DUI Suspects Face a Confusing Array of Administrative and Criminal Proceedings

Dual Track DUI Hearings are Double Trouble

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.

DMV Hearing Based on Officers Statement

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.

You Have 10 Days to 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.

Why You Need A DUI Lawyer Before This Hearing

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 throughout the greater San Francisco Bay Area.

Call (415) 983-0717 or (650) 200-7393