DMV And APS Hearing Specifics
There is a difference between a DMV hearing and a criminal charge for drunk driving in San Diego. The DMV hearing is an administrative proceeding regarding your driving privileges and the circumstances surrounding the arrest, not the issue of whether you are innocent or guilty of a criminal act.
If the decision in your Administrative Per Se (APS) hearing is against you, your driver’s license will be suspended, but you have the right to request an administrative review of the decision by the department, and you have the right to appeal the decision to superior court.
All drivers in California consent to taking a breath or blood test when they get behind the wheel of a motor vehicle. If you are suspected of driving under the influence of alcohol, drugs or a combination of both, you will be required to take a urine test also.
Under 21 — “Baby Deuce” — Zero Tolerance for Alcohol Use: Individuals under the age of 21 must submit to a preliminary alcohol screening (PAS) or another chemical test if a police officer has reason to believe you were drinking.
- If the PAS detects any alcohol in your system, your driver’s license may be taken and suspended for one year. You will be issued a temporary license for 30 days, and you may request a DMV hearing within 10 days of your arrest.
- If the PAS detects a BAC of .05 percent, the officer may administer a breath or blood test.
- If a breath or blood test detects a BAC of .05 percent or higher, the officer will arrest you for DUI, and you will be detained until you can be released to your parents or juvenile authorities. (Vehicle Code Section 23140)
- If the officer believes you are under the influence of alcohol or drugs, you may be required to submit to a blood or urine test. The breath test does not detect the presence of drugs.
- If you refuse to submit to the PAS, breath test, blood test or urine test, your driver’s license may be suspended.
What Is A DMV/APS Hearing And What Issues Are Discussed?
The DMV hearing is not required, but it can be requested within 10 days of your arrest. It is tape-recorded, and it can be conducted by phone or in person. It is held before a driver safety hearing officer at the DMV. At the hearing, you will be able to review and challenge the evidence brought by the DMV, and to present evidence, witnesses and testimony to persuade the DMV to modify or rescind the action against you. It is critical to have a private lawyer to represent your best interests, protect your rights and build a strong case to protect your license. A public defender will not help you in this phase of the process.
Issues and questions addressed in the hearing include:
- Did the police officer have probable cause to believe you were driving under the influence?
- Was your arrest lawful?
- Were you driving when you had a BAC of .08 percent or more?
- Did you refuse to submit to or fail to complete a blood test, breath test or urine test? Were you informed of the consequences of refusal?
Your Legal Rights At A DMV Hearing
- You have the right to be represented by an attorney at your own expense.
- You have the right to review evidence, cross-examine witness testimony, and present evidence, witnesses and testimony to persuade the DMV to modify or rescind the action against you.
- You have the right to request an administrative review of the decision by the department if the DMV decision is against you, and you have the right to appeal the decision to Superior Court. However, such requests must be made within a certain time period, which is dependent on your type of hearing (stated in the notice containing the hearing decision).
What If You Are Found Not Guilty In The DUI Criminal Charge?
If you are found not guilty of the DUI charge in criminal court, the DMV will reverse a suspension or revocation if it determines the court’s decision equals an acquittal.
- If the criminal charge is reduced, you may still have issues getting your driver’s license back. The court’s decision is separate from that of the DMV’s decision, and your license may still be suspended.
- If the criminal case is dismissed, you still may have to deal with the DMV. Drivers may be entitled to a new hearing after their DUI charge was dismissed within one year of their arrest. This can also be the case if the district attorney did not file the charge due to insufficient evidence.
If you are convicted of a DUI, you can likely get a restricted license if you have a noncommercial driver’s license and you have proof you are enrolled in a DUI treatment program, proof of financial responsibility and after the mandatory 30-day suspension, pay a $125 reissue fee. Additionally, you can likely obtain a restricted driver’s license if you have a commercial driver’s license, but you were not operating a commercial vehicle when you were charged, and you pay the reissue fee of $125 after a required 30-day suspension.
- A restricted license may be requested if you need transportation to get to and from the DUI treatment program and work.
- If you were under 21 years older and were suspended under the Zero Tolerance Law, the reissue fee is $100.
- If a driver has a second DUI offense within seven years and needs to drive to and from the DUI treatment program and work, they may provide proof they are enrolled in a DUI treatment program, proof of financial responsibility and pay the reissue fee ($100) one year after the date of suspension.
- A driver with a third or subsequent DUI offense is not eligible to apply for a restricted license.
If you win the DMV hearing, the hearing officer will set aside the suspension and let you keep your license. However, this is separate from any criminal charge. The prosecutor handles the criminal case against you.
Contact The Law Offices of Mark Deniz APLC now for a free case evaluation.