What Will Happen to Your Driver’s License When You Are Charged With a DUI?
Interviewer: When you’re pulled over and the police suspect that you’re driving under the influence, can you explain what the driver’s license consequences will be? What happens when you’re arrested for DUI? Does the arresting officer immediately confiscate your license?
Aaron: There is a stop and snatch law that they use for DUIs in California. And if you take a chemical test or a breath test – they’re never going to have a blood test result right away – but if your breath test shows that you’re at or over 0.08 or if they do a blood test without any breath test and think that you’re over an 0.08, they’re going to take your license.
Your California Driver’s License Will Be Confiscated If a Breath Test Result Is 0.08 or Over
They take it right away, unless it’s an out-of-state license. But if it’s a California license, they can take it and they’ll give you a sheet of paper. It’s usually pink, some counties it’s still not, and they generate it from a computer. That’s a temporary license, and that’s good for 30 days. You have to contact or have an attorney contact the DMV within 10 calendar days of the arrest, to request a hearing with DMV, or if you do not do that, after 30 days your license will be suspended.
Interviewer: So, at the moment that you’re arrested, they’re not going to take your license right then, but they’ll take it only upon a failed breath test?
Aaron: Well, they will take your license if you blow at or over a 0.08 on a breath test. If you refuse to do a test and they believe that you’re under the influence or they believe that you’re at or above 0.08 based on driving, field sobriety tests and the odor of alcohol, they will take it as well.
Your License Is Not Supposed to Be Confiscated If It Is a Drug-Related Case
So the only time that they’re not supposed to take it is when it’s a drug-related case, as opposed to an alcohol-related case. The police often do confiscate your license if it is a drug-related case; however, they’re not supposed to because the whole taking your license is for the alcohol laws, not for drug laws.
Interviewer: Even if it’s below a 0.05, they can still say, well, you seem impaired, so we’re going to take your license?
Aaron: Usually, almost every time you when you blow under a 0.08, they will not take your license.
Requesting a DMV Hearing to Restore Your Driving Privileges
Interviewer: So, you said that once you’re arrested, in the right circumstance they’ll take your license, and you’ll have a temporary one for 30 days. In the meantime, you’re supposed to request a hearing with the DMV to do what? What happens at this hearing? What are you contesting?
An Admin Per Se Action
Aaron: What you’re trying to do is – and you almost always want an attorney that knows what they’re doing with the DMV so you have a chance to win – you’re trying to keep your license from being suspended. This is called an Admin Per Se action.
You Will Benefit From Retaining An Attorney to Represent You at This Hearing
At this hearing, the DMV is claiming that because you were at or over a 0.08, and you’re going to lose your license for a period of time. That can be prevented if the attorney can show that one of three elements is not met.
Those elements are: They have to be able to show is that the police had reasonable cause to pull you over, believing that you’re in violation of DUI laws. They have to be able to show that you were lawfully arrested, and they also have to be able to show that your blood alcohol level was at or over 0.08 at the time of driving. If the attorney can show that one of those three elements or more were not present, then they will save your license with the DMV.
With An Attorney’s Help at the Admin Per Se Action, a Successful Outcome Could Have a Favorable Benefit for Your Criminal Case
The only other issue there in regards to the license is you’re probably going to have a court case as well. On a first offense, if the attorney can get it dismissed or win at trial or get a wet reckless or a dry reckless instead of a standard first DUI conviction, then your license will be completely saved if he or she has already won your DMV.
Interviewer: So, the DMV hearing is not a criminal case. It’s what is called an administrative law or civil case?
Aaron: Exactly. It’s an administrative case; it’s a civil case. That’s correct. If you lose the hearing at the DMV, that is not a criminal conviction.
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Is It Difficult to Prevail at the DMV Hearing?
Interviewer: So, how hard is it to win the DMV hearing?
Aaron: Well, just like a court case, it depends on the facts of the case. Some cases are a lot harder to win than others. If you’re close to the legal blood alcohol limit, there are usually a lot more defenses. It just depends.
If you have a no driving defense and you’ve got witnesses or they can’t prove it, then you can win the case. The defenses that work at the DMV hearing that give you the best chance to win are usually rising blood alcohol levels, and margin of error, whether it is blood or breath testing. We bring in expert witnesses to many DMV hearings, especially for cases that are close the legal limit, to testify about the validity and accuracy of the testing process.
How Does the Wait for Blood Test Results Affect the DMV Hearing?
Interviewer: What if you have a blood test, though, and the results take more than a month or something to come back? Doesn’t that overshoot the time limit for the Admin Per Se hearing?
Aaron: No, what happens is that they’re so backed up at the DMV that – say you were arrested today, and the hearing request went in within the 10 days. They’re almost never going to schedule a hearing within 30 days of your arrest, it’s going to be sometime past that. So what they do is they do a stay of suspension. They will send you a new temporary license, which will be good until the conclusion of your DMV hearing, and then your license is suspended by DMV if you do not win the hearing.
Another Reason to Retain An Attorney – Many Times, the DMV Hearing Is More Difficult to Win Than Your Court Case
Interviewer: So if you win at the DMV hearing, does that mean that your whole criminal side of the case is going to unravel and you’re good to go? Or do you still have to fight a whole brand new fight there?
Aaron: It’s completely different from the criminal case. The burden at DMV is – let’s put it this way, it’s a lot easier to lose DMV than it is in court. This is because the burden at DMV is a civil burden, more likely than not, 51% of the time. That’s all that the DMV has to show on those three elements. In court, it’s proof beyond a reasonable doubt.
So at DMV, unfortunately, what has happened over the years is the hearing officers have gotten tougher and tougher. The new ones come in and they are instructed to basically do everything possible to suspend everybody. Unfortunately, that’s the way it has been going. We still have some good hearing officers out there who follow the law, who are not worried about what their supervisors are going to say, but DMV is tough to beat.
Why You Should Make All Efforts to Fight for Your Driving Privileges at the DMV Hearing
Interviewer: Is it always a good idea to go the DMV hearing and fight, or are there cases where you should just let it go and just focus on the criminal side?
Aaron: Well, this is why you want to consult with a DUI lawyer who does a lot of DMV hearings and who is successful there because they can help you evaluate it. In almost every single case, the advice that an attorney is going to give you is to fight your case with DMV. They will counsel to keep you driving while the DMV and the court cases are going on and see if they can save your license. There’s too much at stake here.
Your Insurances Rates Can Increase
If you decide that you’re just not going to win DMV and you’re not going to hire a lawyer, if you don’t fight, there is no way to win. You are going to be facing, if you lose DMV, and lose in court, one or the other, your insurance is going way up.
You Can Have Points Added to Your Driving Record
Since we’re specifically talking about DMV right now, a DUI is two points on your driving record, and if there is an accident involved, that’s another point. That’s three points. There are other consequences. If you already have a point within the last twelve months and it’s an accident DUI, you’re looking at being considered a negligent operator and having your license taken away for even longer.
You Must Request Your DMV Hearing With 10 Days of Your Arrest
Interviewer: Just as a reminder to people facing this scenario, if you don’t request a hearing with the DMV in the first 10 days, you’re not going to get one, and you’ve already lost that part of your case?
Aaron: That’s right. And if you do that, if you just decide that you have no chance to win and you don’t consult with an attorney, the consequences are severe. I think everybody should at least try and fight it because – let’s just start with insurance costs.
It will also affect your present or future employment. Once you have a suspension from DMV and have the points on your record, if you ever want a job that has anything to do with driving, when you’re under an employer’s insurance coverage, the other guy or gal is going to get the job over you because the company won’t hire someone very often who has the DUI suspension from DMV.
Will the Points On Your Driving Record No Longer Count After a Number of Years?
Interviewer: But don’t the points and all that fall off after like three years or so?
Aaron: Well, the points will fall off and eventually your insurance will go down, but these records are usually there for 10 years, and sometimes can stay even longer for DMV. And in the criminal case, they stay on there forever.
By Aaron Bortel
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