California DMV Hearing Procedure
Motorists arrested for Driving Under the Influence of alcohol or drugs in California have only 10 days from the date of arrest to request an Administrative Per Se (APS) hearing from the California DMV to determine whether or not the driver's license will be suspended. The Department of Motor Vehicles case is separate from the criminal court case the driver faces. With the help of a California criminal defense attorney with experience in DUI and DMV cases, consequences of these hearings may be limited.
California DMV has the burden of proof at an APS hearing. It must prove by a preponderance of the evidence that the arresting officer had a reasonable belief that the driver was under the influence, that the arrest was lawful, and that the driver had a blood alcohol content (BAC) of .08 percent or greater while driving a motor vehicle. If all three of these facts are proven, the license will be suspended.
The APS hearing officer serves as both prosecutor and judge. He or she will seek to enter the sworn statement of the arresting officer and other documents into the record. A California DUI criminal defense attorney will work to keep these documents out. DUI defense lawyer will argue that the documents are hearsay and should be suppressed.
One strategy is to argue that the documents cannot be entered into the record because certain facts related to their creation were not established, as required by the California Evidence Code. Also, if it can be proven that the officer made the arrest unlawfully, the arresting documents are hearsay and should not be allowed in. California criminal defense attorney with experience in DUI and DMV cases will argue that the reports should not be entered into the record.
Another tactic is to challenge the admission of chemical test results. If certain facts are not established, the chemical test results cannot be introduced. Without this evidence, the California DMV has no other way to establish a driver's blood alcohol content.
Depending on the facts, the DUI defense lawyer may use witness testimony to present the case. Testimony from the driver or a passenger may be effective in fighting the case. The testimony can be presented live, or through a sworn statement or declaration.
The science of drunk driving defense is also crucial if a motorist is to succeed at the California DMV hearing. A forensic alcohol expert provided by the defense may be able to convince the DMV hearing officer that the driver's BAC was below .08 percent at the time of driving.
After both sides present their cases, the California DMV hearing officer takes the case under submission. The driver receives the decision in the mail - usually in one to two weeks, but it is not uncommon for a month or more to pass before the decision arrives.
An Administrative Per Se (APS) hearing can result in two possible outcomes. The best possible result is for the DMV hearing officer to set aside the action - the revocation, suspension or restriction of the driver's license. This means the California DMV case is over, and the driver can obtain a duplicate license from the DMV at no charge.
Another possible outcome is an Administrative Per Se action - the revocation, suspension or restriction of driving privileges. The California DMV hearing officer may impose certain requirements that must be met before driving privileges will be reinstated. These requirements generally include attendance at alcohol education classes for three to 30 months. The length of the class depends on the number of DUIs and/or APS suspensions the driver has had in the past.
An Administrative Per Se action also means the driver must file a formal proof of insurance, or SR-22, with the California DMV. This requirement may be imposed for at least three years.
The consequences of an unsuccessful Administrative Per Se (APS) hearing at the California DMV are severe, but can be avoided with expert legal help. California criminal defense attorney with experience defending DUI and DMV cases will work to reduce or eliminate the consequences imposed by the DMV at an APS hearing.