When you are arrested for driving under the influence (DUI), you can be charged with criminal (misdemeanor) charges in the Superior Court and face a license suspension from the DMV. There are separate hearings for both the court and the DMV. Typically, to avoid a license suspension you must win both the DUI in court and the DMV Hearing.
DUI in Court:
Once you have been stopped by an officer and he believes you are under the influence of alcohol or drugs, he will place you under arrest and take you to the station. Once you are released from custody you will likely receive a notice of when you are to report to court for your arraignment on the charges. The arraignment is your opportunity to enter a guilty or not guilty plea to the charges. It is wise to retain an attorney prior to your first court hearing so the attorney can appear for you at the arraignment and protect your rights. However, if you have not retained an attorney prior to your first hearing, you can ask the court for a continuance of your arraignment to give you time to hire an attorney.
If you decide to fight the DUI charges, the court will set another hearing called a readiness conference. This will give you another chance to negotiate your case with the prosecution. If your case is not resolved at the readiness conference, it will be set for trial. In misdemeanor cases, your attorney can appear on your behalf for the court hearings.
Department of Motor Vehicles (DMV)
Administrative Per Se Hearing (APS)
When you get arrested for a DUI, the arresting officer is required to issue you a temporary license--a pink form that allows you to drive temporarily. Unfortunately, lots of people fail to read and understand the entire form. If you look at the middle of the form you will see in bold that you are given 10 days to request an administrative per se (APS) hearing with the DMV. If you fail to request the APS hearing within 10 days, it will be too late and your license will be suspended without having an opportunity to defend yourself. If you are arrested for a DUI, be sure to personally request the hearing from the DMV Driver's Safety Office within the 10 days, or contact an attorney within 10 days and inform him or her that you have not yet requested the hearing. Most attorneys will represent you at the APS hearing as part of their retainer.
The hearing is conducted by a DMV Hearing Officer. The Hearing Officer reviews the police reports and may call the arresting officer to testify at the hearing. During the hearing, the DMV must prove that (1) the arresting officer had reasonable cause to believe that you were driving a motor vehicle in violation of the Vehicle Code, (2) you were placed under lawful arrest, and (3) you were driving when you had .08 % or more of alcohol in your blood.
The Hearing Officer acts as both prosecutor and judge, determining whether your license should be suspended. Needless to say, you are at a disadvantage. To help level the playing field, you are entitled to have an attorney represent you at the hearing. You or your attorney will be able to obtain the police reports prior to the hearing, review those reports for objectional evidence, attend the hearing, cross-examine any witnesses, and argue against the evidence presented by the hearing officer.
If you win the hearing the DMV does not suspend your license and the suspension is set aside. If you lose the hearing the DMV will send you a notice in the mail stating your license suspension will start again on a certain date (usually nine days after the notice is mailed).
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