When a driver is arrested on suspicion of driving under the influence (DUI) of alcohol, and there is a blood alcohol content test with a .08 percent or greater, or the driver refused to take a breath or blood test after being arrested, there are two separate actions that will be taken. First, criminal charges for DUI will likely be filed in court. Second, there is a Department of Motor Vehicles (DMV) Administrative Per Se (APS) proceeding. The APS proceeding is commenced following the arrest when the officer sends the DS367 form (aka "Officer's Statement") to the DMV. The officer completes this form, which provides the driver's name and license number to the DMV, along with the chemical test results and a "Narrative" section which gives a brief description of the facts, observations, and circumstances that led to the officer's stop or contact with the driver. It is very important for the driver to request a hearing with the DMV within 10 days of the incident date. Otherwise, the completed DS367 form provides DMV with the legal authority to automatically suspend the person's driver's license 30 days from the incident date.
Hearing Issues
The hearing allows the driver and/or the driver's attorney to contest the potential suspension. The hearing issues will depend on what type of hearing is being conducted. For example, if the chemical test results were .08 or more B.A.C.; .01% or more B.A.C. while the driver was on DUI probation or under 21 years of age; or .04% or more B.A.C. while driving a commercial vehicle, the issues will be as follows:
1) Did the peace officer have reasonable cause to believe the driver was driving a motor vehicle in violation of California Vehicle Code Sections 23152, 23153, or 23154?
2) Was the driver lawfully detained while on DUI probation or lawfully arrested for DUI?
3) Was the person driving a motor vehicle when they had a .08% B.A.C.; .01% B.A.C. while on DUI probation or under 21 years of age; or .04% B.A.C. while driving a commercial vehicle?
If the DMV hearing officer concludes the answer to each of these questions is "yes," the person's driver's license will be ordered suspended.
If the person is alleged to have refused to submit to a breath or blood test, the issues will be slightly different. The first two issues are the same. The next two issues are as follows:
3) Was the driver told that his/her driving privilege would be suspended, or revoked for one, two, or three years if he/she refused to, or failed to complete a chemical test?
4) Did the driver actually refuse or fail to complete a chemical test, or PAS test (if on DUI probation or under 21), after being requested to do so by a peace officer?
Similar to the hearings involving a B.A.C. test, if the DMV hearing officer answer "yes" to each of the issues at the refusal hearing, the person's driver's license will be ordered suspended. Unfortunately, the consequences for a refusal are much more severe. The driver is not eligible for a restricted license during the suspension period. It will be a hard suspension (no driving at all) for one to three years. The length of suspension depends on whether the person has any prior DUI convictions. For example, if it's a first DUI offense the suspension will be one year. If it's a second DUI offense the suspension will be two years.
Los Angeles DUI Attorney
An experienced DUI lawyer can be very helpful with the DMV proceedings. Mistakes are sometimes made by the officer at the time of the arrest which a good lawyer can identify, and which will result in the DMV action being set aside (this means no suspension). Similarly, there may be problems with the accuracy of the breath or blood testing that was performed. If you have been arrested for DUI, it is best to hire a good DUI defense attorney to represent you for both the DMV hearing and the court case. Berglund Law Office, P.C. has helped hundreds of people in this situation. CONTACT our office to schedule a free and confidential consultation with attorney Robert D. Berglund. Call us today at (877) 667-1205 or fill out the CONTACT form.
