Under FFDL 36, The DMV is required to suspend or revoke the driving privilege of any person cited for a violation of VC 23136 or VC 23140 for a period of one year if you submitted to a chemical test and up to three years if a chemical test was refused.
What is an Admin Per Se Hearing for Underage Drinking and Driving?
At the time the citation is issued for underage drinking and driving, 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 being issued the citation. 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.
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 CVC §23136, or driving a motor vehicle while on probation in violation of CVC §23154?
2) Were you lawfully detained?
3) Were you driving a motor vehicle while under 21 years of age with a BAC level of 0.01% or greater, as measured by a PAS device or other chemical test?
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 to three years, or for two or three years if you were on probation, failed to complete or refused to submit to a PAS test, or other chemical test, while under age 21?
5) Did you refuse to submit to, or fail to complete, a PAS or other chemical test after being requested to do so by a peace officer?
How to 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 underage drinking and driving.
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.
There is insufficient evidence to show the BAC was .08 percent or above at the time of driving
In order for your license to be suspended, there must be sufficient evidence that you were driving with a BAC of .08 percent or above. Typically evidence is insufficient when there are gaps in the evidence that make it impossible to determine when an individual was last driving their vehicle or if they were in fact the driver.
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.
The chemical test results are invalid
Underage drinking and driving can involve extremely low levels of BAC. This may leave open avenues to challenge the results in the case. The Preliminary Alcohol Screening Test (PAS) must be calibrated and stored properly. Calibration records may show that a regular calibration date was missed. Chemical tests are similarly open to challenge. In addition, even if the results appear to be accurate they may be affected by recent use of mouth wash, acid reflex disease, or other medical conditions the officer was not aware of.
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.