Getting arrested for Driving under the Influence can be a scary time. After you are arrested the Police Officer generally confiscates your license and provides you with an order of suspension. This can be a very big concern for someone in this position. How will I get to work? How will I take my kids to school? How will I get my daily activities done? How will this affect my license and my insurance? A DUI lawyer can help you navigate this process. First, you must understand that when you are arrested for DUI in California, the arrest initiates two separate cases. You will have a criminal proceeding, and a DMV proceeding, also known as an Administrative Per Se hearing. These are two totally separate issues. The DMV hearing deals only with your driving privileges and is what will be discussed below.
If you are arrested for DUI, you need to contact DMV within 10 days to request a hearing be set. These 10 days include weekends and holidays, so you must do this right away. If you have an attorney they will do this for you. A hearing will be set, and you/or your attorney will request “Discovery” and a “Stay” on your license until the outcome of the hearing. The stay allows you to continue to drive pending the hearing.
The hearing is in front of a DMV hearing officer, who is hired by the Department of Motor Vehicles thus, the DMV hearing officer act as the prosecutor and the judge, which is highly detrimental to any person arrested for DUI. Most of these hearing officers have little to no legal training.
The DMV will conduct these hearings, either in person or on the phone. The hearing will be recorded and will start with the DMV putting on their case. Typically, the DMV officer will start the hearing by stating the three issues in question:
3 Issues at DMV Hearing (Only need to be proven by a preponderance of the evidence)
- Did the Peace Officer had reasonable cause to believe you were driving under the influence (usually why the officer pulled you over)?
- Were you placed under lawful arrest?
- Were you driving a motor vehicle w/.08 BAC?
The hearing officer will ask which issues we are contesting, and depending on the facts of the case we may contest all three issues.
The hearing officer will name the evidence they plan to admit during the course of the hearing, and give the opposing side an opportunity to object. We will make proper objections at that time.
Next step is the DMV/Hearing officer, will put on their evidence, which is usually the Police Officers report. They may also conduct any direct examination of any department witnesses, and cross-examine the DUI client and any defense witnesses.
At that point, we/you will then have opportunity to put on our case. You as the driver, has the right to present evidence on your behalf. You must be prepared with any documents or witnesses that you want to use, including cross examination of the police officer, which can potentially help in later criminal proceedings.
Once both sides have presented their case, and all the evidence has been placed on the record, the hearing officer will consider the case. Usually you will be informed in writing of the outcome of your case. The hearing officer may set aside the case, which means there will be no suspensions. Or if you lose the DMV hearing your license will be suspended or revoked. The suspension and/or revocation depends on your driving history. Thus, the punishment can range from harsh suspensions to revocations. If you get an experienced DUI attorney they can walk you through the process, and attempt to soften the blow. In addition, if you lose your DMV hearing and your license is suspended; you must enroll in DUI classes, pay a reinstatement fee, and provide DMV with proof of SR-22 insurance.
It is critical that you contact an experienced DUI attorney immediately if you have been arrested for a DWI or DUI.