DUI Suspects Face a Confusing Array of Administrative and Criminal Proceedings </span>

Defendants facing DUI charges are often confused by the dual track of the DMV hearings and the criminal court trial for DUI. Often referred to as the “stop and snatch” law, the Administrative Per Se (APS) suspension law is intended to promptly remove drunk drivers form the road. However, due process concerns (the right to a hearing) have resulted in a 30-day temporary license being provided to the defendant along with each APS order.

After confiscating the arrestee's license and serving them with an order of suspension, the officer will complete an "Officer's Statement-Admin Per Se" form. This document sets forth the bare minimum facts necessary for the DMV to suspend the license: observing of driving, probable cause, and blood alcohol test results.

The DMV hearing is an administrative proceeding regarding the defendant’s driving privilege and the circumstances surrounding the arrest, not whether the defendant is innocent or guilty of a criminal act.
The defendant has 10 days after being served with the notice of suspension or revocation to contact a local branch of the DMV's Office of Driver Safety and request a hearing. If a requested hearing cannot be scheduled before the 30-day temporary license expires, counsel can obtain a stay of the suspension if the request for a hearing was made within 10 days of the notice.

If the defendant took a blood, breath or urine test, the issues at the DMV are confined to whether:
1) The peace officer has reasonable cause to believe the defendant was driving a motor vehicle under the influence of alcohol or drugs (often established after another purported reason for the traffic stop).
2) The defendant was placed under lawful arrest, and
3) The defendant was driving a motor vehicle with a 0.08% or more by weight of alcohol in your blood.

Defendants are not afforded the same rights at DMV hearings as they are in court. However, an effective defense can prevail at these hearings in some cases, and the preparation and discovery done to prepare for the hearing is useful for pleading or going to trial in the court case. The penalties for DUI are tough, and defendants should consider retaining legal counsel before gambling on going to a DMV hearing or court without an attorney.

Mark Malachowski is a San Francisco attorney in who provides DUI defense.
(415/983-0717 or www.marklawdui.com)

MARK MALACHOWSKI
Attorney at Law
Law Office of Malachowski and Associates

760 Market St.
Suite 947
San Francisco, CA 94102

Phone: (415) 983-0717
Fax: (415) 986-8068
Email: Help@marklawdui.com

Reasonable Fees - Payment Plans Available - Evening & Saturday Appointments

To speak to an attorney call:

(415) 983-0717

An aggressive, effective defense is your best bet on protecting your rights.

A loose tie or a rumpled shirt may be cited as evidence that you are drunk. Even your attitude, whether you are friendly, scared, annoyed or nervous, will be used as evidence against you. Every word you say to the police will be paraphrased or twisted into a confession. The prosecutor will use your falling into the trap of not properly following instructions, such as by using your arms to balance yourself, which is a normal physiological response, to nail the lid shut on his case. Even looking for your license and registration will be used against you.

Blood alcohol test methods are flawed, and are subject to interferences and operator error. The instrument most often used, the breathalyzer, measures a methyl group rather than ethyl alcohol (ethanol) itself, and thus the reading could be a result of a different chemical altogether. High blood alcohol levels may not be indicative of alcohol consumption. Experiments have shown that a zinc deficiency can double the amount of alcohol found in blood, thus calling into question whether blood alcohol is a reliable measure of consumption.

Do not gamble on going to court without an attorney.