Dealing With The DMV When Arrested For A DUI
When someone is arrested in San Diego for driving under the influence or DUI, a pink notice of suspension and a temporary driver’s license (DMV Form DS-367) are given to the arrestee upon release from custody. It has instructions to contact the DMV Driver’s Safety Office within 10 days of arrest to request your Administrative Per Se (APS) hearing. Handling the driver’s license suspension for DUI is separate and in addition to the San Diego court case regarding criminal drunk driving charges.
The DMV hearing for a DUI is an administrative proceeding regarding the suspension or revocation of your driving privilege only.
- Why does the San Diego Department of Motor Vehicles offer the right to a hearing if I am already scheduled to appear in court for the DUI charge?
- A DMV hearing request will cause an extension of the 30-day temporary driver’s license that was issued to you at the time of your arrest. Your driving privilege can remain in effect until a decision has been made by the DMV. If you have been arrested and charged with drunk driving, you have nothing to lose and everything to gain by exercising your right to the DMV hearing, especially when you have a San Diego DUI attorney acting on your behalf.
Both our state and federal constitutions provide that no person shall be deprived of property without due process of law. Due process of law entitles you to a notice of the action DMV intends to take against your driving privilege and an opportunity to be heard (hearing).
The statutory scheme for administrative California DMV license suspensions is complicated. Basically, a first offender with a blood alcohol level of .08% will have their license suspended for four months; if there is a refusal to submit to chemical testing, the suspension is for one year. For drivers under 21, “zero tolerance” laws in San Diego dictate a one-year suspension for blood alcohol levels over .01%. Second offenders with over -.08% levels receive a one-year suspension (two years if a refusal).
It is imperative that you schedule a DMV license suspension hearing, also referred to as an APS hearing within 10 days. A public defender will not assist you in this important phase because it does not directly relate to your criminal case. Many attorneys overlook this important step.
The hearing is an opportunity to examine the evidence against the accused. It is gives the defense a chance to weigh the strength of the government’s case before you head into court. Many times, the DMV hearing is more important to the driver, as the client is facing a hard suspension of their driver’s license resulting from the administrative suspension. It is crucial to understand all relevant sections of the Administrative Procedure Act.
Once you get a hearing scheduled, the goal is to fight and prevail if possible.
The hearing itself is done over the phone or in person. The most relevant code for APS hearings is Government Code Section 11513.
Gov Code §11513
- (a) Oral evidence shall be taken only on oath or affirmation
- (b) Each party shall have these rights:
- to call and examine witnesses
- to introduce exhibits
- to cross-examine opposing witnesses on any matter relevant to the issues even though that matter was not covered in the direct examination
- to impeach any witness regardless of which party first called him or her to testify
- to rebut the evidence against them. If respondent does not testify in his or her own behalf he or she may be called and examined as if under cross-examination
- The hearing need not be conducted according to technical rules relating to evidence and witnesses, except as hereinafter provided. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule, which might make improper the admission of the evidence over objection in civil actions.
- (d) Hearsay evidence may be used for the purpose of supplementing or explaining other evidence
- but over timely objection shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.
- An objection is timely if made before submission of the case or on reconsideration.
- (e) The rules of privilege shall be effective to the extent that they are otherwise required by statute to be recognized at the hearing.
- (f) The presiding officer has discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time.