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With the Thanksgiving weekend and the holiday season upon us and parties to attend, it is important that you know your rights if you are stopped for a DUI (Driving under the Influence of Alcohol or Drugs or both) investigation. An individual faces 2 separate proceedings—a criminal case and a Department of Motor Vehicle (DMV) administrative proceeding. The criminal consequences invoke constitutional rights, including but not limited to, a jury trial, right against cross-examination of the witnesses, such as the police officers that arrested you and could mean jail or prison as punishment. As for the DMV proceeding, the issue is only regarding the suspension/revocation of your driving privilege. The DMV has no authority to incarcerate you.
I have written extensively about the criminal procedures and penalties of DUI. In this article, I will focus on the DMV. Federal and state Constitutions enumerate that no person shall be deprived of property without due process of law. The DMV, is therefore, required to give you notice of the action and opportunity to be heard (hearing). The hearing will focus on very narrow questions that if you took a chemical test: (1) Does the police have reasonable cause to believe you were driving in violation of certain laws? In California, it only deals with three laws, Vehicle Code (VC), 23140, 23152 or 23153. (2) Was there lawful arrest? (3) Were you driving when you had 0.08% or more of alcohol in your blood?
You have been arrested for DUI. What do you do? The officer is required by law to immediately give you a copy of the completed notice of suspension or revocation form and any driver license taken into possession, with a sworn report to the DMV. Your attorney must request a hearing from the DMV within 10 days of receiving this—usually 10 days from date of arrest. Some individuals will do two things: either not call the DMV at all or call them and set the hearing as soon as possible.
As in the criminal courts, you have a right to have the DMV witnesses subpoenaed by the agency and you also have a right to have, all DMV discovery (police reports, test results, supplemental reports). When my clients retain me, I request that all documents be provided and if not, a continuance, until I am provided with all the information the DMV possess. Additionally, witnesses should be present to allow me to cross-examine them as I would in criminal court.
Your driver’s license was taken at the time of arrest. How do you get it back? In California, your driver’s license will be returned to you at the end of the suspension or revocation provided you pay $125 fee and show proof of insurance. At the time of arrest, the office provided you with an Order of Suspension and Temporary License. This will allow you 30 days from the date of the order of suspension/revocation. When you request the administrative hearing, the attorney should also request that a stay on the suspension/revocation.
If the DMV concludes that the chemical test showed 0.08% or higher, the first offense will result in a 4 month suspension. A second or subsequent offense within 10 years will result in a 1-year suspension. There is a process, however, that after 30 days, a restricted driver’s license should be requested and your attorney should advise you on the process. This is not a request heard during the hearing. A restricted driver’s license will allow you to go to and from work and to your alcohol program.
You are required by law to submit to a chemical test to determine the alcohol and/or drug content of your blood. As of January, 1999, a urine test is not available unless the police suspects you were driving under the influence of drugs or a combination of drugs and alcohol or both the blood and breath tests are not available, or you are a hemophiliac or you are taking anticoagulant medication in conjunction with a heart condition. If you refuse to take a chemical test, a first offense will result in a 1 year suspension, a second will mean 2 year revocation, and a third and above will result in a 3 years revocation.
For those currently on probation for DUI, a law went into effect on January, 2009 which allows the DMV to take your driving privileges if: you are on probation for VC 23152 or 23153 and you are caught driving with an alcohol level for 0.01.
DUI is an offense encountered by many. Yet, it has always been challenging to defend especially if you are not properly represented. It involves more esoteric areas of science and law than most felonies, while affording fewer constitutional safeguards. The substantive, evidentiary, and procedural aspects of DUI litigation have grown complex, while at the same time the stakes for the person facing DUI charges have been raised.
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