Photo By Jiri Hera
The Ten Day Window to Avoid a DUI Driver’s License Suspension
If you are arrested for DUI in California, the arresting officer will confiscate your California driver’s license and give you a pink piece of paper. This is your temporary license and hidden in the sleepy maze of fine print is a warning: YOUR LICENSE WILL AUTOMATICALLY BE SUSPENDED IN TEN DAYS … unless you or your DUI lawyer call a special office of the DMV and request a hearing.
Unfortunately, many people never get around to talking to an Orange County DUI attorney until after the ten-day window has expired. In this case the driver arrested for DUI loses their right to a DMV hearing and the DUI driver’s license suspension is automatically imposed, beginning 30 days after the date the driver was arrested for DUI.
The length of the DUI suspension will depend on whether you agreed to take a breath test or blood test and whether you have any prior DUIs orrefusals. The length of the DUI alcohol program you are required to take will also impact the length. The typical administrative suspension for a first-offense DUI is four months.
Out of state residents arrested for DUI here in California are allowed to keep their out-of-state driver’s license because it is the property of their home state. However, these drivers lose their California driving privileges the same as anyone who is arrested for DUI. If these drivers are caught driving in California while their privileges are suspended they face the same mandatory jail as a California resident.
The DMV Hearing for a DUI Suspension
If you or your Orange County DUI lawyer do request an Administrative Per Se hearing (“APS hearing”), there will be no automatic suspension. Rather, the DMV will schedule a DMV hearing with your DUI attorney. Also, your DUI lawyer will be entitled to a copy of all evidence against you. Your DUI lawyer will likely issue subpoenas (court orders) requiring the police and the Orange County forensics Lab for all audio and video recordings, as well as calibration, maintenance and use logs for any alcohol-testing instruments used in your case. Your DUI attorney may also subpoena traffic surveys, medical records, private security footage, and any other specific evidence that may help your case.
At the DMV hearing, the DMV bears the burden of proof of each element. However, the burden is only a “preponderance of evidence” and not “proof-beyond-a-reasonable-doubt”, like in court. Moreover, there is no right to a jury. In essence, the DMV hearing officer sits as both prosecutor and jury. You see, because this is a civil proceeding and not criminal, you don’t get the same rights as you do in court. This makes it very difficult to win a DMV hearing. However, we DUI attorneys do win them occasionally by thoroughly examining all the evidence.
It can take several months for your DUI lawyer to receive all the evidence subpoenaed. Once the hearing is held, the Hearing Officer must render a mailed decision within 30 days of the APS hearing to both the driver arrested for DUI as well as their Orange County DUI attorney. If the DMV hearing officer finds against the driver, the letter will give a future date for the Administrative Per Se suspension (“APS suspension”) to begin. The driver’s DUI attorney will then walk them through the arcane process of getting a restricted driver’s license as soon as possible. A restricted license allows a driver to go to and from the mandatory alcohol program and work. The driver can also do any work related driving.
If the driver’s Orange County DUI lawyer is successful at the hearing, the driver’s license suspension is “set aside”. This means that the APS hearing will not result in a suspension. However, the driver is not out of the woods yet. There is still the possibility of being suspended for being convicted of DUI in court.
The Other Hurdle Your DUI Lawyer Must Jump
If you are convicted of DUI in court, the court must report this conviction to the DMV. By law, the DMV must issue a suspension, called a “conviction suspension”, to anyone convicted of DUI. The conviction suspension is completely separate from the APS suspension discussed above, although the two suspensions can run concurrently. The DMV essentially has two bites at the conviction apple. The only way to avoid this suspension is to avoid a conviction for DUI.
A favorite tool of Orange County DUI attorneys is the “wet reckless”. If your DUI lawyer can convince the District Attorney to dismiss the DUI charge in exchange for your plea to reckless driving, then you can avoid a DUI conviction. Typically, your DUI lawyer will need to be sharp enough to spot some weakness in your case in order to get a wet reckless offer. For example, if your blood-alcohol level was real close to the legal limit, then your DUI attorney can threaten a “rising defense” at trial. (A defense claiming that although your blood-alcohol level was over the limit at the time of the test, it was LOWER at the time of driving) Because this can be an effective defense at trial, the DA may offer a wet reckless to avoid a possible loss at trial.
Only if your DUI lawyer can win the DMV hearing and avoid a DUI conviction in court will you avoid any suspension altogether. However, if you are suspended, your DUI lawyer can time the suspensions so that they run together and help you get a restricted license as soon as possible.
Free Telephonic Consultation with an Orange County DUI Attorney
If you would like to speak directly to an experienced DUI attorney in Orange County, call The Law Office of EJ Stopyro at (949) 559-5500. The consultation is free and completely confidential. Our main office is located at 32072 Camino Capistrano, 2nd floor, San Juan Capistrano, CA 92675. We have meeting offices throughout the county.