DMV Hearings

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Many drivers are unaware that a Bay Area DUI arrest actually generates two separate cases – one in criminal court and a completely separate administrative case at the California DMV. Both cases require an aggressive defense, but the DMV case is extremely time-sensitive – you have just 10 calendar days following your Bay Area DUI arrest to request a DMV hearing, or your driver’s license will automatically be suspended on the 30th day following your drunk driving arrest. Fortunately, the experienced Bay Area DUI attorneys of The Kavinoky Law Firm are here to help. We can request your DMV hearing for you and we’re ready to do everything possible to fight for your driver’s license.

The DMV hearing that follows a Bay Area DUI arrest is called an administrative per se (APS) hearing, and its purpose is to determine whether your driver’s license should be suspended. It’s completely separate from the criminal court case that stems from your Bay Area DUI arrest (although the DMV can also suspend your driver’s license as part of the punishment associated with a drunk driving conviction in criminal court if you are convicted of certain offenses – this is yet another reason why it is so critical to have an experienced Bay Area DUI lawyer involved, so they know how to avoid this.) If you fail to request a hearing or lose your hearing, your driver’s license will be suspended. If you win your APS hearing, the DMV action will be “set aside” and you’ll be allowed to keep your driver’s license.

The issues at stake in a DMV hearing following a Bay Area DUI arrest depend on whether or not you took a chemical test of your breath or blood to determine your BAC. If you took a chemical test following your DUI arrest, the DMV hearing officer will determine three facts: whether the police had probable cause to stop you, whether your DUI arrest was lawful, and whether your BAC was .08 percent or greater. If the DMV hearing officer finds all of these facts to be true, your driver’s license will be suspended.

If you refused a chemical test following your Bay Area DUI arrest, the central issue at your DMV hearing will be whether you were properly advised of the consequences of doing so, and still refused the test. Unfortunately, driver’s license suspensions following chemical test refusals are substantially longer than those imposed in drivers who submitted to the test.

While it may appear that the DMV will suspend the driver’s license of anyone arrested for Bay Area DUI, this is far from the truth. There are many defenses at a DUI-related DMV hearing, and the key is to be represented by a law firm who knows just how to defeat the DMV in its attempt to suspend your driving privileges following a drunk driving arrest. The length of the driver’s license suspension following a lost DMV hearing also depends on the number of drunk driving convictions the individual has and when they occurred. California has a 10-year lookback period for DUI offenses, meaning that if you’re arrested for drunk driving within 10 years of a prior arrest and conviction, your latest case will be treated as a second-time driving under the influence offense. If the second arrest occurred more than 10 years after your prior arrest and conviction, it will be treated as a first offense. DUI offenses are counted from arrest date to arrest date.

The consequences of losing your DMV hearing following a Bay Area DUI arrest are as follows:

First offense DUI, 21 or older, with a chemical test – four-month suspension or a 30-day “hard” suspension followed by a five-month restricted license that allows travel to work and other essential destinations. Driver must be enrolled in alcohol education school.
First offense DUI, 21 or older, with a chemical test refusal – one-year “hard” suspension (no restricted license available).
Under 21, BAC of .01 percent or greater (zero tolerance) – one-year suspension, restricted license available only to those who demonstrate “critical need” and have no public transportation available.
Second offense DUI, 21 or older with a chemical test – one-year suspension.
Second offense DUI, 21 or older with a chemical test refusal – two-year suspension.
Third offense DUI, 21 or older with a chemical test – one-year suspension.
Third offense DUI, 21 or older with a chemical test refusal – three-year suspension.

The DMV APS hearing that stems from a Bay Area DUI arrest is a civil matter, not a criminal case, so there is a lower standard of proof than is required in criminal court. Unlike in criminal court where you must be found guilty beyond a reasonable doubt in order to be convicted, the standard at a DMV hearing is known as a “preponderance of the evidence,” which is often described as “50 percent plus a feather.”

DMV hearings are extremely complex and technical, and typically involve paperwork such as police reports and chemical test results. Live witness testimony doesn’t always occur, but your DMV hearing offers an unusual opportunity to your Bay Area DUI attorney to call the officer who arrested you as a witness. There are no depositions in criminal cases, so this typically represents your attorney’s only opportunity to question the arresting officer before your Bay Area DUI case goes to court. This can be an effective way to develop impeachment evidence against the arresting officer, since there is no prosecutor present at the DMV hearing to help prepare the officer. However, whether or not to call the officer is a complex question that varies depending upon the unique facts of every drunk driving case, and should be made with the help of an experienced Bay Area DUI defense lawyer.

Many drivers arrested for Bay Area DUI fear that there is no hope of keeping their driver’s licenses, but that’s simply not the case. It’s entirely possible to save your driver’s license following a Bay Area DUI arrest with the help of a skilled defense lawyer. The experienced Bay Area DUI attorneys of The Kavinoky Law Firm have a long track record of protecting the driving privileges of our clients. We have a dedicated DMV Unit who have achieved countless successes at the DMV for drivers accused of California DUI. If you’re facing a Bay Area DUI charge, don’t hesitate – contact a top Bay Area DUI attorney from The Kavinoky Law Firm today at 800.617.2934 for a free consultation.