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.