The DMV's DUI License Suspension Hearing

DMV Hearings jpgAfter confiscating the arrestee's license and serving him or her with an order of suspension, the arresting officer will complete a document entitled "Officer's Statement-Admin Per Se". This one-page form sets forth the bare minimum facts necessary for the DMV to suspend the license: observing of driving (or statutory exceptions), probable cause, and blood alcohol test results. The document is signed under oath by the arresting officer and, if applicable, the breathalyzer operator. It is then supposed to be forwarded to the Department "immediately" —"on or before the end of the fifth ordinary business day following the arrest." [Veh C § 23158.5(c)] In fact, however, this deadline is routinely ignored with no consequences.

The individual then has 10 days within which to contact a local branch of the DMV's Office of Driver Safety and request a license suspension hearing.

Employees at these offices "encourage" those requesting a hearing to accept one conducted by telephone; often, they will simply arrange a telephone hearing without advising the applicant of the right to an in-person hearing. If a telephone hearing has been set, your DUI defense lawyer might wish to contact the Driver Safety office and reschedule it for an in-person hearing—at least, if he or she intends to subpoena the officer as a witness.

On being retained by a client, the DUI law firm should immediately ensure that a hearing has been requested within the 10 days. If it has not yet been done, the DUI lawyer should contact the appropriate field office and make the request.

What if a requested hearing cannot be scheduled before the 30-day temporary license expires? Vehicle Code § 13558(d) and (e) provide that your DUI lawyer can obtain a stay of the suspension if the request for a hearing was made within 10 days of the notice.

The department will conduct an "administrative review" of the case to ensure that the evidence, that is, the arresting officer's paperwork, complies with the requirements for an administrative suspension. In fact, these reviews are usually little more than rote box-checking by DMV clerical personnel. Quite often, such legal issues as probable cause and commission of the offense in the officer's presence are overlooked.

Once the review has been completed and the request by the licensee for a hearing made, a hearing date will be set. This can usually be arranged for a date and time mutually agreed upon by the DUI attorney and the department.

Note: As mentioned previously, if the department is unable to set a hearing within 30 days of the arrest (and this is increasingly common) and the request was originally made within 10 days of the arrest, an extension of the temporary license (a "stay") can be obtained. Although the stay may be for a period of time (30 or 60 days), it can be renewed; the licensee is entitled to a stay until a decision is rendered by the hearing officer.

The hearing will be conducted at a place designated by the department "as close as practicable to the place where the arrest occurred, unless the parties agree to a different location." [Veh C § 13558(b)] If the Driver Safety office nearest the arrest location is inconvenient to the client or his DUI attorney, a request for a transfer to a closer office can be made. The department will often grant such a request if they will not need the live testimony of the officer or other witness; of course, if counsel plans to subpoena the officer, witness fees will increase.

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