What is the Administrative Per Se Hearing for Suspension in California?
The administrative per se hearing for suspension in California is a hearing conducted by the Department of Motor Vehicles. It is a separate proceeding from the criminal process in the courts.
In an admin per se hearing, the DMV has the burden of proving that you were lawfully arrested, and that you drove, had a blood alcohol concentration in excess of 0.08% (or in the case of refusal, that you refused to submit to a chemical test after a valid admonition). If they meet this burden, they will suspend your license. If DMV determines that there is insufficient evidence as to each or any of the elements, then they will set aside or dismiss the action against you.
How Many Days After A DUI Arrest Do I Have to Request a Hearing?
You have 10 days from the date of your arrest to request an administrative per se hearing before the DMV. If a hearing is not requested within 10 days, your right to a hearing will be forfeited and your license will be suspended 30 days after the date of your arrest.
Is There Any Point to Fighting Against Suspension at an Admin Per Se DMV Hearing?
There are many reasons to challenge the suspension of your driving privileges following an arrest for driving under the influence. At the hearing, you have an opportunity to test and challenge the evidence against you. In many circumstances, the case against you may be deficient. The report presented to the DMV by law enforcement must establish that you were driving, that you were lawfully arrested and that you submitted to a chemical test with the result above 0.08% (or did not submit to a chemical test at all.) A report from a law enforcement officer may fail to establish any of these elements. If it does, the case can be set aside. At the administrative per se hearing, you will be able to present evidence in the form of an expert witness who may provide testimony as to your blood alcohol level or an expert who may provide testimony as to whether the arrest was in fact legal.
You may also want to present evidence of a witness who was present at the time of the detention or arrest which resulted in the DUI charge. This witness may be able to provide evidence that contradicts any of the necessary elements needed for a license suspension.
If it is alleged you refused to submit to a chemical test upon request of a law enforcement officer, you will want to present evidence before the Department of Motor Vehicles challenging the chemical test admonition or the refusal. A successful challenge of the admonition would result in a dismissal or set aside of the DMV suspension. It is especially important that you challenge a refusal allegation. If a refusal allegation is found to be true by the DMV, a licensee will be subject to a one year license suspension for a first offense without the opportunity to have an ignition interlock device installed in your vehicle.
What Happens If I Lose at The DMV Hearing?
If you lose at the DMV hearing, your license will be suspended or revoked for a predetermined period of time. The length of time depends upon whether there were any prior administrative actions for driving under the influence, whether there was an allegation that you refused to submit to a chemical test, whether you were under 21 years of age at the time of the offense, and whether there were any injuries.
In most DUI circumstances, you are eligible to continue driving once you receive a notice of suspension provided you install an ignition interlock device. However, a finding that you refused to submit to a chemical test will exclude you from the opportunity to drive even with the ignition interlock device.
Do I Need an Attorney to Represent me at my DMV Hearing?
It is advisable that you retain an attorney to represent you at the DMV administrative per se hearing. An attorney experienced in DUI law understands the complexities of the DMV hearing process and will be able to identify any defenses, capitalize on any deficiencies in the arrest report, and/or provide you a defense at the hearing. It is very difficult for a layperson to provide an effective defense at a DMV hearing.
Does the Outcome of my DMV Hearing Have any Impact on my Criminal DUI Case?
The DMV hearing and criminal proceedings are, for the most part, separate. The DMV hearing is a civil proceeding, and the consequences are limited to the suspension of your driving privileges. The criminal proceeding involves punishment for a crime which may result in jail or some other alternative sentencing. That being said, it is possible that your license could be suspended due to an administrative action by the DMV while your criminal proceedings are still pending. Ideally, the suspension of your driving privileges will not occur until there’s been a resolution in the criminal case, but that is not always possible.
In some circumstances, you can use the information from the DMV hearing things that happen and are disclosed in one trial to help your case in the other trial. For instance, you may be able to use the testimony of a law enforcement officer at your administrative hearing to cross-examine that officer in your criminal proceeding if their testimony is inconsistent.
The outcome of your criminal proceeding can also have an impact on your DMV hearing. If you are acquitted, which means found not guilty of DUI charges by a judge or a jury, the DMV proceedings will be dismissed, and the suspension of your driving privileges will be set aside. However, mere dismissal of the case by the DA, like successful completion of a diversion program or dismissal following the suppression of evidence, will not automatically prevent your license from being suspended. In addition, if you are found guilty after trial or enter a plea of no contest to a DUI, your license will be suspended automatically based upon that conviction, even if your DMV proceedings are still pending.