A DUI arrest results in two battles - one in court to fight any criminal charges, and one with the DMV to fight a license suspension. These two battles operate independently of each other and are somewhat unrelated.
To avoid a license suspension by the DMV, your DUI attorney must obtain what is called a "set-aside," which means your DUI attorney won the DMV Hearing and your license will not be suspended by the DMV. See the attached photo of a recent DMV Hearing I won showing client's license suspension "set-aside."
Persons arrested for DUI should understand the DMV process, and hire a DUI attorney familiar with DMV DUI hearings.
Here is how the DMV DUI hearing process works with respect to 1st and 2nd DUI offenses involving alcohol (DUIs involving drugs most often do not trigger a DMV suspension):
Person is arrested for DUI and issued an Admin Per Se Immediate Driver License Suspension or Revocation (this is a pink sheet that should be given to the driver by the arresting officer.) *Generally not given for DUIs involving drugs.
The persons's license will automatically be suspended 30 days from the date of arrest unless the person requests an Administrative Per Se Hearing within 10 days of the date of arrest.
If no hearing is requested, person's license is suspended on day 30 for 5 months (1st offenses), or 1 year (2nd offenses). Restricted licenses are available (see chart below).
If a hearing is requested, a DUI attorney should prepare for the hearing by requesting all relevant evidence, such as calibration logs on a breathalyzer device that was used on the person (to determine if it was functioning properly), any camera footage showing the arrest, if a blood test was given, all relevant documents related to the accuracy of the blood test and analysis, and more.
At the hearing, the DMV is required to prove the following:
That the arresting officer had reasonable cause to believe the person was driving with a BAC of .08% or greater;
That the person was lawfully arrested for DUI; and
That the person had a BAC of .08% or greater at the time of driving; and
That the person has a prior conviction or administrative suspension for DUI (2nd offenses only).
Your DUI attorney will fight to beat the DMV DUI suspension by obtaining what is called a "set aside." (See attached photo of recent "set-aside" for DMV Hearing I won.) A "set aside" means your DUI attorney won your DMV Hearing.
In my experience, the best defenses to a license suspension that most often result in a "set aside" are:
Lack of probable cause to stop the driver - i.e., no bad driving, inadequate description of bad driving;
Lack of probable cause for arrest - i.e., driving not observed the police, investigation inadequate or faulty;
Three-hour rule defense - the chemical breath/blood test must be given within three-hours of driving - this defense is especially viable where no driving is observed;
Title 17 issues - Title 17 regulates the administration of blood and breath chemical tests. It imposes rigorous requirements for the administration of these chemical tests. Failure to follow these regulations can result in a "set aside";
Rising BAC - Often breath/blood tests are given long after a person was driving. If a person just finished drinking before driving, their BAC could be "rising" long after they were actually driving their car. It is not illegal to have a BAC of .08% or greater an hour or more after driving. With an expert forensic toxicologist, we can often establish a "rising" BAC defense.
This list is not exhaustive, but these defenses often can result in "set asides" if properly raised by a DUI attorney at your DMV Hearing.
Clients are often concerned about how long their license will be suspended if their DUI attorney loses the DMV Hearing. Below is a chart showing how long the license suspension is for all DUIs.
If you have any questions about the DMV Hearing process following a DUI arrest, feel free to give me a call. Just make sure you call within 10-days of an arrest to avoid the automatic license suspension.