It is illegal to operate your vehicle with an alcohol level of 0.08 percent or higher. If arrested for a second driving under the influence offense, you face both a criminal proceeding and a Department of Motor Vehicles hearing. Your driver's license suspension is automatic with the California DMV unless you request the hearing. During the hearing, the hearing officer will establish the charges against you. You will need an experienced DUI defense lawyer to challenge the charges, especially because a second-time DUI offender is likely to be treated more harshly compared to a first-time offender. Let our legal team at the Orange County DUI Defense Lawyer handle the administrative and legal complexity of the hearing and seek a favorable outcome for you.
An Overview of California DUI License Suspension
One of the penalties you might face after being arrested for driving under the influence in California is the withdrawal of the driving privileges. A second DUI offense in Orange County does not always mean your driver's license will be withdrawn. The suspension is not always automatic, and with the assistance of an experienced DUI attorney, you can win. To prevent the suspension of the license, you should do the following:
- Avoid not requesting or losing a Department of Motor Vehicles hearing, or
- Avoid a drunk driving conviction in court
Read the article to learn more about DMV license suspension and how your competent attorney can help you.
Court-triggered Driver's License Suspension
You are likely to face a two-year license suspension if you have a previous wet reckless or drunk driving conviction within the look-back period (ten-years). However, the judge doesn't impose the suspension.
Rather, after being found guilty, the court informs the California Department of Motor Vehicles, which will impose your suspension.
Through plea bargain negotiations, you can get your DUI charges reduced to a lesser offense like reckless driving that stops the court-triggered driver's license suspension.
Please note, per Senate Bill 1046 (2018), the DMV will allow you to continue enjoying your driving privileges provided that you install an ignition interlock device in your motor vehicle.
If your driving under the influence case proceeds to court and the outcome is a hung jury, not guilty verdict, or mistrial, you will certainly avoid the suspension.
DMV License Suspension After a Second DUI Offense
If you are accused of DUI for the second time, the DMV will try to suspend your driver's license due to an administrative per se violation (APS).
Following your arrest, the arresting police officer will take away your license and offer you a Notice of Suspension. Usually, the Notice of Suspension is a pink piece of paper. The document will serve as your temporary driver's license for thirty days. Additionally, it will notify you that you have a right to request a California DMV hearing to stop the license suspension. However, the hearing should be requested ten days from the date of your arrest.
Held at the DMV office, a Department of Motor Vehicles hearing is an administrative hearing. It is designed to determine whether your driving privilege should be withdrawn for some time or not.
If you fail to request a hearing before the ten-day timeframe elapses, you lose the right to avoid suspension. Also, your driver's license will be suspended after thirty days.
If you request a hearing, the license suspension will be delayed awaiting the results of the DMV hearing. Should you triumph at the hearing, the suspension is avoided altogether.
It is worth noting that only defendants accused of drunk driving with a blood alcohol concentration of 0.08 percent and more face the suspension. That means if you took a breath test and your blood alcohol concentration (BAC) results after taking a chemical test are below 0.08 percent, the DMV won't withdraw your driving privilege under violation of APS.
Before the hearing, you can obtain or see copies of the evidence against you. The law requires all requests for police reports or documents to be made in writing.
Ordinarily, the DMV does not make arrangements for the law enforcers to testify. However, the agency reserves the entitlement to contact the law enforcement officer who arrested you if it's later determined that their testimony is essential.
You can subpoena the police officer and any other witness you feel might assist your case. Please note, you should make payments for all the necessary fees as well as ensuring the witnesses get the subpoena.
How to Request a California DMV Hearing
To request your hearing, you should reach the nearby DMV driver safety branch office. It is worth noting that this office is not where you registered your motor vehicle or got your license.
Remember, you should ask the DMV office to plan a hearing within ten days after your arrest.
If you engage a proficient defense attorney in a court case, the attorney should be able to request and plan the hearing as long as you retain their services after the ten-day window. The lawyer could also attend the hearing for you if you aren't testifying.
What is the Difference Between a Court Triggered Driver's License Suspension and DMV Suspension?
The DMV hearing is independent of a court proceeding. The DMV deals with your license suspension and the arrest's fact. A court proceeding, on the other hand, determines whether you're innocent or not of drunk driving.
You can choose to have the DMV hearing or not and whether to have your defense lawyer present at the hearing or not. On the contrary, a court proceeding requires you or the defense lawyer to attend all hearings.
Unlike the court proceeding, a California DMV victory will not affect your court case. The hearing officer will only dismiss your license suspension. Please note, this decision is independent and different from a criminal charge, decision, penalty, or sanction.
A reduction of your drunk driving charge to a lesser offense like wet reckless in court is independent of the DMV hearing. Additionally, it doesn't affect the license suspension.
Should you lose the hearing, you could have a renewed entitlement to a DMV hearing after a year from the day of the arrest when:
- The District Attorney does not file the charge because of lack of proof,
- The charge is dismissed, or
- Charged, but dismissed by the court due to illegal search and seizure per California PC 1538.5 or insufficient evidence.
When undergoing the criminal court process, you should put into account other consequences other than a license suspension. A second-time DUI conviction carries a longer jail term.
How to Win a California Department of Motor Vehicles Hearing
The DMV hearing scope is wide. There are several factors that the DMV hearing officer puts into consideration:
- Did the police officer have probable cause to think the accused was drunk driving?
- Did the police officer have a legal reason to detain the defendant?
- Was the defendant operating their vehicle with a BAC higher than 0.08 percent?
If the defendant refused to take a chemical test, the next concern turns out to be an arguable concern at the hearing. Rather, the main issues are:
- Did the defendant willfully refuse to take a chemical test even after the law enforcer asked them to give a sample?
- Did the arresting police officer tell the defendant if they refused to take a chemical test, their driver's license would be suspended or revoked?
After putting these issues into consideration, the hearing officer will either:
- Reverse the withdrawal of the driving privileges, or
- Suspend your license on the grounds of the DUI offense
The California Department of Motor Vehicles hearing officer ought to dismiss the administrative action and let you continue enjoying the driving privileges if you refute any of the concerns mentioned above or stop incriminating proof from being heard at the hearing.
Discussed below are the different legal defenses your qualified defense lawyer may use at your DMV hearing:
You Weren't Operating Your Car
If the arresting law enforcement officer didn't see you operating your motor vehicle and neither:
- The DMV subpoena a witness who saw you, or
- Is there evidence that can prove that you drove
then the DMV hearing officer should reverse the license suspension.
The Law Enforcer didn't have a Probable Cause to Arrest You for Drunk Driving
If the arresting police officer didn't have probable cause to arrest you for DUI, your driver's license should not be suspended. Your attorney could use the following to explain why the officer did not have a reason to detain you:
- You were adhering to traffic rules and were stopped since you are a racial profiling victim
- You got involved in a car accident but started taking alcohol after reaching home where the police interviewed you from
The Police Arrested You at an Unlawful DUI Sobriety Checkpoint
Likewise, if you are detained at a checkpoint that does not meet the stringent legal requirements, then your arrest is unlawful. That means even if you were drunk driving, the arrest superseded that fact, and you ought to prevail at the hearing.
There were Errors in the Police's Paperwork
When police make an arrest, they should fill out the necessary paperwork and reports.
Should the arresting police:
- Forget signing the paperwork,
- Write an incorrect date,
- Record inaccurate BAC results,
- Forget to record your blood alcohol concentration results, and
- Cannot remember your arrest's facts to rectify these errors,
These flaws may be fatal to your case and lead to winning the hearing.
The Defendant was Detained for Breaking the Zero Tolerance Laws, and the Police Didn't Use the Right Protocol for the Blood Alcohol Concentration Results
Under Vehicle Code Section 23136 VC, it is illegal for motorists below twenty-one years of age to drive with any alcohol in the blood. Often, the police conduct a preliminary alcohol screening test to the motorists.
Preliminary alcohol screening gadgets aren't regulated by California Title 17. That means if the police testify about a blood alcohol concentration level in a DMV hearing for DUI committed by a minor driver, they should explain why the preliminary alcohol screening (PAS) was deemed the dependable breath testing device. Well, in most cases, the police officers don't know how to go about it.
The Defendant Didn't Refuse to Take a Chemical Test
Maybe the defendant didn't refuse to take a chemical test. Perhaps, they blew, but their breath samples weren't adequate, or they were not given an alternative. Or they were enquiring about the process, and the police misinterpreted the questions as resentment and concluded the accused refused to comply.
If the defendant didn't refuse, their license should not be suspended. If there is neither refusal nor a BAC result, license suspension cannot be sustained.
Physiological Explanations Can Explain the High False Blood Alcohol Concentration
There are many reasons why your BAC was higher than 0.08 percent, which may not relate to the amount of alcohol taken. Some of these include:
- Consuming low carbohydrate, high protein diets
- Medication such as acid reflux and heartburn and GERD
- Residual mouth alcohol
If a defendant suffered from one of these conditions when they submitted their chemical test, and they were not operating a car with a BAC higher than 0.08 percent, they could win the hearing despite the breath test results.
You Did Not Exhibit Any Sign of Mental Impairment
Per DUI law, there are two forms of impairment, namely:
- Physical impairment
- Mental impairment
In most cases, what the police claim a person exhibited during an investigation is physical impairment. It could include:
- Unstable gait
- Watery or red eyes
- Slurred speech
- Poor coordination
Nevertheless, experts argue that drug and alcohol-linked impairment always manifests itself as mental impairment first. That means if the arresting police claim that you show physical impairment (not mental impairment), you could be in a position to win the California Department of Motor Vehicles hearing.
Bad Driving Does Not Always Mean Drunk Driving
While the law enforcers like to believe that all bad driving habits must be drunk driving, this is not always the case. Erratic driving, speeding, and weaving can also be due to distraction or inattention.
Probably, you were playing a CD, picking up something that had fallen, distracted by passengers, eating, or working with a navigation app on your phone.
The truth is that sober drivers demonstrate bad driving habits just as drunk motorists do. Your defense attorney can build a defense around this fact; most members of the jury can relate to it.
Rising Blood Alcohol
Another effective defense is rising blood alcohol irrespective of whether you submitted a blood test or breath test.
Usually, alcohol takes approximately fifty minutes to three hours to be absorbed into your blood.
Assume, you have finished taking alcohol and immediately take a short drive, and then the police pull you over and put you in custody for a chemical test. If the blood alcohol is still going up during your arrest, the chemical test result will give a greater BAC than the one you had when you were driving.
In this case, what is relevant is your BAC when you drove. Understanding the concept behind rising blood alcohol forms a defense.
What Takes Place If You Win the Hearing?
Should you win the hearing and then the DMV hearing officer dismisses the administrative action, your driver's license will not be suspended.
It also means you stand a better chance at the plea-bargaining negotiation with the prosecutor for the drunk driving criminal charge. If the hearing discloses substantial errors in the prosecutor's case, it could even persuade the judge to dismiss the charges.
Since the court and DMV hearing proceedings are independent, winning the Department of Motor Vehicles hearing doesn't extend to your criminal case. The prosecutor could still have strong and sufficient proof to go ahead to trial.
If you're eventually found guilty of DUI in a court of law, the judge has the authority to suspend or revoke the driver's license. That's the reason it is essential to hire a defense counsel who has experience in winning DUI cases in court and at the California DMV.
What Transpires if You Lose Your DMV Hearing?
Although you have lost your DMV hearing, any experienced attorney nonetheless could have elicited details at the proceeding, which may convince the prosecution to give you a lesser plea. Additionally, winning at trial or plea bargaining could cause the Department of Motor Vehicles to dismiss the driving privilege withdrawal even though it has become effective.
In case you lose the DUI DMV hearing, your APS suspension is a year if there is one previous DUI conviction on your record within ten years. However, the DMW will permit you to continue enjoying your driving privilege during the suspension period provided you install an ignition interlock device (IID) in your car.
Acquiring a Restricted Driver's License Following a Second DUI Offense
There are two categories of restricted driver's licenses, namely:
Ignition Interlock Device Restricted License
An IID is a breathalyzer device that prevents a motor vehicle's engine from starting should it sense the motorist is drunk.
The DMV will allow you to continue operating your car anywhere during your suspension period as long as you install the IID in your car.
You are also supposed to:
- Attend a court-approved alcohol education program
- Pay all charges needed to obtain the IID restricted license
- File an SR22 form
An SR22 form is proof of state-monitored liability insurance that can be acquired at an insurance firm of your choice.
Normally, the restricted license in question lasts for a year for a second drunk driving offense.
This license allows you to drive yourself to your school, work, and DUI school during the driver's license suspension period.
To reinstate the driver's license after the suspension period or to acquire a restricted license, you should file an SR22 form. You could be needed to keep the SR22 form with the DMV for three years from when your driver's license was reinstated.
Although the administrative per se violation suspension period is a year if:
- There is one previous DUI conviction within the look-back period,
- You took a breath test, and
- Provided evidence of an IID installation,
You might get a restricted license after ninety days.
The restricted license lets you operate a car anywhere provided it is a motor vehicle with the IID. It's required for twelve months.
However, a motorist charged with a second DUI offense who also failed to take a breath test will be punished more severely. The defendant will face a two-year driver's license revocation. Moreover, they do not have a right to get a restricted license throughout the period.
It is worth noting there isn't a way around the twelve-month IID requirement. Consequently, you ought to install the breathalyzer straightway. It will help you obtain your restricted license on the 91st day from the date the suspension started.
Also, before acquiring the restricted license, the DMV record must demonstrate that your court-triggered license suspension has started. Nevertheless, a suspension due to a court conviction doesn't have to have run ninety days provided the administrative per se violation has run ninety days.
Appealing a DUI DMV Hearing Decision
In case you should have won the DMV hearing, but the hearing officer got it wrong, you are entitled to appeal that decision. You could bring an appeal with the California Superior Court or request the DMV to do a department review.
You can find the appealing ruling time frame and instructions on the written form that notifies you of the DMV decision after your hearing. You will pay one hundred and twenty dollars for the review.
In case you choose to appeal directly to the California Superior Court, you should appeal via a writ of mandate. A writ of mandate is a request to the court of law to evaluate as well as reverse the DMV's final decision. Generally, bringing the writ of mandate will cost you between two thousand and five hundred dollars and three thousand and five hundred dollars.
In case that decision is not satisfactory, you can file an appeal to the California Court of Appeals.
Note, both procedures operate under stringent regulations and have specific deadlines. Consequently, it is essential to hire a knowledgeable attorney.
Find an Experienced Orange County DUI Defense Lawyer Near Me
Driving in Orange County is both a responsibility and a privilege, and you cannot operate a car without a driver's license. The Department of Motor Vehicles is tasked with issuing the licenses. However, the agency has the power to suspend a driver's license. If you are accused of a second DUI offense, the arrest will trigger the suspension, even before defending yourself in court. Fortunately, you can challenge the administrative action through a hearing, and hiring a skilled defense lawyer can prevent losing the license. If your driving privilege is at risk of being withdrawn, don't hesitate to speak to the Orange County DUI Defense Lawyer at 714-820-9592. We deal with many cases of DUI and DMV license suspension for drivers facing DUI charges in the Orange County area.