DUI Arrest: Why Contacting The DMV Is The First Step

By Law Offices | Felicia Yates & Associates

 

When a person first gets issued a DUI citation, the law enforcement officer(s) will hand them an Order of Suspension and Temporary License (a pink piece of paper with important DMV instructions - known as form DS-367). This will serve as a temporary license, good for 30 days from the date of your DUI incident. However, you - or an attorney - must take action right away to be sure the California DMV (CA DMV) is notified of your intent to have an administrative hearing on the pending license suspension.  

 

Also known as the "Admin Per Se" proceeding, an individual cited or arrested for a DUI or DWI must take action within ten (10) calendar days (which includes weekends and holidays) of receiving their citation by contacting the CA DMV by telephone and scheduling an Admin Per Se hearing.  It will normally be set for thirty (30) to sixty (60) days from the time of your request.  Failure to make a timely request, will result in an automatic suspension of your driving privilege, and a forfeiture of your right to a DMV hearing!  

• If you are 21 years of age or older, did not refuse a chemical test, the results showed a      Blood Alcohol Content (BAC) of at least 0.08%, and this is your First Offense, your license would be automatically suspended for a period of Four (4) Months.
• If you are under 21 years of age, did not refuse a preliminary alcohol screening (PAS) test, the results showed a BAC of at least 0.01%, and this is your First Offense, your license would be automatically suspended for a period of One (1) Year.

This legal process is completely separate and apart from any DUI charges you may be facing in the Superior Court, and is governed by its own rules and regulations.  If you are an out-of-state licensee, it is very important to realize that because of the Driver's License Compact, DUI and DWI arrest information is shared between most states in this country.  The Admin Per Se hearing will give you and your defense attorney an opportunity to prove to the DMV that a license suspension is not justified.  This can be accomplished by successfully contesting any of the following elements:  (1) the Probable Cause or Reasonable Suspicion for the traffic stop,  (2) the Lawfulness of the Arrest, or  (3) whether or not you had a Blood Alcohol Concentration (BAC) of 0.08% or higher, at the time you were driving.  The hearing is normally conducted via telephone by a DMV Hearing Officer, and is tape recorded.

 

There are a multitude of defenses that might be presented by your attorney to rebut the elements listed above.  You are also allowed to present legal arguments in writing (i.e. case law or statutory authority) prior to your DMV hearing, present witnesses on your behalf, and even subpoena the citing law enforcement officer.  By the way, the CA DMV has the Burden of Proof (based upon a Preponderance of the Evidence) at an Admin Per Se hearing.   The hearing officer essentially has to determine whether it is “more likely than not” you were intoxicated (with a BAC of 0.08% or higher) during the time you were operating the motor vehicle.  This is a lower standard than the standard set forth in the Superior Court - which is proof "beyond a reasonable doubt."  If the DMV happens to sustain your license suspension, you may still be eligible to apply for a restricted driver's license - for purposes of going back and forth to school, work, medical appointments, etc.

 

Since everyone's case is unique to that individual and the specific circumstances, you should consult with a competent DUI attorney to determine your best course of action. Our office has expertise in DUI law, and we encourage you to reach out for a free consultation. Attorney Felicia Yates has been practicing law for over 35 years in California and may be contacted at (702) 817-4661, via e-mail at attorneyfeliciayates@gmail.com, or via website at https://www.attyfeliciayates.com.