LEGAL GUIDE
Written by attorney Matthew J Ruff | Oct 11, 2010

Fighting a DMV Hearing

After a DUI arrest the individual has ten days within which to request an administrative hearing through the Drivers Safety Office of the Department of Motor Vehicles to contest the suspension. This is called the Administrative Per Se Suspension ("APS"). 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 try to contact the local Drivers Safety Office himself. In Southern California these offices are located in El Segundo, City of Commerce, Irvine, San Bernardino and San Diego. In Kern County the offices are located in Fresno and Bakersfield.

The hearing ideally should be set up through an attorney familiar with APS matters. 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 due to the stay often far later than 30 days.

If this is a first offense within 10 years, the license will be suspended for a minimum of 4 months by the DMV. 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 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, again no restriction is possible. If under 21 a 1 year suspension may result.

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" 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 DMV license suspension is simply an "administrative sanction", not a "punishment"!

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