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When a person is arrested for Driving Under the Influence in California, the officer will physically take away his or her California Driver’s License and provide the driver with a notice of an upcoming license suspension. Unlike the criminal case which requires that the driver first be convicted of the underlying DUI offense before any penalties can be assessed, the driver’s license suspension issued by the California Department of Motor Vehicles will automatically go into effect unless the driver proactively contests the suspension.
Following a DUI arrest, a driver has ten days to request a stay of suspension and administrative hearing with the DMV. If the driver misses this deadline, the suspension will automatically become effective regardless of the merits of the case. Even if the criminal case is ultimately rejected for filing by a prosecutor or dismissed by a judge, the DMV suspension would still be considered valid. For a first-time DUI offense for those who are 21 and over and who did not refuse testing, the length of the suspension would be four months. The driver would be eligible for a restricted license after a 30 day hard suspension that would allow travel to and from work and to and from an alcohol and drug education program.
Because of the immediate action that needs to be taken to avoid an automatic driver’s license suspension, it is highly recommended that anyone who has been arrested for a DUI offense get in touch with an experienced DUI attorney as soon as possible. An attorney can file the proper legal paperwork with the DMV in order to ensure that a timely hearing request is made. Once this occurs, the DMV will issue a “stay of suspension” and the driver will be sent a temporary license. With this, the driver will be able to maintain his or her driving privileges while the DMV hearing is pending.
After a DMV Administrative Per Se hearing request has been filed, the Department will schedule this hearing, which can be conducted telephonically or in person at a local DMV driver’s safety branch office. The hearing would be held before a hearing officer. The hearing officer is an employee of the Department of Motor Vehicles who is neither an attorney nor a judge. The hearing officer acts as both the prosecutor who introduces evidence at the hearing as well as the arbiter who ultimately decides whether to re-impose the suspension or issue a set aside order, which would restore driving privileges. It is critical to have an attorney involved as part of the administrative hearing, as a detailed knowledge of the Rules of Evidence and strong litigation skills are necessary.
Even if the driver is successful in the DMV hearing, there is still a risk that the driver will face a license suspension if he or she is convicted in court of the underlying DUI offense. Independent of the outcome of the administrative hearing, the DMV will issue a six month suspension for a first DUI for defendants who are convicted in court. The suspension period may be longer depending on the underlying facts of the offense.