What should a DUI Defendant expect before, during and after a DMV Administrative Per Se (Admin Per Se) hearing, and what are your options if the hearing officer’s decision is adverse?by Attorney Felicia Woods-Yates on 03/17/15
What should a DUI Defendant expect before, during and after a DMV Administrative Per Se (Admin Per Se) hearing, and what are your options if the hearing officer’s decision is adverse?
It is worth noting again, that any DMV administrative action is independent of any penalties imposed by a Superior Court for a conviction of the same exact DUI offense. While some Due Process is provided to a Defendant (i.e. – the issuance of a 30-day Temporary License on pink paper), you are not given the typical Constitutional protections you would find in a Court of Law.
One thing to be acutely aware of when facing a DMV Admin Per Se proceeding, is that the DMV does not factor in your need to drive a motor vehicle (i.e. – for employment or education purposes). The only areas a DMV hearing officer cares about is as follows:
For Defendants who took and completed a chemical test pursuant to California’s Implied Consent Law, they would be facing these issues…
- Was there Probable Cause (Reasonable Suspicion by the citing officer) to believe you were driving a motor vehicle in violation of California Vehicle Code sections 23152, 23153, or 23154?
- Were you lawfully detained while on DUI probation or lawfully arrested?
- Were you driving a motor vehicle when you had a 0.08% or higher Blood Alcohol Content (BAC) level?
- If you were driving a commercial vehicle, the level would drop to a 0.04% BAC
- If you were on DUI Probation, then the level would drop even further, to a 0.01% BAC
For Defendants who refused or failed to complete a chemical test (breath or blood), you would be facing these issues:
1. Was there Probable Cause (Reasonable Suspicion by the citing officer) to believe you were driving a motor vehicle in violation of California Vehicle Code (CVC) sections 23152, 23153, or 23154?
2. Were you lawfully detained (stopped or pulled over by a law enforcement officer) while on DUI probation, or lawfully arrested?
3. Were you told by the citing officer that your driving privilege would be suspended or revoked for 1, 2, or 3 years (Note: this length would depend upon your 10-year driving record) if you refused to submit to or failed to complete a chemical test?
4. Did you actually refuse to submit to, or fail to complete a chemical test (preliminary alcohol screening (PAS) test while on DUI probation), after being requested to do so by a peace officer?
At the conclusion of the hearing process, the DMV Hearing Officer (who is neither a judge nor an attorney at law) will render a decision in writing which will result in your license suspension either being Sustained (Upheld), or being Set Aside (Dismissed).
Should your license suspension be Sustained, you have the option to Appeal, or to request a Restricted Non-Commercial Driver’s License after serving a thirty (30) day “hard suspension” (not operating a motor vehicle for any reason whatsoever).
To be eligible for such a Restricted non-commercial License, you must meet the following criteria:
- This is your first offense.
- You completed a chemical test.
- You were 21 years of age or older (pursuant to CVC section 13353.7).
- Your driving privilege is not suspended or revoked for some other reason.
- If approved, then you will be issued a “to/from/during course of employment and DUI program restriction” license., which will be valid for five (5) months from the issuance date. Since a first time offender receives a suspension period of only four (4) months, this restricted license would adequately cover you until the conclusion of your original suspension period.
To be eligible for a Critical Need License Restriction for drivers Under the Age of 21 (see CVC section 13353.8), you must meet the following criteria:
· You completed a PAS or chemical test with a BAC level of 0.01% or more.
· You have a critical need to drive (a specific critical need condition exists, and all other transportation is inadequate).
· Only first offenders who completed a PAS or other chemical test are eligible to apply for a Critical Need restricted driver’s license.
· You must show the DMV that public transportation in your area is not sufficient to accomplish your transportation to and from work, to and from school, or you happen to be the primary means of transportation for a family member to medical appointments.
· If approved, the DMV will issue a restricted license in lieu of a one-year full suspension, based on a “critical need” to drive.
To actually apply for a Restricted non-commercial License, you must do the following, and wait to apply until after the thirty (30) day “hard suspension” has run its course:
- Enroll in a licensed DUI First Offender program (notify the program provider that you intend to apply for a restricted driver license).
- Ask the program provider to file a Proof of Enrollment Certificate (DL 107) in a licensed DUI First Offender program with the DMV (pursuant to CVC section 23538(b)).
- File proof of financial responsibility (i.e., this is known as an “SR 22” or Insurance Proof Certificate from a bona-fide auto insurer).
- Pay a $125 reissuance fee.
To actually apply for a Critical Need License Restriction, you must meet the following criteria, and wait to apply until after the thirty (30) day “hard suspension” has run its course:
- Pay a $100 reissue fee to DMV.
- File proof of financial responsibility (SR 22).
- Maintain proof of financial responsibility for three years.
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.