In addition to the criminal prosecution you will be facing if you have been arrested for DUI, you will be dealing with the Department of Motor Vehicles. Although based on the identical set of facts and circumstances, the DMV proceeding is significantly different in several critical ways.
DMV License Suspension
If your post-arrest breath or blood test reveals a BAC of 0.08 percent or more, or if you have refused to submit to chemical testing, your driver’s license is automatically confiscated by law enforcement and you are issued the following documents from the DMV:
- An explanation of the laws governing the DMV and DUI
- A notice of the immediate suspension of your driver’s license
- A temporary license valid for 30 days
The length of the suspension may vary depending on whether it is a first or subsequent offense or if a refusal is involved, but the most important point to be aware of is that the suspension will go into effect in 30 days unless an administrative hearing to contest the suspension is requested within 10 days.
Requesting the Hearing
If you have hired a DUI attorney, he or she will handle the arrangements, but if you have yet to retain counsel, you may contact the DMV Driver Safety Office yourself to request your Administrative License Suspension hearing. Situated throughout California, Driver Safety Offices may be found locally in the City of Orange, City of Commerce, Oxnard, El Segundo and San Bernardino. The 10 day timeline is strictly enforced.
The APS Hearing
Importantly, the Constitutional protections that are relevant to your criminal case are inapplicable at the APS hearing. Courts have ruled this to be an administrative action and consequently issues such as the presumption of innocence, concerns of double jeopardy (both the criminal case and the DMV can independently suspend your license) and Fifth Amendment privileges regarding self-incrimination are not factors.
The APS hearing is conducted by a DMV employee who acts as both judge and prosecutor. Typically, the evidence consists of police reports, laboratory reports and the affidavit of the arresting officer.
Other Considerations
Because the DMV hearing is not criminal in nature, there is no right to have a public defender, but you do have the right to representation. Due to the technical nature of most issues in APS hearings, your chances for a set-aside of the suspension are greatly enhanced if you retain an experienced DUI attorney. However, a set-aside at the APS hearing will have no impact on the District Attorney’s case against you; it will proceed independently of the DMV results.
