DUI FAQs (page 3)

What is a DMV hearing?If you have been arrested for driving under the influence of alcohol, you will have to deal with two separate legal processes by the government. The one that is most likely familiar to you is the criminal court process described below. The process that is not as well known is Administrative Per Se hearing that takes place at the Department of Motor Vehicles. The California DMV is granted the authority by law to hold a hearing for any driver who is accused of operating a motor vehicle while having a blood alcohol content (BAC) of 0.08% or higher. The purpose of this hearing is to determine if the DMV will suspend your driver license because of the alleged DUI incident. It is therefore imperative that you have a qualified and experienced DUI lawyer who will fight aggressively and effectively to protect your interests and preserve your right to drive.

If I have been arrested for driving under the influence of drugs, will I have a DMV hearing?No, you will not have a DMV Admin Per Se hearing if you have been arrested for DUI with drugs. DMV hearings only take place if the defendant has a blood alcohol content (BAC) of 0.08% or above.

The police took my license when I was arrested. When will I get it back?The police, sheriff, or CHP are required to take your driver license if you are arrested for driving under the influence. When you were released from custody, you should have been issued a temporary license that is good for thirty days. You would get your license back at the conclusion of the DMV review process if the DMV hearing officer determines that no license suspension is required or, in the event that a license suspension is given, at the end of that suspension period.

Will I automatically get scheduled for a DMV hearing?It is very important to understand that if you have been arrested for driving under the influence of alcohol, the Department of Motor Vehicles will not automatically schedule you for a DMV Admin Per Se hearing. DMV must receive notification within ten calendar days of the arrest that you want to schedule a DMV hearing. If DMV is not notified that you want a hearing, then your license will automatically be suspended. For a first DUI, the suspension is typically four months. For repeat DUIs, the suspension period can be one year or more. As your DUI defense attorney, I will contact DMV to schedule the hearing and stop the automatic suspension of your driver license.

What happens at the DMV hearing?Most Admin Per Se hearings in Sacramento take place at the Department of Motor Vehicles offices on Broadway. A DMV hearing officer, not a judge, oversees the hearing. There is no jury and no prosecuting attorney. As your defense attorney, I can call witnesses such as the arresting officer and present evidence to convince the hearing officer that your license should not be suspended. After listening to the defense attorney’s arguments and testimony of witnesses and examining relevant evidence, the DMV hearing officer then takes time (often three to four weeks) to review all the facts and make a determination on the case. Notification of the hearing officer's decision is sent by mail.

What is the legal standard used by the DMV hearing officer?At the DMV Admin Per Se hearing, the DMV hearing officer will use the legal standard of “preponderance of evidence” to determine whether your license should be suspended or not. Think of this like a scale. If the DMV hearing officer decides that there is more evidence indicating that the requirements for license suspension have not been met, then he or she will not issue a license suspension. If the hearing officer decides that there is more evidence that the requirements for license suspension have been met, then he or she will issue a license suspension. This is a different standard that the “beyond reasonable doubt” standard used in the criminal court process.

How does a DMV hearing compare to the criminal court process?While you might not be familiar with the details of the DMV hearing, you are probably familiar with the criminal court process that will take place in the courthouse of the county in which the incident took place. It is in criminal court that you will be charged by local District Attorney’s Office with an alleged violation of California Vehicle Code sections 23152 or 23153. As your DUI defense attorney, I will represent you in front of the judge and defend you against the accusations that will be made by the prosecuting attorney. If we determine that the best defense is to go to trial, we will present evidence and arguments to convince the jury to decide on an acquittal of the charges. We will fight in criminal court to protect you from a conviction that would go on your criminal record.