How to remove a dismissed DUI from your DMV record
In the majority of DUI incidents involving alcohol there are two actions taken against the driver, the criminal case in court that is handled by a prosecutor and the administrative action handled by the Department of Motor Vehicles regarding the individual's driving privileges.
Due Process vs DMV Administrative ActionThese actions are wholly separate and winning your case in one arena does not necessarily mean that you will win in the other. While any person who is charged with the crime of driving under the influence is entitled to certain due process rights regarding the criminal charges against them, these rights do not apply to the DMV administrative action. Where a person charged criminally with DUI will be given an arraignment date on which he or she would have to formally answer to the charges in open court, the DMV license suspension will automatically become effective unless the driver proactively takes steps to request a hearing and challenge the suspension. Incidentally, this is one of the reasons why it is imperative to retain a qualified DUI attorney as soon as possible, as the driver only has 10 days to request a hearing and an attorney can handle this request and make sure it is properly filed with the DMV.
Criminal Procedure Does Not Apply at DMVThe DMV administrative action is not decided by a judge, but rather by a hearing officer employed by the DMV who is not an attorney. In the administrative action, the rules of criminal procedure do not apply. DMV hearing officers are much more likely to rule against the driver and are less open to arguments that may be successful in court. In many cases, the DMV administrative hearing has been completed before the driver has even had a chance to appear in court. When fighting the criminal case in court, the defendant may have access to additional discovery material and may find prosecutors and judicial bench officers who are more receptive to legal arguments for dismissal. As a result, there are many situations where the criminal DUI charges are dismissed and the driver may want to remove the DMV administrative action from his or her driving record.
Challenging License SuspensionCalifornia courts have held that the DMV action is independent of what transpires in court, and a judge's ruling on the criminal case is not binding on the Department. This means that the DMV may ultimately decide not to alter a DMV suspension based on a dismissal of charges in court. Anyone whose DUI case was dismissed can submit a form known as a DS-702 to the DMV. This document must be filled out and signed by the prosecutor who dismissed the case. With this form, the prosecutor will notify the DMV of the reasons for the dismissal. Even if the prosecutor agrees to fill out a DS-702, which is rare, the DMV does not have to reverse the administrative suspension upon receipt of a signed DS-702. If the prosecutor does not agree to submit a DS-702, there are other ways a driver can challenge the suspension. The driver can file a departmental appeal of the unfavorable hearing decision. This appeal must be filed within 15 days of the effective date of the decision.
Hiring an Experienced AttorneyIn addition, the driver can request a review of the decision with the local Superior Court. This must be submitted within 34 days of the date the written DMV decision is issued. It is highly advisable that anyone looking to have a license suspension removed from his or her DMV record first consult with an attorney experienced in handling these types of matters.