Orange county DUI lawyer explains the DMV Process

Arrests for DUI trigger two separate matters: A Criminal Case and the Department of Motor Vehicles (DMV) Case.  The DMV action following a DUI arrest is known as an administrative per se hearing, or APS.  Since Sept. 20, 2005, the legislature has removed the power of courts to suspend or revoke drivers’ licenses.  Only the DMV can now suspend a license, either because of an unsuccessful DMV hearing or a criminal court conviction.

A driver arrested for DUI in Orange County has the immediate concern of dealing with the DMV.  A motorist facing a drunk driving charge has only 10 calendar days from the date of arrest to request a DMV hearing.  If the driver doesn’t request a hearing within the 10- period, which includes weekends and holidays, his or her license will automatically be suspended for 30 days.  Even drivers licensed in another state will see their licenses suspended through the Interstate Driver’s License Compact.

The APS hearings are held at DMV Driver Safety Offices, not at DMV field offices.  The issues raised at an APS hearing will vary, depending on whether the driver took a chemical test to determine his or her blood alcohol content (BAC), or refused the test.

If the driver took a chemical test, there are three issues at stake – whether the officer had a reasonable belief that the driver was under the influence, whether the arrest was lawful, and whether a properly conducted chemical test indicated that the driver had a BAC of .08 percent or greater.  If the driver refused a chemical test, it is critical to determine whether the driver was advised of the repercussions of the refusal, and whether the motorist continued to refuse the test after being advised of the consequences.  If the driver loses the DMV hearing, the length of the license suspension will be substantially longer than for drivers who submit to chemical tests.

Unlike court trials, which involve live witness testimony, the DMV’s decision is typically based on various police and chemical test reports, and is extremely technical in nature.  The evidence typically introduced at a DMV hearing is hearsay, which is generally inadmissible in a court of law. This is why it’s imperative to be represented by a lawyer who is knowledgeable about the DMV hearing process.  An attorney will challenge the evidence based on the hearsay rule, and if the evidence cannot be legally introduced, the DMV cannot suspend the driver’s license.

While the court is concerned with the criminal aspects of a drinking and driving case, the DMV is concerned with the administrative aspects – the power to revoke, suspend or restrict a driver’s license.  It is considered a civil action, not a criminal action. Therefore, there are fewer Constitutional protections when it comes to the DMV.

One unusual aspect of the DMV hearing is that the prosecutor and the judge are the same person, meaning the individual seeking to introduce evidence is the same person who will rule upon it.  This person isn’t even a judge or an attorney – it’s a DMV employee.
The license suspensions imposed by the DMV if the driver doesn’t win at the hearing can be severe – for a first offense, the license is suspended for four months, with the possibility of getting a restricted license to drive to work.  Drivers facing a first offense who refused to take a chemical test lose their licenses for one year, with no opportunity to get a restricted license.

For multiple DUI convictions within 10 years, the repercussions are even greater. On a second offense, the driver’s license is suspended for one year, or two years if the driver refused a chemical test. On a third offense, the license is suspended for three years.
Although the DMV process may seem unfairly biased against the driver, drivers accused of drinking and driving can prevail at an APS hearing.  A lawyer who specializes in defending drunk driving cases can analyze the reports generated by the arrest and plan a strategy to attack a DMV license suspension action.