Administrative Law - Driver’s Licensing Issues

DUI– Administrative Per Se Hearings

You have 10 days from the date of arrest to schedule a DMV hearing or you lose your right to a hearing and your driver’s license.

At the time of your arrest the officer will have served you with notification of the DMV’s intention to suspend your license (this is the pink temporary driver’s license.) In the fine print of this document you have only 10 calendar days from the date of the notification to schedule a Administrative Per Ser Hearing. Once the hearing is scheduled, the DMV will extend your privilege to drive until at least the date of the hearing. If you fail to schedule the hearing within the requisite time period then, you will lose your right to a hearing and your driving privileges will be suspended.

What happens at the Department of Motor Vehicles hearing?

The hearing is conducted at the Department of Motor Vehicles Office of Driver Safety. Typically, the Department of Motor Vehicles will present the officer’s police reports, and possible witness testimony either from an arresting officer, a civilian witness, or perhaps a criminalist from the crime lab that was involved in the processing of your breath or blood sample. This hearing is not conducted before a jury as would a criminal trial be, rather a hearing officer appointed by the Department of Motor Vehicles presides over the hearing. Please understand that the scope of the administrative hearing is limited to the following three issues:

• Whether there was probable cause for the officer to make contact with you. This means was there any legal justification for the officer to pull you over or for some reason to generate contact with you?
• Whether you were lawfully arrested. This issue deals with whether or not the officer, after doing an evaluation of you and all of the attendant circumstances, had probable cause to make an arrest. Typically, the officer will note slurring of the speech, bloodshot eyes, and an unsteadiness on one’s feet as reasons to justify the arrest.
• Whether your blood alcohol was a .08 by weight or greater. The chemical test, be it breath or blood, must have been taken within three hours of the time of the driving. If you were involved in an accident, the officer must state with clarity how the time of the accident was established. In cases where the officer observes the driving that is usually not an issue. Moreover, the person administering the test to you, whether it be the operator of the breath machine or the person drawing you blood, must have been qualified to do so under California law.

The DMV hearing is limited to these issues. Argument and evidence will only be entertained on these issues. As you can see, the hearing is limited to highly technical legal issues in which an experienced attorney may make difference in preserving one’s driving privileges.

At Raskin & Tee, the partners are highly successful at identifying issues and preserving their client’s driving privileges. While nobody can guarantee a particular result in any case, Raskin & Tee lawyers have stopped the suspension of drivers’ licenses in numerous cases, even cases in which the BAC level was as high as .34. Lawyers without detailed knowledge of the DMV process, and latest case law on the subject, can easily miss crucial problems in the DMV’s case. The DMV is under no obligation to, and will not, point out these flaws to the driver or his or her unskilled lawyer. Rather, the DMV will suspend the license if the problem in their case is not challenged properly.