If you are a resident with two previous DUIs and you get a subsequent third offense, a conviction will subject you to two separate cases of suspension of your driving rights. License suspension is among the most common penalties of a DUI. However, every time you are under arrest for a DUI doesn’t mean you will face automatic license suspension unless you fail to file for a DMV proceeding. At the Orange County DUI Defense Attorney Law Firm, we will represent you in the DMV license suspension third offense hearing.
Overview of Driving Privileges Suspension
The DMV has the right to withdraw the driving privileges of Californians with fewer restrictions. California VC 13102 defines license suspension as a temporary removal of driving privileges. If the decision to remove the driving rights succeeds, the DMV will take administrative action to get the license suspended or retracted.
There are several reasons why the DMV can suspend your license. These are:
- Driving with no insurance
- Negligent driving
- Car crashes causing severe injuries
- Vehicle crashes causing loss of life
- Hit and run
If you do any of the above, you risk temporarily losing your driving rights for a specific duration. If the reason for your arrest is a third DUI, you will be subject to two separate license suspensions. The first will be that of court proceeding while the other suspension is by the DMV. Losing your driving liberties to the DMV is much easier because you can apply for an IID so that you can continue operating your vehicle.
DMV Hearing in California
As said earlier, in case you are under arrest in California for the third time within ten years with a BAC of .08% or more, you will face two separate proceedings. Those of the criminal court and the administrative hearing by the DMV. The purpose of the DMV hearing is to give you as the defendant the opportunity to submit your evidence and challenge the charges against you. The main focus of the DMV proceeding is not to determine your innocence or guilt. Instead, it seeks to establish:
- If your apprehension was lawful
- If you refused to submit a blood or breath test sample
- If the law enforcer had reasonable suspicion to conduct a traffic stop
- If the officer warned you of losing your driving rights if you fail to submit a sample for testing
When arrested for drunk driving for the third consecutive time within ten years, the officer who made the arrest will take your license and forward a copy to the DMV. The officer will then issue you with a temporary driver’s license that only lasts for thirty days. If you receive this pink document, you should automatically know that if you don’t file for an administrative hearing within ten days after your arrest, your rights to drive will be suspended automatically after thirty days. Note that if you request a DMV proceeding within ten days after your apprehension for DUI, the suspension will be put on hold, awaiting the outcome of the proceeding.
3rd DUI DMV License Suspension
If you lose an administrative process, you will have your license suspended for twelve months. The good news since the year 2019 is that after the DMV suspends your driver’s license, you can immediately continue driving after applying for an IID restricted license. The ignition interlock device is a breathalyzer that keeps your car from starting if it detects any amount of alcohol in your breath.
The restricted license allows you to drive to work or school. Keep in mind that you can avoid the suspension entirely if you get an experienced DUI defense attorney for your DMV hearing. With a profound attorney, you might have the suspension set aside. However, if you lose the proceeding, to have the license reinstated, you must do the following:
- Enroll in a DUI school
- Submit SR-22 form
- Pay one hundred and twenty-five dollars as license reinstatement fee
- Install an IID
Your Rights at an Administrative Hearing
DMV hearings are more relaxed than criminal court proceedings for DUI because there is no involvement of judges. Also, when it comes to proving your innocence in a DMV case, little evidence is required than in court proceedings where a lot of evidence is necessary to convince the judge or the jury beyond doubt that you are innocent. DMV hearings are also different from court hearings because they take place in the office.
Although these two proceedings are different, you have the right to be represented by a DUI attorney in a DMV proceeding, although it is not mandatory. It’s different from a court hearing where if you don’t have or can’t afford an attorney, the court will assign you one.
During the DMV hearing, you have the right:
- Testify on your behalf
- Evaluate and challenge the evidence
- Cross-examine witnesses
- Subpoena and present witnesses
Scheduling a Hearing for Third DUI
The hearing happens at the local DMV driver safety branch office. You must contact the office within ten days after your arrest failure, to which you will be surrendering your rights to the hearing. After scheduling the trial, your DUI attorney can represent you, so it is not a must that you attend the proceedings. Remember, the DMV proceeding can occur even over the phone.
Preventing the One Year DMV Third DUI License Suspension
A lot of considerations happen before the DMV hearing officer gives a verdict on the case. First, he or she must consider if your blood alcohol level was .08% or higher during the third DUI arrest. Consequently, he or she must check if the officer had probable cause to believe you were operating the vehicle under the influence. The other consideration is whether the officer had reasonable cause to put you under arrest.
In an administrative hearing, even if you declined to submit a sample for chemical testing, the question will not be on you refusing to take the test. Instead, the DMV officer will want to know the following:
- Whether the officer notified you that refusal to submit a sample of your blood or breath for testing would result in license suspension for 364 days or revocation for two or three years
- If you failed to submit the tests even after being requested by the officer to do so
Once the DMV officer considers these things, he or she might decide to suspend your license or set aside the suspension based on the circumstances of the case. With this in mind, you should understand that even if a third DUI offense has severe repercussions of license suspension from the DMV, you can still fight the charges and prevent the suspension. Below are some of the DUI defenses your attorney can apply to avoid license suspension:
- You were not Driving
The argument applies where no evidence can reasonably show that you were driving. Also, if the Department of Motor Vehicles didn’t subpoena any witnesses who saw you drive, arguing that you were not driving is the best defense. By successfully asserting that you were not in physical control over the car, it means the arrest was illegal because although you were intoxicated, you were not driving. The license suspension for your third DUI offense will be put on hold after the conclusion that the arrest was illegal.
- Your Detention was at an Illegal Sobriety Checkpoint
DUI checkpoints in California should adhere to particular strict guidelines. If your arrest happened at a sobriety checkpoint, but you feel the inspection didn’t meet all the legal requirements, the stop becomes unlawful. Even if you were under the influence during the stop at the checkpoint, any evidence gathered after the arrest will be dismissed because, in the first place, the arrest was against the law. The fact that you were under the influence will not hold if the initial stop was unconstitutional.
- Lack of Probable Cause
The hearing officer is going to dismiss the possibility of a license suspension for the third DUI offense if you can prove that the officer didn’t have probable cause to detain you. There are several arguments your defense lawyer can make to prove to the officer that there was no reasonable suspicion for your detaining. Some of these reasons are:
- The police officer racially profiled you because, during the stop, you were observing all traffic rules
- You were involved in a crash, but you only started drinking after you arrived home from the accident when the law enforcement officer came to interview you
Even if the test results after the interview at your home show the BAC was .08% or higher, that is not enough to show you were DUI. What is required is to prove that the BAC was .08% when you were driving or when the accident occurred.
- The Officer did no Appropriate Fifteen Minutes Observation
California provides regulations that officers must adhere to during administration, collection, storing, and analyzing chemical and blood tests. The rules are provided for by Title 17. Among the regulations provided include the fact that the police officer must properly observe you for 15 minutes before conducting any tests. The action ensures that you, as the offender, doesn’t vomit or take anything that might make the test results unreliable.
If an officer fails to conduct this observation, to the DMV, it means that your BAC was not .08% or more; hence you should not have been arrested in the first place. Making this argument is going to give you triumph at the administrative hearing.
- Breath Testing Equipment was Not Properly Working or Adjusted
Tile 17 also provides regulations on the maintenance of breath testing devices. According to these regulations, all breath testing equipment should undergo maintenance after every ten days or after one hundred and fifty blows. If your breath sample was taken by a device that falls short of these requirements, it means the test results are incorrect or inaccurate. Even if the tests showed your BAC was above the legal limit, they would not count because they fail to meet the standards provided for in the constitution.
When using this defense, you will need an expert witness with knowledge about breath testing equipment. Such an expert will convince the DMV officer that the devices were malfunctioning or poorly maintained, thus making the results unreliable.
- Alcohol is Not the Reason for Your False Blood Alcohol Level
If the devices used to collect the tests were per Title 17, you have to find another explanation as to why the BAC level was high. The best argument in this is claiming that the results read a falsely high blood alcohol level because of residual mouth alcohol or medical conditions like GERD or acid reflux. These conditions can make your BAC appear more elevated than usual.
The DMV will dismiss the license suspension if you can prove you suffered any of these conditions and that despite test results, your BAC was within the legal limit of below .08%.
- You were Not Properly Advised on the Consequences of Failing to Submit a Chemical Test
If you fail to submit to a chemical test, the officer must advise you that your actions might trigger a license suspension for twelve months. The advice is called admonition, and the officer is required to read it to you word by word. If the officer didn’t recite the warning, you will win the DMV hearing and prevent license suspension. You can apply this defense in circumstances where the police officer:
- Forgets to administer the admonition
- Knowingly opts not to give it
- Instead of reading the warning, the officer decides to recite his or her understanding of it, thus confusing you
- Tells you your refusal to submit to a DUI test could result in license suspension instead of telling you it will result in automatic license suspension
- You Didn’t Decline to Submit a Breath or Blood Sample for Testing
If you didn’t turn down the chemical tests, and there are no test results presented to the DMV, the hearing officer will have no reason to suspend your license. To prove that you didn’t refuse to take the tests, you can claim that you had insufficient breath to blow the testing device. Further, you can argue that you were not given a blood test as an alternative, or you had questions about the procedure of administering the test. However, the officer deemed it as refusing to submit to a chemical test.
- The Paperwork by the Law Enforcement had Multiple Flaws
After every DUI arrest in California, the police should file specific paperwork. The prosecution uses the report made by the officer as evidence. The report contains the date of the arrest and the BAC test results. The record should also have a signature from the officer who filed it. In the event the paperwork doesn’t have a sign from the officer or contains the wrong BAC results, your DUI attorney can challenge. If the police report contains many errors, your attorney will convince the hearing officer to drop the action.
- You were Arrested for Violating the Under 21 Zero Tolerance Law, but the Officer Didn’t Lay the Appropriate Foundation for the BAC Results
Persons below the age of 21 shouldn't drive when they are under the influence, no matter the BAC level. The Zero Tolerance law focuses on these underage persons facing a license suspension for drunk driving. In case you are stopped for DUI while you are under 21, the officer will conduct a preliminary alcohol screening test. Title 17 regulations do not regulate the PAS test devices. It means the officer must appear in the DMV hearing to testify. During the testimony, the police officer must explain why the PAS tests results are reliable and why they should be used as evidence in court.
In the event the officer fails to lay a strong foundation about the PAS tests, your attorney can assert that the PAS test results are not reliable, and therefore should not be used as evidence in court. If this happens, the DMV will not suspend your license.
Appealing the Department of Motor Vehicle Decision for Third Offense
At times, the defenses above might not help you win the DMV hearing. If the outcome of the proceedings doesn’t favor you, the California statute allows you to petition the DMV decision. You can do this by filing a petition immediately in the Superior Court of California. You can also demand a DMV departmental review from the Department of Motor Vehicles. The information about the petition is found in the notification sent to you by the DMV notifying you of the ruling after the DUI hearing. Some of the information contained in the announcement includes the date of the date you are supposed to lodge the appeal and the steps you should follow. Note that a requisite fee of one hundred and twenty dollars will be paid to cater to the DMV appraisal.
When appealing your DMV hearing, know that there are specific time frames, deadlines, and strict rules that must be respected. If you have never been arrested for drunk driving, following the whole procedure will be tricky, which is why you need a DUI defense attorney. They understand the DMV hearing process and are best suited to guide you through the process.
What Happens if you Win the DMV Hearing?
If you win a DMV proceeding, the DMV officer will drop the action, which means you get to retain your driving constitutional rights. Winning a DMV proceeding will also give you an advantage in your DUI proceeding. In the event of a plea bargain, you can use the findings from the DMV hearing to demonstrate why you should get a better deal. Also, if the DMV hearing was ruled in your favor because of flaws or errors in the prosecution’s case, a DUI defense attorney can refer to these errors to dismiss the DUI case.
However, note that the DMV and DUI court proceedings are two different things. It means that winning an administrative hearing doesn’t guarantee that you will win the DUI court hearing too. Despite the defeat at the DMV, the prosecution will still be convinced they have adequate evidence to convict you for a third DUI. Because of this, even if you win the hearing, the DUI court process will begin as planned. In the event of a successful conviction of DUI in court, the judge has the authority to revoke or suspend your license. Therefore, as you concentrate on getting an attorney profound in DMV hearings, make sure the attorney has experience in dealing in DUI court proceedings. That way, you get to improve your chances of avoiding both the DUI court and DMV hearing.
Getting your License Back After Suspension Third Offense
If the DMV suspends your license, to get the driving rights back, you must complete your period of suspension first. The next step is paying the license reinstatement fee. You must pay $125 plus provide SR-22 insurance cover forms to get the license back.
Relationship Between the DMV Hearing and DUI Court Case
Unlike court hearings, DMV proceedings are not concerned about whether you committed a crime or not. The exercise focuses more on the circumstances surrounding your arrest and if you should lose your driver’s license.
The two are also closely related in that the testimonies acquired in an administrative hearing can be used in a court proceeding to have the charges reduced or removed through a plea deal. Another significant difference between the two is that a judge governs the court hearing while a hearing officer governs a DMV proceeding.
Find a DUI Defense Attorney Near Me
If you need to defend against DMV License Suspension for your third-time DUI offense, you will need to reach out to the Orange County DUI Attorney Law Firm. Our attorneys are experienced in DMV proceedings and DUI court cases, thus ensuring that you retain your driving freedoms. Contact us today at 714-740-7866 for a free consultation with one of our attorneys.