DMV HEARING IN CALIFORNIA
Arrested for DUI?
In Calfornia, when a person is cited for an Alcohol DUI, there is a separate process that begins right away at the DMV. The arrestee’s driver’s license will be confiscated upon arrest, and he/she will be given a temporary license (pink slip) that is valid for 30 days (no restrictions). Unless a hearing is requested with the DMV within 10 days (weekends count), the person will not be able to drive beyond the 30 days.
NAVIGATING THE COMPLEX MAZE OF DMV PROCEEDINGS AFTER A DUI ARREST
Protect Your License with Expert Legal Supports
Understanding the Dual Pathways: Criminal and Civil/Administrative Proceedings After a DUI arrest in California, you find yourself at the crossroads of two separate legal proceedings: a criminal court case and an administrative DMV proceeding. Both of these processes carry significant potential penalties, and they must be skillfully navigated to preserve your ability to drive..
The Crucial 30-day Window: Temporary License and Rights to a Hearing Upon a DUI arrest with a BAC of 0.08% or higher, your California Driver’s License will be replaced with a 30-day temporary license – a pink slip that serves as your formal notification and grants you the right to request a DMV hearing within 10 days. If you miss this window, your license will enter suspension status – a penalty that could be compounded by any suspension arising from your court proceeding.
Deciphering the DMV Hearing: Complexities Lurking Beneath the Surface While the DMV hearing issues may seem straightforward, they are anything but. An expert DUI attorney can uncover vital nuances that may significantly impact your case – from examining the officer’s procedure during your arrest to analyzing the certification of chemical test results.
Advantages of a Skilled DUI Attorney: Procedural Maneuvers and ‘Set Asides’ A seasoned DUI attorney can make all the difference, identifying procedural weaknesses that can result in a ‘set aside’ or postponement of your suspension. Even when the facts of your case seem stacked against you, strategic legal maneuvers can provide a crucial leverage.
License Suspension: Stay the Course Even as your hearing proceeds, an experienced DUI attorney can help you request a stay of the suspension of your driver’s license, allowing you to continue driving until your case is decided – a process that could stretch out several months.
Myths and Misconceptions: Court Representation is Not Enough Contrary to popular belief, even winning a court case does not translate to success at your DMV hearing. A comprehensive legal strategy that addresses both the court proceeding and DMV hearing is critical to safeguard your ability to drive.
Repeat Offenders: Prior Convictions and their Implications With prior DUI convictions or adverse DMV rulings, it becomes even more crucial to contest the DMV Proceeding aggressively. Though your past convictions may not be relevant at the hearing, they can precipitate longer suspensions if you lose.
DUI Probation If you’re on DUI probation and a police officer determines that you drove with a 0.01% BAC or higher, you must request a DMV hearing within 10 days, even when you don’t face a new DUI charge. Contact the Law Office of “The DUI Specialist” Jeff Yeh today to protect your license and secure competent, effective representation at your DMV Hearing.
In California, if you lose a DMV Hearing, you may face the following penalties:
Just being arrested for a DUI will trigger automatic consequences on your ability to drive. Actions taken by the court and DMV can be overlapping and difficult to navigate.
If you lose a DMV Hearing that doesn’t involve a refusal, you will be allowed to continued driving on a restricted basis. However, you will also need to be enrolled in an alcohol program that lasts anywhere from 3-18 months in order o maintain your ability to drive.
Ignition Interlock Device
The IID device will randomly require a alcohol-less breath sample for the car to start and continue runing. It is often required after a DUI conviction and/or an adverse ruling at the DMV Hearing.
If convicted of a first DUI, the mandatory period of probation is 3 years. Repeat offenders may face up to 5 years of probation. This probation is informal (ie. no probation officer) unless the DUI is a felony. During probation, even driving with a 0.01% BAC can trigger a probation violation and/or license suspension.
DMV HEARING DEFENSE STRATEGIES
Don’t Assume You Have to Plead Guilty
1. Mouth Alcohol – breath machines are designed to measure air, not liquid. When you drink alcohol, some of it gets stuck in between your teeth. Likewise, when a person burps, liquid alcohol gets mixed up with saliva. While this type of mouth alcohol may seem minimal, it certainly isn’t so minimal for a breath machine that is designed to measure the alcohol in a person’s breath, not saliva. What makes it worse is that police officers are known for requesting that you blow into a breathalyzer as hard as you can for as long as you can. Anyone who has played a trumpet or blown into a balloon knows what happens when you blow into something forcefully—saliva gets spit out. In the case of a DUI, the BAC measured can be many times higher due to the presence of mouth alcohol.
2. Rising BAC – depending on the length of time and amount of consumption, a person’s Blood Alcohol Level can continue to rise several hours after the last drink. For example, suppose it is 11pm and you just had your last drink and you are driving home, you could be at a 0.06%, but by 12am or 1am, when you are administered a chemical test at the police station, you may register a 0.09% or higher. In other words, the results obtained simply do not reflect your BAC at the time of driving.
3. Absorption – as mentioned above, what makes DUI illegal is the alcohol in the bloodstream that impairs the brain. The problem with breath machines is, it works by measuring BREATH and converting it to a BLOOD Alcohol reading. So if the “breath” reflects a 0.10% BAC, but the “blood” actually contains only a 0.03% BAC, then you can see how an innocent person gets convicted of DUI. The fact is, when a person is still absorbing alcohol and blows into a breathalyzer, the results will ALWAYS read higher, sometimes 3-5 times higher! The reason is, the person is still absorbing alcohol, a process that can take up to several hours especially if there is food in the stomach. During absorption, the alcohol consumed has not had sufficient time to fully enter the bloodstream, so the “breath” alcohol measured can be a far cry from the “blood” alcohol, which is what affects the brain. Remember that DUI statutes refer to “BLOOD Alcohol Level,” not breath!
Blood tests are generally more accurate than breath tests, because blood is measured directly and no conversion from breath is necessary. However, in addition to being vulnerable to the Rising BAC attack (see above), blood samples are often not maintained properly, and the results can be just as skewed. Consider the following: 1. Fermentation – after blood is drawn and put in a vial, Title XVII requires that an anticoagulant and a preservative be placed in the vial, which must then be shaken. The anticoagulant prevents the blood from clotting, and the preservative prevents fermentation, whereby the blood goes bad—much like sour milk —and the alcohol content multiplies. The problem is, most blood vials in DUI cases sit in the police station un-refrigerated for several weeks before someone even gets to the task of evaluating it. This is coupled with the fact that law enforcement is often unfamiliar with the requirements of Title XVII, and do a poor job documenting the chain of custody of the vial. This means that the BAC obtained from the “contaminated” sample can be much higher than the BAC of the same sample the day it was drawn from your arm!
Most people who are arrested at a DUI Checkpoint never question the legitimacy of the Checkpoint itself. The fact is, Checkpoints have to be properly set up and maintained, or else the stop (and the subsequent DUI) is illegitimate.
For example, a Checkpoint must be set up at a time and place that makes sense, yielding enough DUI arrests to outweigh the burden to the public. Moreover, signs must be set up to warn drivers in advance, with escape route(s) for drivers who wish to avoid it.
Remember, it is up to the the state to prove that the Checkpoint is legit (once the defendant has raised the issue). Never assume that it is!
DMV HEARING DEFENSES
Effective Defenses against DMV Hearing
1. Challenging Breath Test Results
When a person is still absorbing alcohol, the breath machine will ALWAYS read to high. It is up to your lawyer to show the discrepancy between reality and the reading.
2. No Driving Defense
If there’s no evidence you were operating the vehicle near the time of the arrest, we challenge the fundamental premise of your DUI charge.
3. Illegal Arrest or Stop
We can contest the legality (probable cause) of your DUI stop or arrest, which could lead to dismissal if your rights were violated.
4. Rising Blood Alcohol Level
Alcohol absorption rates vary based on race, sex, time/amount of consumption..etc We argue that your BAC may have risen between the time of driving and the time of testing.
5. Mouth Alcohol
We highlight factors like belching or acid reflux, which can skew breathalyzer results by releasing alcohol from the stomach into the mouth during breath testing.
6. Biased Field Sobriety Tests
We examine the administration of field tests for bias or error that could compromise their validity.
7. Faulty Breathalyzer Calibration
We scrutinize the maintenance and calibration records of the breathalyzer used, disputing results from improperly calibrated devices.
8. No Miranda Warning
Miranda must be given if there is post-arrest interrogation. We pinpoint the time of the actual arrest/cuffing and try to exclude statements made thereafter absent Miranda.
9. Blood Fermentation
If blood vials lack sufficient preservatives, the blood can ferment, leading to higher BAC readings.
10. Medical Conditions
Certain medical conditions, such as diabetes, hypoglycemia, auto-brewery syndrome, or gerds (acid reflux), can produce falsely high BAC readings.
11. DUI Checkpoint
A DUI checkpoint must be properly set up and maintained, otherwise the stop itself lacks probable cause.
12. Forced Blood Draw
Fedral law requires a warrent for a blood draw unless there is consent. Lacking consent / warrent means the blood result can be excluded.
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Freaqent Asked Questions
I just picked up a DUI and I blew over the legal limit. I’m guilty, so what’s the point of hiring a lawyer?
First of all, being over the legal limit is just the starting point, and all DUI cases that are won involve people who are at or above the legal limit (or they refused). If you were under the legal limit, you wouldn’t even have been cited. Second, just because you feel you are guilty, it doesn’t mean you need to have the full brunt of the consequences crash down on you. With proper representation, things like jail time, license suspension, fines, probation, alcohol school…etc. can be reduced or eliminated, guilty or not.
If I hire a lawyer, is it possible that I will never need to appear in court?
Yes. If you are facing a misdemeanor DUI and nothing else, a lawyer can appear on your behalf without you throughout the entire proceeding. At the DMV, if your testimony is required, you can testify telephonically. If there are any forms you need to sign for court, your lawyer can mail these to you and have you sign in front of a notary. All paperwork that you need can be mailed to you by your lawyer.
I received a letter or voice message from law enforcement asking me to contact them regarding an incident. What should I do？
You should absolutely NOT contact law enforcement yourself. Most of the time this kind of letter is sent when there is not enough evidence yet to charge you, and they are hoping you will help them out by incriminating yourself. Always contact a lawyer first, and if necessary, speak only through counsel.
I was arrested for DUI. Do I need SR-22?
SR-22 is just another term for “Proof of Insurance.” Your insurance company needs to file it for you for 3 years only upon conviction of a DUI.
CALIFORNIA DMV HEARING ATTORNEY JEFF YEH
Call THE DUI SPECIALIST
If you’ve been charged with driving under the influence, it’s crucial that you reach out to a DUI specialist right away. As a dedicated DUI lawyer, I have personally handled thousands of drunk driving cases, leveraging my expertise to defend my clients effectively. I know the prosecutors and Judges and how they conduct their business in the various courts throughout California. Schedule your 1 HR free consultation today by filling out the contact form below or by calling me directly at (213) 446 – 2495.