DMV Hearings re DUI License Suspensions
 
I must receive a dozen calls or more per week from clients and attorneys regarding the DMV consequences on a DUI case.  Firstly, it is important to understand that the California Department of Motor Vehicles conducts an independent administrative hearing separate from the ongoing DUI criminal case.  Secondly, it is important to distinguish between a first or second offense, or a refusal of a chemical test, or if the accused is a minor or commercial driver.
 
The only issues before the DMV hearing officer on an over age 21 DUI (.08% or more) are:

1.      Did the officer have reasonable cause to believe that the licensee was driving the vehicle?
2.      Was the licensee lawfully arrested?  Was there sufficient probable cause?
3.      Was the licensee actually driving with a blood alcohol level of 0.08% or more?
 
FIRST OFFENSE
 
There is a 4 month suspension.  You are eligible to get a 5 month restriction after 30 days of actual suspension.  If you are convicted in court, you get a 6 month suspension, however, you can have that converted into a 6 month restriction if you enroll in a First Offender Drinking Driver Program, file proof of insurance and pay the DMV reissue fee.  If you lose the DMV hearing but are able to have your case in court reduced to a Wet Reckless, you still need to attend the first offender class to qualify for a restricted license.  The court may offer a shortened class of 6 weeks instead of the standard 4 months.  If your blood alcohol was over 0.15% or over 0.20%, the court may order you to attend a first offender class that may be 6 or 9 months.
 
SECOND OFFENSE
 
There is a 2 year revocation, however, you can get a restricted license after serving one year of an actual suspension, filing proof of insurance and paying reissue fees.

If you win the DMV but get convicted in court, you face the same consequences, however, you also have to attend an 18 month alcohol program.  If you lose the DMV and the criminal case is dismissed, there is no need to attend this 18 month program.  If your attorney can negotiate a Wet Reckless, you only need to do the 6 week educational program. The court could be compelled to agree not to impose even that program.  If you lose the DMV, you can have this overturned, if your attorney can get an acquittal or dismissal of the driving at 0.08% or more, or a Wet Reckless.
 
REFUSAL FIRST OFFENSE
 
If you lose the DMV, you will have a 1 year suspension, no exceptions.  If you win the DMV, there is no suspension at all.  If you win the criminal case, either through dismissal or not guilty, and lose the DMV, you will still have a 1 year suspension.  If you win the DMV but get convicted of a DUI refusal, you will have to complete a 9 month program and the license will be restricted for the length of the program.
 
REFUSAL SECOND OFFENSE
 
If you lose the DMV, you face a 2 year actual suspension.  If you win the DMV and get convicted of a DUI, you face a 2 year revocation, however, you can get a restricted license after serving 1 year of actual suspension.
 
DMV STRATEGIES
 
You should consult with an experienced criminal attorney in deciding how to proceed.  Should the arrest officer or another officer be subpoenaed to the hearing? Should evidence be subpoenaed?  If so, what?  What about arrest audio and videotapes?  What about dispatch or 911 communication logs?  What about the Preliminary Alcohol Screening Records (PAS)?  What about the Crime Lab Records?
 
This information is meant only as a quick reference basic outline.  It is by no means an exhaustive, complete detail of all the possible DMV issues that exist. Please see an experienced criminal attorney such as Charles Mesirow should you have questions or need assistance in your matter.  Mr. Mesirow is a Board Certified Criminal Law Specialist.  He is a former Senior Prosecutor with the Santa Clara County District Attorney’s Office.  He has handled over 5,000 cases in his nearly 4 decades of criminal practice.
 

Criminal law involves state prosecution of somebody for conduct that is classified as a crime. Criminal cases are tried by a state prosecutor who brings the criminal law cases. People who are found guilty of a crime may be imprisoned, fined, or a combination of both.

Criminal defense legal professionals are able to assist you with your criminal circumstance and will be able to protect your rights and obtain the best possible deal for your situation. Criminal defense lawyers will understand what the best outcome and worst options are and properly instruct you of your legal rights based on the crime you have committed. If you don't use a criminal defense lawyer, you could be jeopardizing your future and the severity of the punishment for your crime. Even if you have to borrow money or take out a loan, it is usually sensible to get a criminal defense lawyer in a criminal law case.

A crime is described as any behavior or omission (failure to act) in breach of a public law prohibiting or ordering it. Criminal law is generally outlined by local, state and federal legislation. Criminal law changes from state to state.
There are three main crime categories. One are infractions like traffic tickets where the maximum punishment is a fine only with no incarceration. The next category are misdemeanors such as petty theft or DUI where the maximum punishment is no more than one year in a county jail. The last category are felonies where, depending on the nature of the felony one could be sent to a state prison for a term of a few years up to life.

Most crimes consist of two key elements; an act and a mental state. Criminal law prosecutors must prove all elements of the criminal law crime to gain a conviction. In addition, the criminal law prosecutor must convince a jury or judge ‘beyond a reasonable doubt’ of all facts needed to validate the guilt of the crime charged.

If you have recently been arrested you may not be in a good position to deal with everything that is happening. There are some things you should keep in mind in order to avoid making mistakes. It is not unusual for people to make mistakes while they are getting arrested that can hurt them with their criminal defense. Worst of all, these mistakes can sometimes lead to additional charges. That's why it is worth considering the following while you are under arrest:

1. Running From The Arresting Officer - Running from the arresting officer during an arrest can lead to additional criminal charges. Resisting arrest can also cause more problems for you. Be respectful and cooperate instead.

2. Keeping Silent Is Your Right - Mouthing off or talking back during an arrest can be used against you. In fact, anything you say can be used against you. Trying to talk your way out of the situation can be damaging and could result in statements that are used against you in court.

3. You Shouldn't Attempt To Talk Your Way Out Of Trouble - When people try to talk their way out of trouble, it doesn't work very often. You are better served to remain silent and go with the police without resisting. Sometimes and officer will notate on the arrest report that you were argumentative. This can have a negative impact on the way a judge or others look at you.

4. Do Not Take Your Arrest Lightly - Getting arrested is nothing to take lightly. Make sure that you follow up by taking the right steps to get your matter resolved quickly and effectively. After you have been arrested, be sure to address the matter intelligently.

Speak with a San Jose criminal defense lawyer that can assist you with your issues and help resolve your problems quickly and effectively.

Despite the fact that state impaired driving laws and regulations vary greatly, generally speaking, a person is regarded as intoxicated with a blood alcohol content (BAC) of .08% or greater. Alcohol impacts everyone differently, but numerous men and women can be viewed as intoxicated after only ingesting a couple of drinks.

Typically, a 185 lb man could be over the BAC legal max after drinking 3 or 4 drinks, while a 125 lb woman might possibly be regarded as legally drunk after only 2 or 3 drinks. For persons who seldom drink alcohol, even one drink might possibly lead to intoxication bringing about a DWI charge. Naturally, how rapidly the alcohol is consumed, whether or not the man or woman drank on an empty stomach, whether or not other medication is being ingested, how consistently the person drinks, and other elements significantly affect how the body digests alcohol and therefore the blood-to-alcohol content ratio for that man or woman.

What goes on when somebody is arrested for driving while intoxicated?

Being arrested for drunk driving is a situation almost all of us try to avoid. After being arrested on charges of drunk driving, you'll probably be searched by the police, your car will get towed and you'll be transferred to jail where you'll be "booked." You might be placed in a "drunk tank" with other alcohol or drug impaired arrestees.

Despite being under the influence of alcohol, try to be as considerate and calm as feasible. You could manage to get out of jail within a few hours of your arrest. If not, then you can request the judge to discharge you at your first hearing. Get in touch with a lawyer as soon as possible or ask a friend or family member's help to do so.

A DUI legal professional can guide you through the court process, as well as help you with any associated hearings which may become necessary. You'll not only be facing criminal fines, but also suspension of your driver's license and maybe civil lawsuits if anybody was injured in connection with your drunk driving.

WHAT IS A DUI MILL"?

A "DUI mill" is usually a law firm operated by a lawyer who charges a lot of money, claims to have a large staff and office, but who rarely if ever speaks to you personally or handles your case personally after he or she has been paid. Often, defendants who have been release from jail after their arrest will receive dozens of letters in the mail "soliciting"  their business. What you find in many cases that someone else with little experience and not personal knowledge of you or your case will handle your matter. Unlike a "DUI mill", I personally answer all my own calls, give my personal phone and Email address to my clients, and personally handle your case. It is this personal attention that separates our office from these "DUI mill".

CAN A JUDGE GIVE ME A RESTRICTED LICENSE?

No. On the contrary, a judge can order that the DMV not give you a restricted license.

DOES A DUI MEAN THAT I WAS 'DRUNK WHILE DRIVING'?

No. DUI means that you were either driving when your ability to drive as a reasonable and sober person was impaired or when your blood alcohol level exceeded the legal level of .08%. You could haqve felt "sober" and still be guilty of DUI. DO DUIs INVOLVE ONLY ALCOHOL No. A defendant may be charged with a DUI after drinking alcohol, taking prescription drugs, illegal drugs, or any combination. One could also be charged with DUI if you smoked marijuana before or during driving.

CAN MY ATTORNEY APPEAR FOR ME IN COURT

Under most situations involving misdemeanor DUIs, we can appear in court without the accused. This allows our client the ability not to lose work or drive when their privilege to do so has been taken from them.

CAN MY CASE BE DISMISSED EVEN IF THE BLOOD ALCOHOL RESULTS ARE OVER.08%?

Yes. The chemical test is not infallible. Every test has its own strengths and weaknesses. One should never make a decision about your case until you have had an opportunity to review the police reports and other relevant evidence(statements from your witness, for example) with your attorney. Often people may wish to merely walk into court and plead guilty because they feel terrible about what happened. Before you do so, please take the time to review the evidence. Police reports and other evidence may be flawed. DUIs have lifetime consequences that may be avoided or reduced. Likewise, the police cannot  stop a person merely on suspicion or a hunch.We have been successful is dozens of cases over the years where the police were not legally justified in stopping our client. In these cases, the court has held that the police did not have a legally valid reason to stop and the evidence of excessive alcohol may be inadmissible.

CAN I GET THIS DUI OFF OF MY RECORD?

You may seek an expungement or record clearance of a conviction. This allows for a "removal" of a conviction for private sector employment. The conviction would remain on your record for purposes of future criminal charges, as well as for any public sector employment, licensure or the DMV. My first objective in representing my client is to have all charges dismissed. There are various ways of doing so in each case. We may attack a case of the facts or on legal grounds. If a dismissal is not possible then attempts are made to get the charges reduced and /or the penalties reduced.  I want my client to be seen in a personal light, separate from everyone else in court. I want the prosecution and the court to see all the positive accomplishments in our life in order to mitigate the punishment. I want the judge to be positively influenced by who you are so that he or she is more likely to exercise favorable discretion in your case. Over nearly 4 decades of criminal experience and as a Board Certified Criminal Specialist, I have handled thousands of cases involving DUI. I work with my clients to develop a strategy that meets with their personal goals and issues. I listen to their needs and offer assistance in and outside of the court.