{"id":318,"date":"2018-04-28T23:29:48","date_gmt":"2018-04-29T06:29:48","guid":{"rendered":"http:\/\/irvine-dui-lawyer.com\/?page_id=318"},"modified":"2020-01-11T04:37:08","modified_gmt":"2020-01-11T04:37:08","slug":"dmv-hearing","status":"publish","type":"page","link":"https:\/\/fullerton-dui-lawyer.com\/?page_id=318","title":{"rendered":"DMV Hearing"},"content":{"rendered":"

DMV Hearing<\/strong><\/h1>\n
An arrest for DUI triggers two separate and independent actions\u2013one in the\u00a0criminal court<\/a>\u00a0and one at the\u00a0DMV<\/a>.\u00a0 Losing either case usually results in a driver’s license suspension<\/a> or revocation of your driver\u2019s license.<\/div>\n
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The DMV hearing, called an Administrative Per Se hearing or APS hearing, is held at a special DMV office called \u201cDriver Safety\u201d. If you were arrested in Orange County, the hearing will be held at the Driver Safety office<\/a> in the City of Orange<\/a>. This hearing can be either in-person or by telephone. This is a civil proceeding so you are not entitled to the same constitutional protections and burden-of-proof as in a criminal case.\u00a0 It\u2019s important to be represented by a Fullerton DUI lawyer who is experienced at handling these hearings.<\/div>\n
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The DMV Hearing Procedure<\/h2>\n
The DMV has the burden of proof at the DMV hearing and must prove all issues by a preponderance of the evidence. These hearings are quite unconventional in that the DMV hearing officer sits as both judge and prosecutor. The DMV hearing officer is neither a judge nor a lawyer and usually has no legal training at all.<\/div>\n
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This means that the person who introduces evidence against you and argues that you should be suspended is\u00a0the same person who makes the decision on whether that evidence is admissible and whether you should be suspended. Therefore, it is important that your Fullerton DUI lawyer is skilled and \"dmvexperienced at handling DMV hearings and will challenge the introduction of improper evidence and ensure that the record is preserved.<\/div>\n
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The evidence that the DMV hearing officer typically relies on consists of police reports, driving record printouts, and forensic reports. Sometimes, the police officer also testifies. Either the DMV hearing officer or your Fullerton DUI lawyer has the power to subpoena the arresting officer. The issues at the hearing depend on whether you took a test to determine your blood-alcohol level or you refused to take a blood or breath test.<\/div>\n
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If you took a test, then the three issues at the APS hearing are: 1) whether the police officer had reasonable belief that you were under the influence of alcohol; 2) whether the arrest was lawful; and 3) whether your blood-alcohol was over the legal limit at the time of driving.<\/div>\n
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If you refused to take a test then the DMV must also prove: 1) that you were adequately advised that a refusal<\/a> would result in a suspension or revocation of your driver\u2019s license and; 2) that what you said or did actually constitutes a refusal to take or a failure to complete the test.<\/div>\n
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Defenses At The DMV Hearing<\/strong><\/h2>\n

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Insufficient Evidence<\/em><\/h3>\n
At the DMV hearing, the DMV hearing officer will attempt to introduce documentary evidence against you, such as\u00a0police reports, sworn statements, and\"dmv chemical test results. Often, there is improper foundation to qualify this evidence for admission. It is important that your Fullerton DUI attorney object to admitting this material into evidence. Also, this evidence often constitutes hearsay and the DMV has the burden of showing an exception to the hearsay rule. Also, there are special rules governing the admission of chemical test results. A qualified Fullerton DUI lawyer can spot these issues and make proper objections.<\/div>\n<\/div>\n
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Title 17 Violation<\/em><\/strong><\/h3>\n
Another successful defense at the DMV hearing is that the chemical test was not performed in strict accordance with the body of law governing such tests. (Title 17 of the California Code of Regulations<\/a>) For example, Title 17 requires that before a police officer gives a breath test, the officer must continuously observe the person for 15 minutes before the test to make sure the person doesn\u2019t burp. If your Fullerton DUI lawyer shows the officer didn\u2019t do this, then the breath-test result must be excluded. Another example of a Title 17 violation is if the breath-testing device was not properly calibrated within a specified time frame.<\/div>\n<\/div>\n
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Probable Cause<\/em><\/strong><\/h3>\n
In order for a police officer to legally stop you he must first witness an actual vehicle code violation. If the police officer stopped you for something that doesn\u2019t constitute a law violation, such as weaving within your lane, then the police officer lacked probable cause to stop you in the first place. This must be raised by your Fullerton DUI attorney at the DMV hearing.<\/div>\n<\/div>\n
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Evidence of driving<\/em><\/strong><\/h3>\n
At the DMV hearing, the DMV must have proof that you were the one driving. They must also prove when the driving occurred. The DMV must prove that the driving occurred within 3 hours of the blood or breath test in order for the test to be presumed accurate. If there is insufficient evidence that you were the driver or when the driving occurred then your Fullerton DUI lawyer may be entitled to have the suspension set-aside.\u00a0\"\"<\/div>\n<\/div>\n
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Rising defense<\/em><\/strong><\/h3>\n
When you consume alcohol it takes between 15 minutes and three hours for the \"risingalcohol to move from your stomach to your blood. If most of the alcohol was in your stomach at the time of driving, then your blood-alcohol level will greatly increase in the ensuing minutes and hours after your arrest. A breath test<\/a> or blood test<\/a> taken long after driving will not disclose what your blood-alcohol level was\u00a0at the time of driving<\/em><\/strong>.<\/div>\n
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Thus, even if the test shows that your blood-alcohol was over the legal limit at the time of the test, your Fullerton\u00a0 DUI lawyer may present testimony at the DMV hearing of a forensic alcohol expert to show the DMV hearing officer that your blood-alcohol level was below the legal limit at the time of driving.<\/div>\n
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The Driver\u2019s License Suspension<\/strong><\/h2>\n
The driver’s license suspension<\/a> handed down by the DMV after a DMV hearing can range from four months to four years depending on whether you have prior DUI convictions and whether you refused to take a test.<\/div>\n<\/div>\n
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First Offense<\/em><\/strong><\/h3>\n
For a first-offense DUI where the driver is at least 21-years-old, the suspension after a DMV hearing is a four-month suspension. However, this can be reduced to a one-month suspension followed by a five-month period of \u201crestricted\u201d driving where you will be allowed to drive as long as it is \u201cwork-related\u201d. If it is an alcohol only DUI, then you can drive right away if you install an Ignition Interlock Device<\/a>\u00a0 (“IID”) in your car. An IID is a breath-testing that requires alcohol free breath in order for your car to run. The IID restricted license allows you to avoid any suspension at all.<\/div>\n
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If this is a first-offense but it is a refusal, then the suspension is for one-year with no possibility of getting a restricted license. If the DUI resulted in injury to a person other than you, the driver, then the suspension will be for a period of one year with no possibility of getting a restricted license. If you were under 21 years old at the time of the DUI then the resulting suspension will be for a period of one year with no restriction allowed.<\/div>\n<\/div>\n
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Second Offense<\/em><\/strong><\/h3>\n
If you have a prior DUI conviction within the past 10 years then the suspension after the DMV hearing will be for a period of two years with a possibility of getting a restricted license after completing 12 months of an <\/span>alcohol program. <\/a>If the DUI was alcohol only, then you can get an IID restriction right away and avoid any actual suspension.\u00a0\u00a0<\/span><\/div>\n<\/div>\n
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If the second-offense DUI resulted in injury to someone other than you, the driver, then you face a three-year license revocation after losing the DMV hearing. However, you may be eligible for a restricted license after one year if you have completed 12 months of an alcohol program and you have an IID installed in your vehicle.<\/div>\n
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If you refused the alcohol test and you have one prior conviction then you face a two-year license revocation with no possibility of getting a restricted license.<\/div>\n<\/div>\n
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Third Offense<\/em><\/strong><\/h3>\n
If you have two prior DUI convictions within the past 10 years then the suspension after a DMV hearing loss will be for a period of three years with a possibility of getting a restricted license after completing 12 months of an alcohol program. If no drugs were involved, you can get an IID restricted license right away.<\/span><\/div>\n<\/div>\n
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If the third-offense DUI resulted in injury to someone other than you, the driver, then you face a five-year license revocation if you lose the DMV hearing. However, you may be eligible for a restricted license after one year if you have completed 12 months of an alcohol program and you have an IID installed in your vehicle.<\/div>\n
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If you refused the blood test and the breath test and you have one prior conviction then you face a three-year license revocation with no possibility of getting a restricted license.<\/div>\n<\/div>\n
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Free Telephonic Consultation With A Fullerton DUI Lawyer<\/strong><\/h2>\n
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The Law Office of EJ Stopyro<\/strong>\u00a0offers a free telephonic consultation. Mr. Stopyro will explain the charges you face and help you explore your options. Call us today at\u00a0(949) 278-6353<\/strong>\u00a0for your free and completely confidential consultation.<\/div>\n","protected":false},"excerpt":{"rendered":"

DMV Hearing An arrest for DUI triggers two separate and independent actions\u2013one in the\u00a0criminal court\u00a0and one at the\u00a0DMV.\u00a0 Losing either…<\/p>\n","protected":false},"author":1,"featured_media":0,"parent":0,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"footnotes":""},"class_list":["post-318","page","type-page","status-publish","hentry"],"_links":{"self":[{"href":"https:\/\/fullerton-dui-lawyer.com\/index.php?rest_route=\/wp\/v2\/pages\/318","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fullerton-dui-lawyer.com\/index.php?rest_route=\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/fullerton-dui-lawyer.com\/index.php?rest_route=\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/fullerton-dui-lawyer.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/fullerton-dui-lawyer.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=318"}],"version-history":[{"count":6,"href":"https:\/\/fullerton-dui-lawyer.com\/index.php?rest_route=\/wp\/v2\/pages\/318\/revisions"}],"predecessor-version":[{"id":578,"href":"https:\/\/fullerton-dui-lawyer.com\/index.php?rest_route=\/wp\/v2\/pages\/318\/revisions\/578"}],"wp:attachment":[{"href":"https:\/\/fullerton-dui-lawyer.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=318"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}