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San Diego DUI Attorney
San
Diego
California License Suspension Procedures (the DMV)
When a California driver is arrested he is
supposed to be given a choice of a breath or
blood test. If :
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a breath test indicates
.08% blood-alcohol or more, or
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a blood
(or, if neither breath nor blood are
available, urine) is taken for later
analysis, or
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the individual refuses to
submit to chemical testing, his driver's
license is immediately confiscated by the
police (unless it is an out-of-state
license) and he is issued a pink sheet of
paper.
This paper serves as :
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a formal notice of immediate suspension,
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a temporary license valid for 30 days and
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a technical explanation of the laws and procedures involved.
If this is a first offense, the license will
be suspended for 4 months. This can be
reduced to
1 month followed by 5 months of
work restriction if the individual files
proof of enrollment in a DUI school (PDF
Download) and proof of insurance (the
"SR-22" form). If the case involves a
refusal to submit to chemical testing, the
suspension is for 1 year; no work
restriction is possible. A 2nd offense
within 10 years carries a 1-year suspension,
2 years if a refusal.
The individual or his DUI attorney has ten
days within which to call the Drivers Safety
Office of the Department of Motor Vehicles
to contest the suspension at an
administrative hearing. This is called the
Administrative License Suspension ("ALS").
It is strongly recommended that a DMV
hearing be
requested. There is a good chance
of having the suspension thrown out; the
worst thing that can happen is that the same
suspension will simply take effect, but
later than 30 days. NOTE: It is CRITICAL
that the DMV be contacted by the
individual's attorney within 10 calendar
days of the arrest. On the 11th day, the DMV
will refuse to provide a hearing and the
suspension will automatically take effect in
30 days. If an attorney has not been
retained within the 10-day window, the
individual should contact the local Drivers
Safety Office himself. In Southern
California the main offices are located in
El Segundo, City of Commerce, Irvine, San
Bernardino, Oxnard and San Diego.
In most cases, due to work overload, the DMV
will be unable to provide a hearing before
the 30-day temporary license expires. In
that event, the lawyer should demand — and
will receive — an extension of the temporary
license (called a "stay") until the hearing
is provided and a subsequent decision
rendered.
This "APS" (Administrative Per Se)
suspension is based upon California's
so-called "implied consent" laws: any person
driving in this state is "presumed" to
impliedly consent to chemical testing if he
is suspected of drunk driving. It would
certainly seem, however, that the procedure
violates the U.S. Constitution. First, there
appears to be a presumption of guilt and
lack of due process: the officer is judge,
jury and executioner. Second, it would seem
to constitute "double jeopardy": the
individual is being charged with a criminal
offense and punished (including a license
restriction) in court — and then is accused
in a separate proceeding and punished again
with a license suspension. The courts,
however, have used strained logic in
concluding that one is criminal and the
other administrative — a license suspension
is simply an "administrative sanction", not
a "punishment"!
The hearing is conducted by a hearing
officer who is an employee of the DMV. This
person, although not legally trained, will
act as the "judge" — and also as the
prosecutor! He can, for example, rule on his
own objections. The hearing is conducted
like a miniature trial, but without jury and
with somewhat different rules of evidence.
The defenses tend to be more technical than
in court, with procedural and bureaucratic
errors often the grounds for a "set-aside"
of the suspension. Because of the technical
nature of these hearings and the lack of an
independent judge, it is inadvisable to
attempt to represent yourself. And because
they are not criminal in nature, public
defenders are unavailable.
Testimony can be produced by both sides,
although the hearing officer usually only
produces documents, such as police reports,
laboratory reports and the officer's sworn
affidavit. Because there is no Fifth
Amendment right at the hearing, the attorney
may or may not choose to have the client at
the hearing since he can be called by the
hearing officer as a witness. A decision is
usually not rendered until some days or even
weeks after the hearing. If adverse, the
decision can be appealed to the DMV in
Sacramento and/or to the courts by filing a
"writ".
Note:
Neither a plea to a reduced offense
(for example, reckless driving) nor a
dismissal of criminal charges is a defense
to an APS suspension. The only court
proceedings that will have any impact on the
DMV is an acquittal or finding of innocence
on the .08% charge. Similarly, a "set-aside"
in the DMV hearing has no effect on the
criminal proceedings.
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