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DMV Defense: Strategies & Perspective

Posted By Nors Davidson || 25-Feb-2011

Every DUI arrest typically generates two separate cases: 1) a criminal case; and 2) an administrative hearing at the DMV (called an "APS" hearing which stands for Administrative Per Se).  While the criminal case is truly the most critical, the priority I hear most from clients is that they want to save their driver's license.  In a DUI case, this is much harder than most DUI firms will advertise and sell to prospective clients. 

First of all, you need to resolve the criminal case.  If you're convicted of a violation of Vehicle Code section 23152(a) or (b) or even worse 23153(a) or (b), DUI with injury, you will suffer a minimum six month "mandatory" suspension.  This suspension, however, is not generally a "hard" suspension.  In other words, even if convicted of a standard DUI, the California license holder can immediately apply for a "restricted" driver's license assuming certain conditions are met.  Here in California, the ability to drive usually means the ability to work and as such, it's critical.  Once a complaint is filed by the District Attorney for DUI, the DUI defense attorney needs to, at minimum, get the charges reduced to a "wet" reckless or a violation of Vehicle Code section 23103.5.  Although a wet reckless is prior able under California DUI law, it DOES NOT generate a mandatory license suspension.  Of course a dismissal works too, but I think there needs to be more realism in the way DUI defense is actually marketed to the public.  Indeed, an acquittal from a jury of your peers will erase your DUI suspension. 

Assuming that your case can be successfully negotiated for a reduction, your license survives to fight another day at the DMV by way of your APS or Administrative Per Se hearing.  Many DUI firms and lawyers tell their clients that they don't need to appear for these hearings.  This can often be true, especially for high BAC cases, however, for a refusal or any low BAC case (<.12% or so), these hearings can be won.  Unlike the criminal case where you are presumed innocent until proven guilty beyond a reasonable doubt, the DMV gets a presumption that you are over a .08% assuming that a chemical test said so and was conducted within three hours of the time of the observed driving.  In other words, you're presumed guilty.  This presumption, however, is rebuttable, and in most circumstances an effort should be made to do so.

The strongest defense (other than not driving) to a BAC greater than .08% is that the chemical test did not accurately reflect the true BAC at the time of driving.  The driver was still absorbing recently consumed alcohol and therefore when the chemical test was taken, the BAC was actually much higher and reflected the "peak."  This defense can only be presented by admissible evidence.   Basically, the client needs to appear personally with his or her client at the DMV hearing and testify that they consumed alcohol almost immediately prior to driving.  This is often difficult because drivers almost always lie to the police and try to distance their drinking from the time of driving.  These facts, can, however, be testified to later at the DMV hearing. 

In addition to the client's testimony, a qualified expert witness, like a forensic toxicologist, must then provide opinion testimony that the BAC was likely below a .08% at the time of driving. 

The final element to a successful DMV hearing defense is the lawyer.  The DMV is in the business of suspending your license.  That is the norm.  To avoid normalcy, one needs an attorney with an exceptional reputation at the DMV.  Personally, I have found that the DMV responds better to simple straight forward arguments presented by likeable attorneys that they're familiar with.  Long winded legal arguments and objections are much less effective and in a lot of circumstances, actually alienate the DMV hearing officer who, by the way, usually didn't attend law school.  While there are no guarantees by a long shot, the only way to win a DMV hearing and save a license (and perhaps a career) is to rebut the presumption and do so in such a way that the DMV hearing officer has just cause to "set aside" your suspension in the event that the DMV supervisor is breathing down his or her neck. 

ALWAYS REQUEST A DMV HEARING WITHIN 10 DAYS OF ARREST.  This should be done by your lawyer, who can schedule an IN PERSON hearing and will prepare you to have the best chance to save your license.  Don't let some UNKNOWN LAWYER FROM A "DUI FIRM" DO YOUR HEARING OVER THE TELEPHONE IN YOUR ABSENCE ONLY TO FIND THAT YOU MAY HAVE ACTUALLY HAD A CHANCE TO SAVE YOUR LICENSE IF ONLY YOU HAD A REAL LAWYER WHO CARED ABOUT YOUR SITUATION!