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DMV FAQs |
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There is only one legal presumption: Innocent until proven guilty. REQUESTING AN ADMIN PER SE HEARING WITH THE DMV You only have ten days from the date you were stopped to contact the DMV and request an admin per se hearing. In order to preserve your privilege to drive an automobile following an allegation of DUI in the State of California you must request a hearing with the DMV. If you do not request this hearing within the ten day period, your license will be suspended for one year. You will be given an option for a "phone hearing" or an "in-person hearing". An over-the-phone hearing may provide convenience to the party and may allow for you and your witness to discuss matters out-of-sight of the hearing officer. The in-person hearing offers the ability of the expert witness to appear in person with you and to make a positive impact. The hearing will be held at a DMV field office as near the alleged DUI site as practically possible. The DMV must give you ten days notice in advance of the hearing. DUI Attorneys will often request a continuance in order to get necessary discovery from the DMV as well as subpoena the arresting officers. A few days prior to the DMV hearing you or your DUI attorney will receive on your behalf, a copy of the officer's report, results of blood or breath sample results, the officer's sworn statement, your driving record and a record of any other legal infractions you may have. WHAT TO EXPECT AT THE ADMIN PER SE HEARING The person called "hearing officer" is little more than a DMV employee. The DMV is a provider of the DMV hearing officer, meaning there is an inherent conflict of interest in their position according to most legal professionals. The hearing officer is not trained in the law, do not apply the rules of evidence, and get to be your judge and your jury. Your adversary in this proceeding is the DMV. Yet, the hearing officer is provided a paycheck by the DMV, and is tasked with the job of making an "objective" decision based on the facts presented. Interestingly enough, the officer does not have to appear because it is presumed everything the officer wrote in his/her report is 100% true and accurate. If you do not call the officer to testify, everything in the police report will be admitted as true.EXPERT TESTIMONY AT DMV HEARINGS We have found that it is helpful to hire an expert to review the evidence the State has against you. If blood was drawn, our experts will review the procedures and protocols for collection of this specimen to assure it was properly procured and performed. If there are any reasons why procedures were not followed, this evidence will be excluded. In the case of breath tests, breath specimens are not collected and cannot be re-tested; however, in your defense it deserves a study by a toxicologist. Why? Most breathalyzer machines are ancient, while they are simple machines, if you looked around your own home you would be hard pressed to find even a twenty year old calculator much less another item of electronics that is still functioning and in use. That said, even the experts for the State will admit that there is a .02% margin of error. This means that if you blew a .08 BAC on the breathalyzer, you may have been a .06% and driving within the legal limits. In addition, it is possible that by the time the officers take your breath sample your blood alcohol levels may have risen to a level higher than that of which you had when you were actually operating the automobile, motorcycle or bike. The officer must see you operating the vehicle at a time when your blood alcohol level was .08% or above. When you ingest alcohol into your system, some of the variables as to when that alcohol will fully become integrated with your alveloar air in your lungs are what you ate for your last meal, time since your last meal, time of your last alcoholic beverage, course of drinks over course of time, and your height, weight, genetics, profession (such as painter), etc. Contact a DUI attorney to help you through this very difficult time. The only presumption is innocent until proven guilty. |
The Shefman Law Group
San Francisco: 415.357.3681 Toll Free: 877.366.7677 (877.FON.POPS)