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.

Many people accused of misdemeanor crimes may have a way of having a case dismissed by way of a "civil compromise". If you are accused of theft, assault and battery, hit and run or other misdemeanor offenses, your attorney should advise you and pursue this alternative to pleading guilty or going to trial. If a victim of a misdemeanor offense has a civil remedy, the court has the discretion to order the prosecution stayed and the defendant's case dismissed.

Even a county may be considered an injured party under California's civil compromise statutes. A dismissal or discharge based upon a civil compromise prevents the prosecution from pursuing another case for the same offense. Although there are certain crimes where a civil compromise may not be available, we have been successful on obtaining such dismissals in hundreds of cases over the last four decades. We have been able to approach victims of crimes and convince them that a criminal prosecution is unnecessary to protect and satisfy their interests. Negotiating with victims is a sensitive and delicate matter.

The accused should never engage in these negotiations directly or indirectly unless through authorized and experienced criminal counsel. It is a crime to condition a settlement of a civil claim on the non-prosecution of a criminal action. If the defendant were to do so, that person could be charged with additional more serious crimes of extortion or dissuading a witness. These are felonies which expose a defendant to time in a state prison.

In our nearly 40 years of criminal experience as a Board Certified Criminal Specialist, we have even had occasion to convince a court to reduce a felony to a misdemeanor and, thereafter, dismiss the charge under the civil compromise statutes. A civil compromise requires no admissions and no trial. If you are charged with a misdemeanor you should contact our office to see if a civil compromise may be available to you in order to avoid the consequences a a criminal conviction.