DMV DUI Suspended License Hearing
The arresting officer must complete an “Officer’s Statement-Admin Per Se” after confiscating the arrestee’s license and giving the individual an order of suspension. On this document, the minimum requirements of the DMV to suspend a license are listed:
- Probable cause
- Breath test results
- Observations of driving (or statutory exceptions)
The officers present (the arresting officer and, sometimes, the breath machine operator) then sign the document under oath. While the requirements are often ignored with no consequences to the officers, the document is then meant to be forwarded to the Department “on or before the end of the fifth ordinary business day following the arrest.” [Veh C § 23158.5(c)]
Scheduling an ALS Hearing
A very important thing to remember is the fact that after ten days of the arrest you waive your right to a hearing. This means that you, or preferably your attorney, must call the DMV’s Driver Safety Office to demand a hearing. If an attorney is not available to call for you, it is important that you ask the name of the person you speak with. Do not talk about the reasons you are challenging the suspension. The main Drivers Safety Offices in San Francisco are located at 1377 Fell St., 2nd Floor, 94117-2296.
It is often “encouraged” by the employees at these offices for individuals to accept a hearing over the telephone. Or even, they will just arrange the hearing by telephone without informing the individual requesting the hearing, or of their option to request a hearing in-person. If counsel plans to subpoena the officer, it would be wise to contact the Driver Safety office and reschedule a hearing in-person.
A “stay,” or extension, can be requested by your lawyer should the hearing be scheduled after your 30-day temporary license expires [Vehicle Code § 13558(d) and (e)]. This is not uncommon because the DUI suspension caseloads tend to be very heavy, making it difficult for a speedy hearing.
The ALS Hearing
Before the hearing takes place, an “administrative review” of the case will take place. This is to certify that the evidence (i.e. the arresting officer’s paperwork) is in compliance with the necessary requirements for an administrative suspension. Unfortunately, quite often these reviews are overlooked by DMV clerical personnel.
The hearing time and date will be arranged between the counsel and the department. The location is designated by the department “as close as practicable to the place where the arrest occurred, unless the parties agree to a different location.” [Veh C § 13558(b)] A request for transfer can be made by the client and counsel if the location is not convenient for them. If the live testimony of the officer or other witnesses is not necessary, the department will usually grant this request. If council wishes to subpoena the arresting officer, witness fees will more than likely increase.
While the ASL hearing is similar to a miniature trial, there is no jury and no judge. A “hearing officer”, who serves as both as the prosecutor and the judge, is an employee of the DMV and is typically legally untrained. This means that the officer can essentially object to a claim made, and then rule on his own objection! Testimony can be presented by each side; the hearing officer usually using police reports, laboratory reports, and the officer’s sworn affidavit as evidence. There is no right to the Fifth Amendment at these hearings, so it is often better that the accused is not present. Otherwise, the hearing officer can use the individual as a witness to testify against themselves. If the license suspension is maintained, an appeal can be filed at the DMV in Sacramento, California or to the courts (or both) by filing a “writ”. A final decision, however, is typically not given for days, or sometimes weeks, after the hearing takes place.
Administrative vs. Criminal
Court proceedings will not have an affect on an ALS hearing unless the accused is found innocent on the .08% charge or there is an acquittal. The DMV will not be concerned with the second DUI charge or a change in plea (i.e. decreased offense such as reckless driving). However, it should be noted that success at an ALS hearing will not effect the case in court.
Representation for Your Hearing
You are strongly encouraged to appoint an attorney to represent you at an ALS hearing for a few reasons. Defenses at ALS hearings can be more technical than in the courts. Details on bureaucratic or procedural errors can often be enough to lose a hearing. The fact that an independent judge is not present to provide protection to you is, perhaps, one of the greatest reasons it is unwise to represent yourself. Also, public defenders are not an option because they are not criminal in nature.
