Upon being arrested and booked for DUI, one is issued a temporary driver’s license under most circumstances. This temporary license is on pink sheet of paper and, in small print, advises the recipient that unless he or she contacts the DMV to reserve a hearing within ten days of the arrest, the license will be automatically suspended thirty days after the arrest.
Why This Article Matters: A DMV hearing for determination of whether a driver will keep or lose his or her driving privileges only involves three or four issues and knowing what those issues are helps understand the focus of the hearing.
The hearing described is a DMV hearing for a DUI. Our clients often describe this as a “kangaroo court,” “unfair” and remark that DMV offices seem to have a “you are guilty until proven innocent” approach. Other criminal defense attorneys have had similar remarks, often commenting that the atmosphere of the hearing is hostile and hearing officers seem angry that an attorney raises arguments to defend their client. Other hearing officers seem clearly resentful when they are asked to read a brief for reinstatement of a person’s driving privileges. Attorney are often met with sarcasm and smirking from DMV officers listening to arguments.
In all fairness, the DMV hearing officers certainly must hear their fair share of senseless arguments from non-lawyers. Their patience may also seem short because they do have to regularly face emotional arguments by folks who lose their driver’s license.
The hearing is an administrative procedure lasting anywhere from ten minutes to two hours, although there is no limit. Our office has had hearings last several days. The hearing officer is not a judge and is not a lawyer. Some hearing officers are friendly and professional; others are not.
The hearing takes place in a small office and the atmosphere is informal, although the hearing is recorded on a tape recorder for later use, if necessary. Sometimes the arresting officer attends the hearing, but often does not.
The three issues for most DMV hearings, when a blood alcohol content test is given and results are known, are:
- Did the arresting officer have reasonable cause to believe the arrested person had been driving a motor vehicle in violation of California Vehicle Code § 23152 or 23153? (sometimes the issue is broader to include a violation of Penal Code § 191.5 or Vehicle Code § 23140)
- Was the arrested person placed under lawful arrest?
- Was the arrested person operating a motor vehicle with a blood alcohol content of 0.08% or higher by weight, in violation of Vehicle Code § 23152?
When a driver refuses to submit to a breath, blood or urine test, the issues include whether the driver was properly admonished of the consequences to his or her driving privileges of such a refusal and whether he or she did refuse the test(s).
Our office takes these hearings very seriously, as the consequences for most people of losing their license, even for 120 days on a first time, over age 21 DUI without injuries, is significant usually for employment. We always prepare a brief addressing the factual basis for the arrest, the legal issues arising from the facts and objecting, as appropriate, to the evidence. There can be many factual errors with the police report and significant omitted facts that raise defenses for the client.
We often have clients bring their passenger to the hearing, if the passenger is capable of testifying about the circumstances of the arrest. Sometimes, although not often, we will bring an expert to the hearing to criticize the blood results from the testing by the police.
The DMV usually issues its ruling within ten days, although on more difficult cases, they have been known to take up to two months to issue a ruling. Until the ruling is issued, the driver’s temporary driver’s license remains in full force and effect.
For more information about DUI and DMV Hearings, click on the following articles:
- DMV Rejects Rising BAC Evidence and Court of Appeal Affirms DMV
- What Is a “Rising BAC” Defense to DUI?
- I Lost My DMV Hearing for My DUI- Now What?
For case summaries of selected DMV Hearings our firm has handled, click here
Greg Hill & Associates