There are two separate and distinct proceedings that occur with every alcohol related DUI arrest. First, the Department of Motor Vehicles (DMV) will take action against your driving privilege by trying to suspend your license. Second, the District Attorney/City Attorney will try to punish you for breaking the law by filing criminal charges against you in Court. The following is a summary of each proceeding.
Keep in mind that even though both the DMV and Court proceedings arise from the same DUI arrest, each proceeding is independent from the other and each is handled differently.
THE DMV ADMINISTRATIVE PER SE (APS) HEARING
When you were arrested, the arresting officer would have taken your driver license from you and should have given you a “pink” document called the Administrative Per Se Suspension/Revocation Order and Temporary License. This is a 30-day temporary license that you must carry with you when you drive. It is not a restricted license. It is a temporary license given to you so that you can continue to drive for 30 days. With this temporary license, you may drive without any restrictions. It is also a notice to you that your license will be suspended in 30 days, and that you have 10 days to preserve your DMV hearing rights to contest the license suspension.
Requesting DMV Hearing:
You have 10 days of receiving the pink temporary license/ order of suspension to request an Administrative Per Se (APS) hearing. The purpose of the APS hearing is to contest the suspension of your driving privilege.
If the APS hearing is scheduled outside of 30 days from the arrest date (and it usually is), all action against your driving privilege will be “stayed” or stopped. No action against your driving privilege will occur until the APS hearing process is completed and the DMV rules on your case.
You will receive an additional temporary license in the mail from the DMV before the Pink temporary license expires. You will be able to continue to drive normally until the DMV hearing process has been completed and the DMV issues their ruling, which is the Findings and Decision.
The APS Hearing:
The APS hearing will be held at one of the regional DMV Driver Safety offices before a DMV hearing officer, who is a DMV employee.
If you were arrested in Riverside or San Bernardino County, your hearing will be held at the San Bernardino DMV Driver Safety Office. If you were arrested in a different county a different Driver Safety Office will be assigned.
In a typical alcohol DUI case, the DMV hearing officer has to decide three issues:
- Were you driving?
- Were you lawfully arrested?
- Was your Blood Alcohol Concentration .08% or higher at the time of driving?
To suspend your driving privilege, the DMV must prove all three of these issues with evidence that is admissible and reliable.
In order to win this hearing your lawyer must show that the evidence does not support one or more of the above issues. This is done by: gathering all of the evidence, analyzing it to determine the strengths and weaknesses of the evidence, and contesting the DMV’s case, and presenting affirmative evidence where applicable.
There are factual, legal, and technical issues that must be examined. The officer’s arrest report, sworn statement, as well as the chemical test results – must all be reviewed.
In addition, various records should be subpoenaed – records related to the initial contact with the officer, the DUI investigation, chemical test results, and other evidence. This may include documents, audio/video recordings, as well as live witnesses. Because DUI cases differ, the evidence needed for each DMV hearing also may differ. You may also be needed to testify at the DMV hearing.
After the conclusion of the DMV APS hearing, the DMV hearing officer will issue the “Findings and Decision” setting forth the DMV’s ruling. A “set aside” means that the driver has won and there will be no license suspension. If the driver loses the hearing, the Findings and Decision will advise when the suspension of the driver license will go into effect and for how long. Typically, the suspension will start several days after the Findings and Decision is received.
THE CRIMINAL CASE (Misdemeanor)
Typically, after being arrested the driver is released on their own recognizance (OR) after spending a few hours in jail. In addition, the driver is given a Notice to Appear that they signed promising to appear in Court on a specific date. The Court date is the Arraignment hearing which is the first court appearance.
At the Arraignment hearing you are formally advised of your constitutional rights and the charges filed against you by the District Attorney. If you plead GUILTY at the Arraignment hearing, you will be convicted and sentenced at that time. This is usually not a smart thing to do as none of the evidence against you has been examined at this point. In other words, if problems with the government’s evidence exists, you will never know about it.
Pre-Trial Hearings/ Discovery Stage/ Motions:
If a Not Guilty plea is entered at the Arraignment hearing, a Pre-Trial Hearing will be set about 4 to 6 weeks into the future. The purpose of Pre-Trial hearings is to have the opportunity to gather all of the evidence related to the DUI case – evidence relating to the initial stop, the DUI investigation, as well as the chemical test results. The purpose of gathering all of the evidence is to analyze it and look for the strengths and weaknesses of the case against you. In addition, negotiations are usually happening with the prosecutor to try to resolve the case without having to go to trial.
The Pre-Trial /Discovery stage can take 4 to 6 months to complete, and sometimes longer depending on the case. Thus, there will likely be multiple Pre-trial hearings.
The goal in resolving a DUI case is to: (1) find a way to get the case dismissed, (2) if a dismissal is not an option, try to get the case reduced to a lesser charge that is not a DUI, and (3) if a reduction to a lesser charge is not an option, then the goal is to negotiate the best deal considering the strengths and weaknesses of the evidence. If the case cannot be settled, then a Trial is the only alternative.
DUI cases are very complex. Properly defending a DUI case requires specialized knowledge and expertise to get the best possible result. Make sure that you hire an expert DUI defense lawyer to defend you.