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DMV-ADMIN PER SE

San Mateo DUI Attorney-Michael Rehm (650) 293-9070

Available for free, confidential consultations 24/7 at (650) 293-9070

If you have been arrested for driving under the influence, you should have been provided with a temporary license from law enforcement. This temporary license (the pink piece of paper) specifically states on it that the DMV will attempt to suspend your license 30 days from the date of arrest. In order to avoid this suspension you are entitled to a Administrative Per Se hearing. In order to have this hearing, you must contact and inform the DMV that you are requesting the hearing within 10 days of the arrest. A couple of quick bullet points in regards to the hearing:

·  When you request the hearing, you should also request a “stay.”  This refers to a stay of the license suspension pending the outcome of the hearing. In other words, your license remains valid through the outcome of the hearing. You will no longer lose it 30 days from the arrest date.

·  You can also request a copy of the police report and all evidence the DMV has. When setting up the hearing, just ask for “discovery.” The DMV will mail you or your San Mateo DUI Lawyer all of the evidence when they receive it from law enforcement.

·  You can request the hearing by telephone. For San Mateo County DUI cases, you call (415) 557-1170.

·  Depending on who answers, the DMV are notorious for attempting to persuade people not to set the hearing. If you hire myself or another DUI lawyer, let your attorney set up the hearing. If you do not hire anyone, and they give you a hard time about what it is your contesting, just tell them you have a right to a hearing and you want one. If you must, ask to speak to a supervisor.

 

The hearing itself is either conducted over the phone or in person. Many DUI attorneys will tell you that an in person hearing is absolutely crucial. Personally, I have had a lot of success over the phone and in person. On a close case though, in person can help. The issues at the hearing are:

1. Did the peace officer have reasonable cause to believe you were driving a motor vehicle in violation of VC §§23152 (DUI), 23153 (DUI with Injury), or 23154(.01% or more while on DUI probation)?

 

·  This basically looks at whether they had probable cause to place you under arrest. This determination depends on your driving, performance on the field sobriety tests, any observations of the arresting officer, and any Preliminary Alcohol Screening Breathalyzer result.

2.  Were you lawfully detained while on DUI probation or lawfully arrested?  – Did law enforcement have a valid reason to      pull you over, to detain you if you were not pulled over, and did they have probable cause to arrest.

3.  Were you driving a motor vehicle when you had 0.01% BAC or more while on DUI probation; 0.04% BAC or more while driving a commercial vehicle; or 0.08% BAC or more while driving a noncommercial vehicle?

 

·  This issue deals with the heart of the matter, whether the DMV can actually prove that while you were driving, you had a blood alcohol level of a 0.08% or more.

 

Bullet points in regards to the DMV hearing issues:

·  The DMV is not concerned with drugs. It is becoming increasingly common that individuals are arrested for a DUI because of drugs, including Marijuana. As shown above, the only issue in terms of being under the influence is whether the individual had a .08% or more.

  • You can still be convicted in court of a driving under the influence of drugs, but the DMV will set aside any DUI arrest based on drugs. They will not even conduct the hearing in most circumstances.

·  Generally, if you are going to put forth any defense based on science, you will need an expert witness to testify at the hearing. Defense’s such as rising blood alcohol, which deal with the time it takes alcohol to absorb into the bloodstream and how it affects the inability to pinpoint what your alcohol level was at the actual time of driving, require an expert witness.

·  The arresting officer generally is not present at the hearing, unless your DUI attorney decides to subpoena him/her. In my experience, it can be extremely advantageous to subpoena law enforcement to these hearings. You have a chance to ask questions of the District Attorneys main witness without the District Attorney present. It gives you a good idea of what testimony is to come in court.

  • The DMV does have the right to subpoena the officer, and will if there is some confusion regarding the police report.

If you are also being charged with a refusal, this will also be dealt with at the DMV hearing.  A suspension based on a refusal is for one year, with no restricted license.  At the DMV refusal hearings, the issues are:

  1. Did the peace officer have reasonable cause to believe you were driving a motor vehicle in violation of VC §§23152 (DUI), 23153 (DUI with Injury), or 23154(.01% or more while on DUI probation)?
  2. Were you lawfully detained while on DUI probation or lawfully arrested?
  3. Were you told that your driving privilege would be suspended or revoked for 1, 2, or 3 years if you refused to submit to or failed to complete a chemical test?
  4. Did you refuse to submit to, or fail to complete a chemical test or preliminary alcohol screening (PAS) test (while on DUI probation) after being requested to do so by a peace officer?

 

The issues are the same as a non-refusal with the additional elements that you were informed your license would be suspended and that you actually refused.  There are multiple issues with refusal hearings and there has been much case law in regards to what constitutes a valid refusal. The main point in refusal cases is that the refusal had to be legitimate. You had to clearly understand the that your license would get suspended. You had actually to refuse and the refusal had to be clear. A mere indecision in what test you wanted to take, or asking the officer if you have a right to an attorney, or if you have the right to refuse do not count. Unfortunately, a lot of refusal cases involve those types of facts. An effective DUI Lawyer knowledgeable in the law of refusal cases is necessary for a successful defense.

Resources:

California DMV Administrative Per Se Background

San Francisco DMV Driver Safety Branch

San Mateo County Court

San Mateo County DUI Schools

California DUI Information: