Upon your arrest for DUI, the law enforcement officer will confiscate your driver's license and give you a 30-day temporary driver's license.  Unless you request a DMV Administrive Per Se (APS) hearing to contest the matter, the California Department of Motor Vehicles (DMV) will automatically suspend your driver's license for four months for a first offense and one year for a second offense.  This "administrative" suspension process is separate from the criminal case against you proceding in Superior Court; yet, it will result in you losing your license.  Again, following your arrest for DUI, you have only TEN DAYS to request a DMV hearing to prevent the automatic suspension of your driver's license.  You can request the hearing yourself, or, if you have hired an attorney, your attorney should request it for you.  The DMV will usually schedule the hearing at the nearest Driver Safety Branch office of the DMV to where the arrest occurred.  However, your attorney may be able to get the venue changed to another location, if more convenient.

You Do Not Need to Attend the DMV Hearing In Person 

 You do not need to attend the DMV hearing in person, if you are represented by an attorney.  In fact, we usually prefer not to have our clients present, as if they are, the hearing will question them concerning the traffic stop and arrest, and may be able to elicit damaging testimony—hearing officers are skilled at that. 

You Have the Temporary License Longer If You Request a Hearing

As a bonus, when your attorney requests the DMV hearing, the date for hearing will likely be set beyond the expiration of the 30-day temporary driver's license given you by the arresting officer.  In that case, your attorney will demand that the temporary driver's license be extended until after the DMV hearing date, giving you an extension of driving privileges beyond the initial 30-day permit.

We can also generally get the DMV to extend the temporary driver's license until the time of the actual adjudication by the hearing officer, even if the hearing date is moved.  That means that, if the hearing date is pushed back at the request of your attorney, you will generally have a valid temporary license for a longer period of time—regardless of the untimate outcome of the hearing.

You or Your Attorney Should Always Request a DMV Hearing 

 You should exercise your right to request a DMV hearing.  First, your attorney will be able to demand from the DMV in advance of the hearing all the documents on which it intends to rely in suspending your license.  Going thought these documents, your attorney may find defects in the evidence against you, allowing your attorney, at the hearing, to object and ask that the evidence be excluded on grounds including:

• hearsay without an allowable exception to the hearsay rules;
• no proper foundation shown for PAS breath test results;
  
• police report states improper conclusions of law;
• police report states facts without providing a proper foundation;
• documents or reports not signed under penalty of perjury and not entitled to any exception to the hearsay rules;
• chain of custody for blood sample not properly established;
• person signing document giving blood test results was an employee of a private lab and the report is inadmissable hearsay. 

Because of defects in the documentary evidence presented at the DMV hearing, we have even succeeded in getting a license suspension set aside in a case where the client was arrested at the scene of an accident he caused, the blood test came back at a whopping 0.21 % BAC, and there was strong evidence against our client on all elements of the offense.

Issues Considered by the DMV Hearing Officer

While the standards at a DMV civil hearing are different from those in the criminal court case, and the issues are also somewhat different, the three main considerations of the DMV hearing officer will generally be whether the documentary evidence supplied to the DMV by the police supports a finding that: (1) there was reasonable suspicion/probable cause for the traffic stop; (2) there was probable cause for a lawful arrest; and (3) the licensee (if over 21) was driving with a blood-alcohol concentration (BAC) of .08% or greater. See Vehicle Code §§ 13558(c)(2), 13557(b)(2) and 13551. (We assume there was no refusal to take a post-arrest chemical test, which is by itself grounds for suspension.)

The first two main issues will pricipally be determined from the reported observations of the arresting officer as set forth in the police report, although if there are other records such as a video recording of the driving, traffic stop and roadside investigation, or testimony of other witnesses, those will also be considered.  As one might expect, because police officers have considerable experience writing traffic stop and arrest reports and well know the elements of reasonable suspicion and probable cause, their reports are often sufficient and hard to rebut.  However, your attorney will carefully scrutinize the record for any insufficiencies and problems; and, if possible, will argue that the traffic stop and arrest were unlawful and in violation of constitutional and statutory rights. 

The third main issue – whether the licensee was driving with a BAC of 0.08% – involves principally the results of the chemical test administered after arrest.  Under relevant law,  the samples taken for the post-arrest chemical test  – blood, breath or urine – should have been taken no more than three hours after the traffic stop.  Otherwise, there is no presumption that the results of the test accurately portray the BAC at the time of driving.  This is because Vehicle Code section 23152(b) (the .08% per se law) states that it is a rebuttable presumption that the BAC shown by chemical tests within three hours of driving was the BAC at the time of driving.  Santos v DMV, 5 Cal. App. 4th 537 (1992); Yordamilis v DMV , 11 Cal. App. 4th 655 (1992).  A test taken outside of the three-hour period can be considered by the hearing officer; however, he/she may do so only if there is testimony from a forensic toxicologist applying retrograde analysis establishing by a preponderance of the evidence that the BAC was over 0.08% at the time of driving. 

Accordingly, your attorney will carefully examine the police report, logs and other records showing when the stop took place and when the chemical test was administered.  If, for any reason, there was a delay of more than three hours between these events, your attorney will move to suppress the evidence collected, which, if successful, will force the DMV to set aside the suspension. 

Subpoenaing Witnesses and Records

If the facts indicate that it might help, your attorney will also subpoena the arresting officer and question him under oath concerning his observations and the evidence.  Aside from providing a defense at the DMV hearing and preserving your license, this can assist your attorney in assessing the strength of the court case against you and the advisability of considering plea bargains when they are offered.  If the case goes to trial, your attorney can ask the police officer the same questions at trial, and if the answers are different from those given at the DMV hearing, your attorney will point out to the jury the inconsistencies in the officer’s testimony, thereby attacking the officer’s credibility or ability to remember the facts of the case.

Under Government Code § 11425.10, a licensee subject to a license suspension proceeding has the right to present and rebut evidence to be considered by the hearing officer.  You have a right to serve subpoenas duces tecum on the custodians of records that might provide you with a defense at the hearing, compelling the custodian to bring such records to the hearing.  Your lawyer will determine whether such records – such as recordings, notes, logs, dispatch and transport records concerning the traffic stop, roadside investigation, arrest and transport to the police station; as well as usage logs and maintenance records for any breath machines used to test your BAC – might be helpful in providing a defense. 

Continuing the Hearing to Subpoena Needed Records

Vehicle Code § 14104.5 provides that the DMV will issue subpoenas or subpoenas duces tecum at the request of any party, to secure the attendance of witnesses with required records.  However, a subpoena duces tecum, needed to compel the appearance of a custodian with records, must be served at least 20 days prior to the hearing.  See C.C.P. § 1987(b).  Often, the need for such records becomes apparent from the police report and other documents produced by the DMV only days in advance of the hearing date set by the DMV.  Accordingly, if your attorney determines, based on the discovery produced by the DMV, that police logs, recordings, machine maintenance records or any other records muct be sought through a subpoena duces tecum, your attorney should move the hearing officer to continue the hearing date to a later time to allow the attorney the opportunity to compel the appearance of such records.  Even as late as the day of the hearing, we have been successful in getting continuances of 1-2 months.  Usually, your temporary driver's license will be extended through this period.

The Result of the Hearing

Usually, the hearing officer will issue her ruling 2-4 weeks after the hearing.  Your attorney will generally be able to insure that you have a valid temporary driver's license until that ruling.  If the ruling is adverse, you can request a rehearing and/or appeal the decision in a writ process to the Superior Court.