It is critical to understand that your attorney has only TEN CALENDAR DAYS after the DUI arrest to call the DMV's Driver Safety Office to demand a hearing; you waive your right to a hearing after ten days. If an attorney has not been retained within 10 days of the arrest, you should contact the local Driver's Safety Office yourself, demand the hearing, and get the name of the person with whom you spoke; do not discuss the reasons why you are contesting the suspension.
Get Your Temporary License Extended if Necessary
Because of heavy DUI suspension caseloads, the DMV will very likely be unable to schedule a hearing before the 30-day temporary license expires. If this happens, your lawyer should demand an extension (called a stay) of the 30-day temporary license until the hearing is provided and a decision given.
The Administrative Hearing
The administrative hearing for the DUI suspension is conducted somewhat like a miniature trial, but without a jury, with somewhat different rules of evidence, and with a hearing officer rather than a judge. As unfair as it may seem, this hearing officer who is legally untrained and an employee of the DMV, acts as both prosecutor and judge. He can object to your evidence -- and then rule on his own objection!
Testimony can be offered by both sides, although the hearing officer usually only produces hearsay documents, such as police reports, laboratory reports and the officer's sworn affidavit. Because there is no Fifth Amendment right at the hearing, your DUI attorney may or may not choose to have you present since you can be called by the hearing officer as a witness and forced to testify against himself.
Criminal vs Administrative
Neither a plea to a reduced offense (for example, reckless driving) nor even a dismissal of criminal charges is a defense to an ALS suspension. The only court proceedings that will have any impact on the DMV is an acquittal or finding of innocence on the .08% charge (the DMV is unconcerned about the second charge of DUI). Similarly, winning at the DMV hearing has no effect on the criminal proceedings.
A decision is usually not mailed for days or even weeks after the hearing. If the suspension is upheld, the decision can be appealed to the DMV in Sacramento and/or to the courts by filing a writ.
Should I Try to Represent Myself?
The defenses at an ALS hearing are often more technical than in criminal court; procedural and bureaucratic errors are commonly the grounds reversal of the suspension. Because of the technical nature of these hearings and the lack of an independent judge to offer some protection, you are strongly advised not to try to represent yourself. And because they are not criminal in nature, public defenders are unavailable.
Additional resources provided by the author
The following are additional resources concerning a DUI license suspension in California:
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