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Admin Per Se Hearing for DUI

Under FFDL 35, The DMV is required to suspend or revoke the driving privilege of any person arrested for driving under the influence (DUI) of alcohol or a combination of alcohol and drugs, who: takes a chemical (blood or breath) test which shows a blood alcohol concentration (BAC) level of 0.01% while on DUI probation, 0.04% while driving a commercial vehicle, and/or a 0.08% or more while driving a noncommercial vehicle, or refuses to take a chemical test.

What is an Admin Per Se Hearing for DUI?

At the time of arrest for DUI/DWI, the arresting Officer will confiscate your driver's license and issue an Order of Suspension or Revocation.  This order will include a 30-day temporary license that you may use to drive as long as you do not have another suspension or DMV hold.  At the end of the temporary driving period, your license will automatically suspended for the appropriate duration.  This can be avoided by contacting the DMV and requesting an Admin Per Se Hearing within 10-days of the arrest.  ​​The DMV will issue a stay order delaying the suspension until the results of the hearing are made which can take 2-3 months, allowing you to continue to drive.

An admin per se hearing can be requested to be done in person or over the phone.  At the hearing both sides will have the opportunity to present evidence and make arguments to DMV administrators who will ultimately make a ruling on whether your license should be suspended or revoked.  Failure to request a hearing within the 10-days of the arrest will forfeit your right to have the hearing and your license will be suspended at the end of the 30-days.

What are the Issues at the Hearing?

There are several issues that must be decided at the DMV hearing depending on the circumstances of your case.

If the arrest was for a DUI with chemical test results of .01% or more BAC while on DUI probation; .04% or more BAC in commercial motor vehicle; or .08% or more BAC; the following issues will be decided:

1)  Did the peace officer have reasonable cause to believe you were driving a motor vehicle in violation of VC 23152
2)  Were you lawfully detained while on DUI probation or lawfully arrested?
3)  Were you driving a motor vehicle when you had:  .01% or more BAC while on DUI probation; .04% or more BAC in commercial motor vehicle; or .08% or more BAC?

If you refused to complete a chemical test, the following additional issues will be decided:

4)  Were you told that your driving privilege would be suspended, or revoked for one, two, or three years if you refused to  submit to, or failed to complete a chemical test?
5)  Did you refuse or fail to complete a chemical test, or PAS test (DUI Probation), after being requested to do so by a peace officer?

How can you Save your Driver's License?

There are several arguments that can be made at your hearing to prevent your license from being suspended or revoked for a DUI.

The Detention was an Illegal Seizure under the 4th Amendment

When Law Enforcement pull you over, they have temporarily detained you under the 4th Amendment of the United States Constitution.  In order for this detention to be considered "legal", the officer must have had at least reasonable suspicion, meaning at least some fact or information that suggests a law has or will be broken.  Typically in a vehicle stop, the Officer claims to have seen a traffic violation including speeding, crossing lanes without turning signal, or an accident occurred.  The Prosecutor has the burden of proving the Officer had reasonable suspicion.  An experienced attorney will request video and audio recordings from the arresting Officer to challenge the reason for the stop.  

The Arrest was made without Probable Cause

Under the 4th Amendment of the United States Constitution, an Officer must have probable cause for crime they are arresting you for.  An Officer will establish probable cause for a DUI several ways.  He will record smells of alcohol on your breath or coming from your vehicle, he will note your performance on Field Sobriety Tests (FST), and the results from the preliminary alcohol screening test (PAS).  Each fact may be challenged in court.  The presence of alcohol odor has no bearing on whether your impaired or your BAC.  Officer routinely set drivers up for failure by administering confusing and complicated tests requiring extreme balance and precision without considering your medical and physical condition while being performed on uneven terrain with debris.  PAS devices attempt to estimate your BAC by using a mathematical to convert alcohol content in your lungs to estimate BAC.  This makes PAS results inherently less reliable allowing for challenge in court.

You were not Properly Advised of Your Obligation to submit to Chemical test

An arresting officer must state that you are required to submit to a blood or breath test or your license will be suspended for 1, 2, or 3 years.  If the officers admonishment was confusing or ambiguous than you may have defense to refusing to submit to a chemical test. 

You were not Under the Influence at the Time of Driving

Proving a driver was under influence or BAC was above a certain level at the time of driving is a difficult task for a prosecutor.  A simple traffic violation is not a smoking gun that you were under the influence, drivers receive tickets everyday without consuming alcohol or drugs.  In addition, an Officer typically does not obtain your BAC until significantly after starting his investigation.  Your BAC is constantly increasing or decreasing over time making it difficult to calculate a precise BAC at the time of driving when results may not be obtained until hours after the arrest.  Remember, having alcohol or drugs in your system while driving is not illegal, you must be under the influence of alcohol and drugs and in some charges a BAC of a certain level at the time of driving.  Your BAC at the police station hours later does not automatically make you guilty.  

Bottom line, you need an experienced attorney who is willing to walk you through the entire process, evaluate your case effectively for weaknesses and exploit the issues in your case to achieve the best results.  The Law Offices of Steven McNicholl has that experience and will get you through your case in the best shape possible.

See also

VC 23152 Driving Under the Influence

VC 23153 Driving Under the Influence with Injury

Field Sobriety Test

Chemical Test Refusal

 

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If you or a loved one has been charged with a crime, call the Law Offices of Steven McNicholl at (951) 405-0990. We have the skill and experience in San Bernardino County to protect your rights and get the best results in your case.

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