With over thirty years of combined experience, including tenure with the Los Angeles District Attorney's Office, attorneys Jeffrey Lewis Gold and Nigel R. Witham understand what is important to you in handling your Driving Under the Influence case: a thorough investigation of all possible legal defenses in order to maximize chances of a dismissal or acquittal, the limitation of court penalties and the protection of your California and out- of- State driving privileges.

If you have been arrested for drunk driving, you will want answers to the following questions concerning the DMV. This website is intended to provide you exactly that necessary information.

• Can I avoid a license suspension?
• Did the breath machine used in my case operate properly?
• How can I re-analyze my blood sample?
• What is discovery and how do I get it?
• Did the police follow the correct constitutional and administrative procedures in my case?
• What are the consequences of a court conviction to my DMV record and my driving privileges?
• What is a DMV APS hearing and how do I win it?
• What can a DUI defense lawyer do for me?

If you have been arrested for drunk driving in California you need to take prompt action to protect your rights. In addition to the Court Proceedings, you must also promptly contact the Department of Motor Vehicles to schedule a separate hearing with them to save your license.

Following your arrest, the arresting agency should have provided you with a DMV Administrative Per Se Suspension/Revocation Order and Temporary Driver License. The Temporary License extends your driving privileges for thirty days and expires at midnight thirty days from the issue date of the Order. Your privilege to drive in California then faces the threat of suspension for four months!

However, you have the right to request a hearing to challenge that suspension and to extend your driving privileges beyond the thirty days until a decision on you right to drive has been made following the hearing. In order to secure a hearing and a stay of suspension you must contact the Driver Safety Office of the DMV for the area in which you were arrested within ten calendar days of receipt of your notice of suspension given you by the arresting officer. If you do not do this, you will lose your opportunity to challenge the DMV suspension. It is important to note that if you intend to retain an attorney to represent you, you should have the attorney make the contact with the DMV for you. Although you do not have the right to insist on a particular DMV hearing officer, an experienced DUI defense attorney will know which hearing officers are more likely to be fair to you and listen to the facts of your case in an unbiased manner. The hearing officer is normally assigned to your case when you schedule your DMV hearing. The following is a list of local DMV Driver Safety Offices dealing with APS Hearings:

City of Commerce

Address
5500 S. Eastern Ave., Suite 150,
90040-2960

General Information or to Make an Appointment
Phone (323) 724-4000
Fax (323) 724-9262
Street Map

Days and Hours Open

El Segundo

Address
390 N. Sepulveda Blvd.,
Suite 2075, 90245-4470

General Information or to Make an Appointment
Phone (310) 615-3500
Fax (310) 615-3581
Street Map

Days and Hours Open

Fresno

Address 1551 East Shaw,
Ste. 139, 93710-8025

General Information or to Make an Appointment
Phone (559) 488-4292
Fax (559) 445-5657
Street Map

Days and Hours Open

Irvine

Address
16735 Von Karman, #110,
92626

General Information or to Make an Appointment
Phone (949) 440-4416
Fax (949) 440-4424
Street Map

Days and Hours Open

Oakland

Address
303 Hegenberger Rd., Ste, 400,
94621-1419

General Information or to Make an Appointment
Phone (510) 563-8900
Fax (510) 563-8950
Street Map

Days and Hours Open

Oxnard

Address
4050 S. Saviers Rd.,
93033-6444

General Information or to Make an Appointment
Phone (805) 488-0863
Fax (805) 488-3219
Street Map

Days and Hours Open

Sacramento

Address
4700 Broadway, 2nd Floor,
95820-1501

General Information or to Make an Appointment
Phone (916) 227-2970
Fax (916) 227-2901
Street Map

Days and Hours Open

San Bernardino

Address
1845 Business Center Dr., Ste. 212,
92408-3447

General Information or to Make an Appointment
Phone (909) 383-7413
Fax (909) 383-7439
Street Map

Days and Hours Open

San Diego

Address
9174 Sky Park Court, Suite 200,
92123-2666

General Information or to Make an Appointment
Phone (858) 627-3901
Fax (858) 627-3925
Street Map

Days and Hours Open

San Jose

Address
111 W. Alma Ave., Room A,
95110-3630

General Information or to Make an Appointment
Phone (408) 277-1314
Fax (408) 277-1033
Street Map

Days and Hours Open

San Francisco

Address
1377 Fell St., 2nd Floor, 94117-2296

General Information or to Make an Appointment
Phone (415) 557-1170
Fax (415) 557-7375
Street Map

Days and Hours Open

Van Nuys

Address
6150 Van Nuys Blvd.,
Suite 205, 91401

General Information or to Make an Appointment
Phone (818) 376-4217
Fax (818) 376-4215
Street Map

Days and Hours Open

Prior to a DMV APS Hearing, you are entitled to discovery. This means that you are entitled to an advance copy of all documents that the DMV intends to rely on at the hearing. This will include a copy of the arresting officer's sworn statement (the "DS367"), a copy of any arrest and traffic collision reports, copies of any witness statements your DMV record. Some DMV Offices have a policy of requiring a written request for discovery and this should be sent as a matter of routine practice.

THE DMV HEARING

The Hearing itself can be held in person or over the phone. Most Hearings should be held in person so that the hearing officer can be engaged face to face. You must request an in -person Hearing; otherwise the DMV will schedule the Hearing telephonically as it is more convenient for them.

The Hearing is fairly informal but is audio- taped for the purpose of providing a record for appeal. A copy of the audiotape may be purchased from the DMV after the hearing. The Hearing Officer will ask those present to identify themselves for the record and will then move to identify all of the documents that the DMV intend to rely on. Unless the DMV Hearing Officer has previously noticed a problem with the evidence, the DMV will not have any live witness testimony and will rely on the documents introduced. You or your attorney will then be given an opportunity to object to the admissibility of any of the documents. If the DMV have secured the attendance of any witnesses, the Hearing Officer will then call those witnesses to testify. You or your attorney will be given an opportunity to cross-examine those witnesses. Following the close of the DMV's evidence, you will be given an opportunity to testify and to call witnesses in your defense.

After all evidence has been heard, you or your attorney will be given the right to make a closing argument and motion for a "set-aside" (withdrawal) of the suspension. It is likely that the Hearing Officer will decline to make a decision at the time of the Hearing and you will be informed that a written decision will be mailed to you within a specified period of time. Your driving privileges will be extended pending the Hearing Officer's decision.

ISSUES AT THE DMV HEARING

The DMV has the burden of establishing you were driving a motor vehicle with a blood or breath alcohol level of .08% or higher at the time of driving. The DMV must establish that you were arrested lawfully following a legal traffic stop based on probable cause. The DMV Hearing Officer will presume that the police followed correct procedure and that any breath or blood test results are accurate unless you or your attorney rebut this presumption with evidence to the contrary.

Areas of argument include the following:

1. Did the Officer stop you based on a reasonable suspicion that you committed a traffic offense or were driving under the influence?

One common issue is whether weaving in the lane is a sufficient basis for a traffic stop. California case law establishes that weaving within a lane is a sufficient basis for a stop only if it is "pronounced" and for a "substantial distance". The arresting officer must provide the DMV with sufficient facts to justify the traffic stop.

2. If the arresting officer did not see you driving, is the arrest lawful?

This depends on the facts and whether the officer had a reasonable basis to believe that you had been driving at a time when you were under the influence of alcohol. Factors to take into account are whether there were any witnesses to driving, any admissions of driving and whether the DMV can establish a time for driving. Generally, the DMV must establish that you drove a vehicle within three hours prior to the breath or blood test (California Vehicle Code section 23152(B).

3. Is the blood or breath test accurate?

The DMV will assume this to be the case unless you raise an argument that the test is not accurate or the police followed the incorrect procedure. There are a number of technical arguments that an extensively experienced DUI defense attorney can make in this regard. At a minimum it is necessary to investigate the qualifications of the breath test operator and whether they are certified on the particular breath machine, and the maintenance and calibration history of the breath test machine that was used in your case. In blood test cases, it is necessary to investigate the qualifications of the person drawing blood and the qualifications of the persons analyzing the sample. In addition it is advisable to re-test the blood sample for accuracy, level of preservative and bacterial growth. Working with an experienced blood/breath alcohol expert or toxicologist is essential in this regard.

4. Is the blood or breath test accurate for the time of driving?

Although the test results in your case may be over the legal limit, the DMV has the burden of establishing that you were over the legal limit at the time of driving. They will presume this to be the case without any further evidence if the test was taken within three hours of the time of driving. However, this presumption can be rebutted if you consumed alcohol close to the time of the traffic stop so you did not have time to fully absorb the alcohol at the time of driving. Your blood alcohol may therefore be shown to have been rising from the time of driving to the time of the chemical test. Your testimony, the testimony of any witnesses to your drinking pattern and the testimony of a toxicologist is essential to establish this argument. Your driving pattern, performance of field sobriety tests and the result of any hand- held breath machine will be relevant to this issue.

5. Did you refuse or fail to submit to a blood or breath test?

If you refused to submit to a test, the period of any license suspension will be longer. However, the DMV must establish that you were properly advised of your obligation to submit to a test, your choice of a breath or blood test and the consequences of refusal, including a one, two or three year license suspension or revocation. If you were not so advised or if the officer caused you confusion in this regard, the DMV cannot suspend you. Additionally, if you were involved in a traffic collision, and suffered a head injury, confusion over your obligations to the officer may be a defense.

6. Is the arresting officer's paperwork in order?

DMV hearings can be won on the basis of inadequate paperwork. The most important document at the DMV hearing is the arresting officer's sworn statement or DS367. This document must be signed under penalty of perjury and must include sufficient information about the essential facts of your case. The document must be trustworthy, consistent and signed in a timely manner. If it is not, it is hearsay and the DMV cannot rely on it. Timely objection must be made to the document. California case law establishes that the officer's unsworn arrest report cannot be used to supplement the sworn statement.

DMV PENALTIES

For a first offense the DMV will suspend your privilege to drive in California for a period of four months. However, you can request a restricted license after thirty days of the suspension. A restricted license allows you to drive to and from work and for the purposes of work and to and from any alcohol program. The restriction may be for a period of five months. In order to get a restricted license it is necessary to file a certificate with the DMV that you are enrolled in a three-month alcohol education program (AB541 Program). It is also necessary for you or your insurance company to file proof of insurance on an "SR22" form. The DMV will charge you a reinstatement fee to return your license.

For a second or subsequent arrest, the DMV will suspend your privilege to drive in California for a period of one year without the opportunity for any restriction privileges.

If you refused or failed to submit to a blood or breath test, the DMV will suspend your privilege to drive for one to three years, depending on whether you have any prior convictions. In this circumstance, you cannot apply for a restricted license during that period of suspension.

UNDER 21 YEARS

If you are under 21 years of age and you are arrested or detained after driving with a breath or blood alcohol level of .01% or more, the DMV will suspend your privilege to drive for a period of one year. The DMV may consider granting you a "critical need restricted license" if you demonstrate that you must drive for work, school or medical reasons and that public transport is inadequate for this purpose. The arresting agency may use a hand-held device called a "preliminary alcohol screening device" to measure your breath alcohol level for this purpose. However, if such a device is used, the DMV has the burden of calling witnesses to establish that the machine was working correctly, that it was operated correctly and that the officer was properly qualified to operate the device.

DMV CONSEQUENCES OF COURT CONVICTIONS

Independent of the Driver Safety Office of the DMV and the administrative hearing, the Mandatory Actions Unit of the DMV can suspend your privilege to drive upon receipt of an abstract (record) from the court that you have been convicted of a DUI. If the court restricted your privilege to drive, the DMV will suspend you unless you promptly file proof of insurance ( the SR22 Form). Some convictions carry a mandatory period of suspension for one year where a conviction for DUI with an accident resulting in personal injuries occurred (Vehicle Code Section 23153).

We have provided here a sense of the importance and urgency of dealing with the Department of Motor Vehicles in a prompt, knowledgeable and creative fashion. Please contact Gold and Witham, Attorneys at Law, immediately by telephone or e-mail contact to inquire how we will maximize the chances of preserving and promoting your most important of privileges -- your California Driver License!