Can I avoid a license suspension in my DUI?


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Can I avoid a license suspension in my DUI?

Avoiding a license suspension in a DUI is possible and is a common goal. Many people facing a DUI are much more concerned with the very real possibility of losing driving privileges, instead of the more remote possibility of jail time or other punishments from a standard first time DUI.

One of the principles at work in handling a DUI is that he DMV, and the court, are separate.  In California, the DMV has the ultimate jurisdiction over your driving privileges.  The court has jurisdiction over everything else, including jail times, fines, and other punishments, like community service.  The court cannot give you a license, or take away your license. (However, a court conviction can trigger a new, secondary suspension, as explained below).

How can I avoid a license suspension in my DUI?

Avoiding a license suspension in a DUI is only possible if you win both the DMV hearing, and also avoid a court conviction.

With the DMV, that means that you must contact the DMV and request a hearing within 10 days of your DUI arrest.  The DMV is very strict about the 10 day license hearing, so you must make sure that you, or your DUI lawyer, calls or faxes in a request to the Office of Driver Safety of the DMV in Orange County, if your DUI arrest was anywhere in Orange County.

From there, the DMV will do three things –

  1. They will stop the suspension of your license by expiration of the pink temporary 30 day license that you were given when your license was taken away, and will issue a new temporary license;
  2. They will share with you a copy of all police reports and other documents to be used against you in the hearing; and
  3. They will set a hearing date, usually 1-2 months in the future (this depends on what hearings are scheduled before you).

At the hearing, three issues will be examined:

  1. Did the officer have probable cause to pull you over (in non legalese, was there a violation of the law the officer can point to, to justify pulling the car over?)
  2. Did the officer follow all the proper procedures under the law to place you under lawful arrest? and
  3. Were you operating a motor vehicle, and above a .08% at the time of driving?

For cases alleging a refusal before the DMV, a fourth issue – was there a valid refusal? – will be examined.  That means that exactly what advisements were given (and the consequences of refusing) and what the response was to the officer, are important.

The DMV, in most cases, must decide whether the evidence to be introduced is allowed to be introduced (whether it is admissible), and then whether or not it proves all the issues above.  Objections are allowed to be made to each piece of evidence.  Defects in the documents that might seem to be technical in nature might be more important at the DMV, since they rely on admissible evidence from the documents primarily.

So, to avoid a suspension, you must first win the DMV hearing.  Most DMV hearings are won on the probable cause issue, although a significant number are also won with problems involved in the breath testing.

If you don’t win the DMV hearing, you are subject to, as a first time offender, a four month suspension.  Three out of those four months can be converted to a restricted license, which allows driving for work purposes.

Suspension From a Court Conviction

Avoiding a license suspension in a DUI with the court is another matter. Although the court is separate from the DMV, and it was mentioned above that the court cannot take away your license, upon conviction for any alcohol related offense, or any offense that adds points to a driving record, the DMV is contacted.

This is done through an electronic “abstract of judgment“, which is sent to the DMV upon judgment.

Upon receiving notice of a conviction for DUI, the DMV will immediately suspend a driver’s license again.  The court ordered suspension is for six months, but all drivers are immediately allowed to get a restricted driver’s license.

The way around this court ordered suspension is to avoid a conviction for an alcohol related conviction.  That might mean reducing the case to a different charge, like a public intoxication, a reckless driving without alcohol (a “dry reckless“), or another traffic violation that is not a DUI equivalent.

The other way to avoid a suspension from the court is to challenge the evidence, through a motion to dismiss, or a motion to suppress evidence, or through a plea bargain, or at a trial, if the jury or judge makes a finding of not guilty.

So is avoiding a license suspension in a DUI possible? The answer is yes — If you win the DMV hearing, and are found not guilty of DUI, or have a DUI case dismissed, then you will never face a suspension of  your driving privileges, for even one day.

If you have questions about a particular situation, or about avoiding a license suspension in a DUI and keeping your driving privileges, contact our firm.  We only handle DUI cases, and can help you with your case.



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