What should you be aware of regarding the California DMV Administrative Per Se process, immediately after being arrested or cited for a DUI violation?by Attorney Felicia Woods-Yates on 01/13/15
What should you be aware of regarding the California DMV Administrative Per Se process, immediately after being arrested or cited for a DUI violation?
When a person first gets cited or arrested for a DUI, the law enforcement officer(s) will issue an Order of Suspension and Temporary License (a pink piece of paper with instructions). This will serve as a temporary license, good for 30 days from the date of your DUI incident. However, you must take action right away to be sure the California DMV (CA DMV) is notified of your intent to have an administrative hearing on the pending license suspension.
Also known as the "Admin Per Se" proceeding, an individual cited or arrested for a DUI or DWI must take action within ten (10) calendar days (which includes weekends and holidays) of receiving their citation by contacting the CA DMV by telephone and scheduling an Admin Per Se hearing. It will normally be set for thirty (30) to sixty (60) days from the time of your request. Failure to make a timely request, will result in an automatic suspension of your driving privilege, and a forfeiture of your right to a DMV hearing!
- If you are 21 years of age or older, did not refuse a chemical test, the results showed a Blood Alcohol Content (BAC) of at least 0.08%, and this is your First Offense, your license would be automatically suspended for a period of Four (4) Months.
- If you are under 21 years of age, did not refuse a preliminary alcohol screening (PAS) test, the results showed a BAC of at least 0.01%, and this is your First Offense, your license would be automatically suspended for a period of One (1) Year.
This legal process is completely separate and apart from any DUI charges you may be facing in the Superior Court, and is governed by its own rules and regulations. If you are an out-of-state licensee, it is very important to realize that because of the Interstate Driver's License Compact, DUI and DWI arrest information is shared between most states in this country.
The Admin Per Se hearing will give you and your defense attorney an opportunity to prove to the DMV that a license suspension is not justified. This can be accomplished by successfully contesting any of the following elements: (1) the Probable Cause or Reasonable Suspicion for the traffic stop, (2) the Lawfulness of the Arrest, or (3) whether or not you had a BAC (Blood Alcohol Concentration) of 0.08% or higher, at the time you were driving. The hearing is normally conducted via telephone by a DMV Hearing Officer, and is tape recorded.
There are a multitude of defenses that might be presented by your attorney to rebut the elements listed above. You are also allowed to present legal arguments in writing (i.e. case law or statutory authority) prior to your DMV hearing, present witnesses on your behalf, and even subpoena the citing law enforcement officer. By the way, the CA DMV has the Burden of Proof (based upon a Preponderance of the Evidence) at an Admin Per Se hearing.
Since everyone's DUI incident is unique to that individual and the specific circumstances, you should consult with a competent defense attorney to determine your best course of action. Felicia Yates has been practicing law for over 30 years in California and can be reached at (760) 326-5297, and found at Law Offices of Felicia Yates & Associates.