The ability to drive in Orange County is a privilege that many of us may take for granted. The majority of us do not realize how much we rely on the ability to drive until it is taken away from us. If you have been arrested for DUI recently, you may have a few questions that you want answers to: How will I get to work? How will I pick up my children from school? How will I go to my doctor’s appointments? What form of transportation will I need to get around on a daily basis? Also, you may not be knowledgeable of the post DUI arrest process. It is important that you acknowledge that you will be required to participate in two different legal proceedings: the criminal process of a DUI and the DMV hearing regarding your DUI. This article will provide you with information regarding the DUI hearing process.
Following a DUI arrest, the arresting officer should have confiscated your California driver’s license, and provided you with a pink admin pro se license, which will serve as your temporary license. After your arrest, you will have a 10-day window to call the DMV and schedule a hearing. Most individuals do not consider the DMV hearing seriously and fail to schedule one. However, the DMV hearing is a serious occasion for numerous reasons. First, if you fail to request a hearing within the 10-day period, you will essentially waive your right to the hearing and your license will be suspended after the expiration of your admin pro se license. If you do request a hearing, your driver’s license suspension will be postponed until after the DMV hearing has concluded. Additionally, the DMV hearing provides your attorney the opportunity to question the arresting officers, in order to obtain information that may later help you in the criminal stage of your case. Thus, we highly encourage you to consult with an attorney as soon as you can, so that you do not waive your right to have a DMV hearing.
You are allowed to have an attorney present at your DMV hearing. If you are debating hiring a private attorney, we encourage you to allow one of our attorneys reach out to the DMV and schedule the hearing for you. Our attorneys will also request that your suspension is set aside, along with any information or documents that are required to conduct the hearing. In your free consultation with our firm, we will discuss your case and decide whether you would be better of having the hearing over the phone or in person. Either can have its own advantages, and our attorneys can help inform you on the type of hearing that would be best for you. Our law firm has administrative law specialists that specialize on solely handling DMV hearings. If you have an occupation that requires you to have driving privileges, we highly recommend that you have a DMV hearing specialist handle your hearing. Call the Orange County DUI Attorney Law Firm at 949-377-2280 to schedule your initial consultation.
Issues Addressed by the DMV
The DMV hearing is known as an administrative hearing that gives an accused person the right to present evidence and challenge the case against him or her. At this hearing, your guilt or innocence will not be determined. Those issues will be determined at the criminal stage of your case. The DMV will decide the following during your hearing:
- If the arresting officer had reasonable suspicion to think that the individual operating the car was doing so under the influence of alcohol and/ or drugs?
- Whether the individual operating the motor vehicle was arrested for DUI in a lawful way?
- Was the driver informed that refusal of the breath or blood test would result in the suspension of his or her license for a certain period of time?
- Note: In most instances refusing to take a blood or breath test results in a 1 year suspension of an individual’s driver’s license but could be longer in certain cases.
- Did the driver refuse to submit to, and complete the blood or breath test that was administered? Sometimes, an individual experiences complications that prohibit the individual to give a sufficient breath sample. In this situation, even though they agree to submit to the test, the individual is unable to complete it.
What if I prevail at the DMV Hearing?
If the administrative law judge determines to set aside your DMV license suspension, you will be allowed to retain your driving privileges. Since the DMV hearing process is completely different than the criminal process of your case, if you prevail at the DMV hearing, it does not carry over to the criminal proceeding. However, if you are convicted during the criminal stage of your case, your driver’s license will be suspended. Even so, prevailing at the DMV hearing can have various benefits that can be used during the negotiations in the criminal stage of your case. Prevailing at the DMV hearing can help your attorney in any negotiations that occur, which can increase your chances of the charges against you being reduced to a wet or dry reckless. Moreover, prevailing in the hearing can show that the case against you is weak and that you can prevail at your criminal trial.
What if I do not prevail at the DMV Hearing?
If you lose at the DMV hearing, the judge will issue a notice of facts and findings that will state the date your driver’s license suspension will be reinstated. There are numerous consequences for a license suspension imposed by the DMV based on the type of license you carry, as well as what number DUI offense you are charged with. For more in depth information on suspension periods, go to the DMV dropdown box in the home page of this site. Even if you do not prevail at your DMV hearing, it does not mean that you cannot prevail during your criminal stage of your case. If you prevail during the criminal proceedings, you may apply to have the DMV imposed license suspension set aside.
How to Prevail at the DMV Hearing
Your attorney can assert various arguments during your DMV hearing. In prior cases, we have been successful in asserting the following arguments:
- You were not actually in control of the motor vehicle. Did the arresting officer, or anyone witness you being physically in control of a vehicle? Many cases involve a person pulling over to rest or sleep because he or she felt it was unsafe to keep driving. While the individual is resting in the car, a police officer approaches the vehicle and asks the individual to exit the vehicle. Thereafter, the officer claims to smell alcohol and commences the DUI arrest procedures. This situation is a perfect example where an argument that you were not physically in control of the motor vehicle can be asserted.
- You were arrested at an unlawful DUI checkpoint. This argument requires careful discussion with an attorney. If the DUI arrest occurred during the conduction of a California DUI checkpoint, it needed to adhere to specific legal guidelines to be lawful. If the checkpoint is determined to be unlawful, the charges against you may be dismissed even if you were driving under the influence
- Not enough showing of probable cause to warrant a traffic stop or arrest. If the arresting officer did not provide enough facts to show that you were driving under the influence, then the DMV may set aside your suspension. The attorneys at the Orange County DUI Attorney Law Firm will thoroughly review every piece of evidence to determine if the officer provided enough facts to show probable cause. For example, if at the time the arresting officer pulled you over, you were not violating any traffic laws, there can be no showing of probable cause. The reason you were stopped could have been that you were driving late on a Saturday night and not because you violated traffic laws, which is not enough of a showing to warrant the traffic stop.
- Officer did not observe you for an entire 15-minute period. Title 17 of the California Code mandates that the arresting officer observe the individual taking the breath test for 15 minutes prior to administering and collecting the breath sample. This guideline is imposed to make sure the individual does not eat, throw up, drink, or smoke anything that may affect the validity of the test results.
- The testing instrument was not working properly. Title 17 also requires that the instruments used to collect breath samples are maintained and operated in compliance with specific guidelines. The instruments are required to undergo maintenance every 10 days or 150 uses, whichever occurs first. If your attorney can prove that the instrument was improperly maintained, then the BAC results provided by the machine can be inaccurate.
- The false positive readings were attributed to other factors. There are certain diets that can produce false positive results. For example, a high protein/ low carb diet can lead to inaccurate results. There are also cases where certain medical conditions like GERD, acid reflux, and even heartburn that can produce alcohol residue in the esophagus. This alcohol residue can cause a false positive test result. If you have any of these conditions it is important that you disclose that information to your attorney.
- The officer did not inform you of your right to refusal. If an officer asks you to take a blood or breath test, it is required that the officer inform you of your rights, and that if you refuse to take the test your driving privileges will be automatically suspended for a period of 1 year. If the officer fails to inform you of this information, the DMV administrative judge may rule in favor of you. For this reason, it is important to consult with your attorney about this issue because in some cases, arresting officers do not follow proper procedure.
- You did not refuse the test, but you could not complete the test. You may have subjected to the breath test but could not provide a sufficient sample. The officer may take it as a refusal to take the breath test instead of requesting that you submit to a blood test. Often, the officer administering the test may testify that you were huffing on the breathalyzer, when the actual problem was that you did not have the lung capacity to provide a sufficient blow. If you did not refuse, it is imperative that we clear up the refusal allegation.
- The officer recorded paperwork improperly. Police officers record hundreds of reports every year and can make mistakes when recording the paperwork. In some cases, they fail to pay attention to details or rush to finish the reports. This can result in mistakes, or omissions in the paperwork. The attorneys at the Orange County DUI Attorney Law Firm will review the paperwork involved in your case to look for any errors that could have been made in recording the paperwork.
- Failing to read you your Miranda Rights. Many individuals may be familiar with the Miranda Rights because of television shows or movies. These rights include the right to remain silent, and the right to have an attorney. Although many people are aware they have these rights, they fail to understand how and when to assert these rights. There are some instances where an officer failing to apprise you of your Miranda Rights can be the determining factor of you prevailing at your DMV hearing. Your attorney can review your case thoroughly to determine if any violation of your Miranda Rights were violated.
The Orange County DUI Attorney Law Firm is here to help
If you were recently arrested for DUI, we encourage you to consult with an attorney who can help you request a DMV hearing. Having a strong defense at your DMV hearing can help increase your chances at retaining your driving privileges, and can be beneficial for the criminal stage of your case. We encourage you hire an experienced defense attorney that will be by your side every step of the way during this stressful situation. Contact the Orange County DUI Attorney Law Firm today to schedule your FREE DUI consultation. Our attorneys are available to you 24/7, and will handle your case with the high degree of attention it deserves.