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How Do You Defend Loss of Someone’s Driver’s License?


Interviewer: Requesting a hearing to stop your license from being suspended requires immediate attention. What happens at this court hearing?

Aaron: There are different types of per se hearings. Ifsomeone refused to take a chemical test, there aredifferent elements the DMV has to prove there. WithaDUI where someone took a chemical test and was atorover a 0.08, there are different elements that haveto beproven there.

Then, if someone is under 21, there is even a lesser burden. This is because they just have to prove that you are at or over a 0.01.

Then there is also the probationary DMV hearing for someone who is actually on DUI probation in court. For the period of their probation, which is usually three years, there is zero tolerance. So if they have 0.01 or higher in their system when they are pulled over, they lose their license for at least a year.

So with DMV, your typical hearing is going to be your admin per se 0.08 DUI charge. That is the hearing that we as DUI lawyers deal with the most.

Basically the DMV has to prove three elements: The cops had sufficient, probable, or reasonable cause to pull you over and initiate a DUI investigation; Second, they followed procedures in that you were lawfully arrested and your rights were not violated; andYou were at or over a 0.08 blood alcohol level at the time of driving.

That is your basic admin per se elements. They change. You take a few of the elements away, or add a few, depending on the admin per se hearing we are talking about.  A refusal hearing has the first two elements the DMV has to prove. Then the 0.08 has nothing to do with it.

A refusal hearing is the toughest hearing to win in most cases. This is because all an officer has to do is read you an admonition. It says you have to take a chemical test or you lose your license for a year or more. Then you refuse, and that is all they need. So it is very difficult to win those.

Interviewer: Are driver’s license hearings defensible?What success have you had getting people to keep their license?

Aaron: Yes, I have had a lot of success winning these cases over the last many months. They are very difficult. Most attorneys have a very difficult time with these. It is very important to really know how to defend these.

It is important to know your defenses; to understand where in a police report you can find loopholes or problems with officer statements. Sometimes we have problems with machines. There is case law you need to stay up to date on.

A recent case called the Brenner Case has allowed us new defenses that we did not have before. This is rare in defending DUIs at the DMV. Usually the law is continuously getting tougher against us. Loopholes are closing.

Aaron Bortel

Get your questions answered - Call Us 24/7 For a FREE Case Evaluation (415) 523-7878.

When I started doing these hearings almost 20 years ago, they were much easier to win. There were many more loopholes. We could use a lot of different defenses that no longer work anymore.

However, I have had a lot of recent success.  I have won a lot of hearings over the last many months. I have been able to save a lot of licenses. Regardless, they are very difficult hearings.

Interviewer: When arrested, you get a temporary 30-day license. What happens if you win the hearing?What are the consequences if you lose the hearing?

Aaron: If you win the hearing, nothing happens to your license unless you are convicted of a DUI in court. If you win the hearing with DMV, in California you get a wet Reckless the first time you are arrested for a DUI.Nothing will happen to your license; which is great.Also, you do not even have to get additional insurance called SR-22.

Now if you lose the hearing, you are looking at either no driving for four months or no driving for one month, followed by five months of restricted driving. That restricted driving allows you to drive to and from work while you are working, and to and from a DUI school. Typically, the school is a three-month school, about 30 to 32 hours.

Interviewer: Do these consequences apply for just afirst-time offense; with no aggravated charges,accidents or past refusals?

Aaron: That is correct. When you have a breath test refusal, you are looking at one year of no driving.Unfortunately, there is no restriction on that. It is 12months no driving at all. You cannot take yourself to work. You cannot drive to a DUI school. You cannot drive anywhere.

Interviewer: If this is not your first offense, what are the license penalties?

Aaron: Well, it has changed recently. The law used tobe on a second offense within ten years, you wouldlose your license for two years. However, after oneyear you could get a license with an ignition interlockdevice installed in your car. You would have to blowinto the device to be able to drive your car; to start it.Also, while driving, you would periodically have toblow into it.

Now the law has changed. Those who make the laws have finally been made aware and agree that people are driving anyway, without insurance and with suspended licenses. They want people to be insured and drive without alcohol in their systems.

With a second offense DUI, you suffer a three-month suspension. That is three months of no driving at all, no restricted driving.  Now on a second offense DUI, after 90 days you can be eligible for an interlock license.

You need that on your car for the next 21 months. However, it does allow you to drive again. On a third offense, you have to wait 6 months to get that ignition interlock installed.

By Aaron Bortel

Aaron Bortel

Get your questions answered - Call Us 24/7 For a FREE Case Evaluation (415) 523-7878.

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