DMV HEARING:
What Happened to My Drivers License?
When you were arrested, the Police
Officer confiscated your drivers license and issued you a Notice of Suspension.
This form is also a temporary driver's license, which allows you to
operate a motor vehicle for 30 days following your arrest. After those 30 days,
your California Driver's License is "automatically" suspended
"unless" you request a hearing disputing this
suspension with the DMV.
YOU NEED TO BE AWARE THAT
YOU HAVE ONLY 10 DAYS FROM THE DATE OF YOUR ARREST TO CONTACT THE DMV AND
REQUEST THIS HEARING. As part of our defense of your case,
we will be happy to call the DMV and arrange a APS hearing. APS stands for
a "Administrative
Per Se" Hearing. If you prevail at the hearing, then your
license is immediately returned to you by the DMV. If you lose the hearing, then
your license will remain suspended after a certain date. The DMV will notify you
by mail of the dates of the revocation. You will be eligible for reinstatement
at the end of the suspension or revocation, provided you pay a $100.00 reissue
fee to the DMV and you file proof of financial responsibility (SR-22 form). If
it is determined that there is not basis for the suspension or revocation, your
driver license will be issued or returned to you. You may also qualify for a
restricted driver license after only 30 days of suspension.
How Much Time Do I Have to Request
a Hearing?
You
"must"
request a hearing from the DMV within "10 days of arrest."
Otherwise, you may only drive for "30 days from the date the order of
suspension or revocation" was issued. Provided of course, that you
have been issued a valid California driver license that has not expired, or your
driving privilege has not suspended or revoked for some other reason. What If
I Do Nothing?
The consequences of your inaction
in requesting a DMV hearing, for a first offense, will mean that your
driver license will be suspended for 4 months. The consequences for a second
offense is an automatic one year license suspension.
Many people say so what, I'll just
drive anyway. You should be aware that in the State of California if you
are apprehended caught driving on a suspended license, in addition to being arrested
and facing automatic jail time, the car that you are driving will
be impounded and can even be sold. This is not a slap on the
wrist.
What is an Administrative Hearing?
Before the DMV orders a suspension, revocation or
restriction on a person's driving privilege, the affected person has the
right to a hearing. Now you must understand that to some degree the deck is
stacked against you, because the hearing will be held in the DMV and is
conducted by their own employees i.e. the Driver Safety Hearing Officer.
What is The Purpose of The Hearing?
From a Defendant's point of view
an A.P.S. hearing really has two functions. The first function is that it the
only opportunity you will have to show that the suspension or revocation is not
justified.
Additionally, if you request an in
person hearing, it allows us to have an informal deposition of the arresting
officer. During cross examination of the officer, we may be able to
obtain information that may be favorable to your defense of the criminal
case. It is also helpful in assisting your attorney in obtaining a preview
of the officer's testimony and evaluating the impact of the evidence. If
properly done is gives the defense a tremendous advantage.
The hearings are tape recorded and may be either in person and
telephonic. The hearing is held before a Driver Safety Hearing Officer at
an office of the DMV. At the hearing, the driver is informed of the legal
grounds for the action and the police officer will appear and present evidence.
The driver may cross-examine the officer, review and challenge the evidence of
the DMV, and to present evidence, witnesses and testimony to rebut the police
officer and try and persuade the department to either modify or rescind its
action. After the hearing you may have the tape transcribed and a
copy may be used at trial to impeach the officers testimony.
What Issues Will Be Raised at the Per Se Hearing?
The hearing will deal with the following
issues:
- Did you submit to either a blood or breath or a urine test:
-
Did the peace officer have reasonable cause to believe you were driving a
motor vehicle in violation of Vehicle Code Section 23140 (minor over 0.05%
blood alcohol level), 23152 (adult with over 0.08% blood alcohol level) or
23153 (DUI with injuries)?
- Were you placed under lawful arrest?
-
Were you driving a motor vehicle when you had 0.08% or more by weight of
alcohol in your blood?
-
If you refused or failed to complete a blood, breath test, or a
urine test: Did the peace officer have reasonable cause to believe you were
driving a motor vehicle in violation of Vehicle Code Section 23140, 23152 or
23153?
- Were you placed under lawful arrest?
-
Were you told that if you refused to submit to or failed to complete
a test of your blood, breath, or urine, your driving privilege would
be suspended for one year or revoked for two or three years?
What If I Refused to Take a Blood or Breath Test?
As a condition of your privilege
to operate a motor vehicle, you are "required by law"
to take a chemical test to determine the presence of alcohol and/or drugs
in your blood. You may not refuse to take or fail to complete a
blood or breath test if requested to do so by a peace officer. The urine test is
no longer available for routine use since January of 1999. However if the peace
officer suspects that you were operating a motor vehicle while under the
influence of drugs or a combination of drugs and alcohol, or both, then you
cannot take a blood or breath test. Be advised that if you are a
hemophiliac, or are taking certain anticoagulant medication for a
heart condition, then you do not have to take a blood test. It gets very
confusing.
What isn't confusing is the penalties. If you
were over 21 years of age at the time of arrest and you refused or failed
to complete a blood or breath test, or (if applicable) a urine test, you are
looking at an automatic one (1) year suspension. A second conviction with
a refusal within 7 years will get you an automatic two (2) year
revocation. If you are unlucky enough to collect a third offense within 7 years
you will be handed am automatic three (3) year revocation.
It's even worse if you are under
21 years of age. This is referred to as
"zero tolerance."
If you are under 21 years of age at the time of being stopped, detained
and/or arrested and you refused or failed to complete the PAS test
(Preliminary Alcohol Screening) or any other chemical test, you will receive an
automatic one (1) year suspension. An adult may lawfully refuse to take a
PAS test, but someone under 21 years of age may not. If you have a second
refusal within 7 years, you will receive a two (2) years revocation, and a third
offense will result in a three (3) year revocation.
What If I Don't Speak English Very Well?
If you or a witness require either
a sign or a foreign language interpreter, you must inform the DMV and our office
when the request for a hearing is made. Otherwise a failure to do so may result
in a delay or the DMV going forward without one.
What Happens if I Don't Show Up at the Hearing?
If you request a hearing and do not attend the hearing
and you have not retained an attorney to represent you, the DMV will
proceed with the case against you and suspend your license.
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