports your car license plate and an officer appears at your door, it is possible that you may not be found guilty of DUI if you refuse to answer any questions about who was driving.
Also, it is likely that you consumed alcoholic beverages after you drove and returned home. No one can prove that you consumed any alcohol just before you drove or that your BAC was over the legal limit while you were driving.
- Unlawful DUI Checkpoint
DUI checkpoints must adhere to carefully prescribed rules and protocol since they are a an invasion of your privacy and right to be free from unreasonable searches and seizures. If certain rules were not followed, your arrest should be deemed unlawful.
- Lack of Probable Cause to Stop You
Evidence of racial profiling or that you were detained or stopped for some reason other than that you violated a traffic law may be illegal.
- Defective or Malfunctioning Breath Testing Equipment
Your attorney can present evidence that the breath testing instrument was not calibrated correctly, was not maintained or had a history of malfunctioning or of containing faulty parts.
Also, if you have a particular medical condition, your lawyer might be able to show that it could have affected the test result in such a manner as to render it not credible or unreliable.
- Failure to Properly Advise You
An officer must follow certain instructions or advice to you regarding testing and tell you that a refusal will result in your license being suspended. If the warnings are not given properly, you could win your hearing.
- You Did Not Willfully Refuse a Test
If you had a medical condition where you were unable to provide a proper breath sample and no alternative was offered, or if your demeanor or questions were mistakenly interpreted by the officer as a refusal, the DMV hearing officer could rule that your refusal was not willful and set aside the action.
What Happens if your DUI Case is Dismissed or a Not Guilty Verdict is Returned?
If you are successful at a trial and either the judge or jury finds you not guilty, the DMV may reissue your driver’s license or you can request another hearing. You are not entitled to reissuance of your license if you plead to a lesser charge. If your case was dismissed, you may request another hearing before the DMV.
Call the Law Offices of Ramiro J. Lluis
Facing a DUI and possible suspension of your driver’s license can seriously impact your life, cost you thousands of dollars in increased insurance premiums and force you in some cases to install an ignition interlock system on your vehicle. You need an attorney who has successfully handled DMV or license suspension hearings as well as handling criminal DUI charges to represent you.
Call the Law Offices of Ramiro J. Lluis today for a free, confidential initial consultation and case evaluation at (213) 687-4412.
