If you are arrested for driving under the influence (DUI) in California, you will be given a pink "Notice of Suspension" letter. The Notice serves as your temporary driver's license, which is valid for 30 days from the date of your arrest. Your license will automatically be suspended after the 30 day period expires, unless you request a DMV Hearing within 10 days of your arrest.
To avoid license suspension, you must request a DMV Hearing within 10 days of your arrest. An experienced criminal defense attorney should be retained to represent you at the DMV Hearing.
What Is A DMV Hearing?
The DMV Hearing is completely separate from the criminal side of a DUI case. At the DMV Hearing, your DUI attorney will challenge the validity of your license suspension by arguing one or more of the following:
- The arresting officer lacked probable cause to believe you were driving under the influence;
- You were unlawfully arrested; and/or
- You were not driving with a blood alcohol concentration (BAC) at or above .08%.
If you refused to submit to a chemical test, then number 3 above becomes moot, and your DUI attorney will argue that:
- The officer did not advise you that failing to take a chemical test would automatically result in a one-year license suspension; and
- You did not refuse to submit to the chemical test when the officer asked you to provide one.
Winning Your DMV DUI Hearing
"Winning," in the context of DMV Hearings, means your suspension is "set aside" by the DMV. At the DMV Hearing, you have the right to an attorney at your own expense, and the right to present evidence. An experienced Temecula DUI attorney will subpoena the arresting officer, and present all favorable evidence on your behalf at the hearing.
The most common reasons suspensions are set aside are:
- Insufficient admissible evidence that the licensee was driving (i.e. - you were not driving a car);
- The officer lacked probable cause to stop the licensee's vehicle (i.e. - the officer had no reason to pull you over);
- The licensee was not under arrest at the time of the chemical test or refusal, or there was no legal authority to arrest due to lack of driving in the officer's presence;
- The chemical test (breathalyzer/blood test) was administered more than three hours after driving;
- There is no admissible evidence of when the driving occurred or, alternatively, of when the test was given, so driving cannot be established within three hours of the test;
- The licensee establishes a failure of the officer to comply with Title 17 of the California Code of Regulations - particularly the 15 minute observation period (officers are required to continuously observe persons suspected of DUI for 15 minutes before administering a breath test);
- Rising blood alcohol concentration (i.e. - your BAC was rising at the time of the test, such that your BAC would have been much lower at the time of driving);
- Lab blood/urine work was not signed "at or near" the time of the incident;
- The officer failed to properly advise the licensee of the consequences of refusing the chemical test;
- Discovery records indicate significant calibration issues with the breath test machine.
If your suspension is set aside after a DUI attorney successfully argues on your behalf, then your license will not be suspended unless you are convicted of the offense in the criminal side of the DUI case. Further, winning your DMV Hearing does not have any effect on the criminal side of the DUI case.
If you have been arrested for DUI, the most important thing you can do is retain a DUI attorney quickly in order to save your license.
Do I have to win my DMV Hearing to get a restricted license?
No. You can get a restricted license for a first-offense DUI even if you lose or do not request a DMV Hearing.
If I win the DMV Hearing, does the criminal case go away?
No. The results of the DMV Hearing do not have any impact on the criminal side of the case.