As we have discussed elsewhere in our website, the DMV hearing is especially important in your Orange County DUI case, as it affects your privilege to drive. This page summarizes some strategies to win your DUI DMV Hearing, and what works in defending a DUI case at the DMV.
DUI Procedures involved in a DUI Arrest
When you are arrested for a DUI, the police officer is trained to perform certain duties. If you have a California license, After a DUI arrest in California, your driver’s license is especially vulnerable from both the administrative action (the DMV admin per se proceedings) and any court DUI convictions, both of which can restrict or suspend your license, depending on what your driving record looked like before the current DUI matter occurred.
We try to stop your license from being suspended at all. The first step is to request a hearing from the DMV within 10 days of your arrest. The DMV is very strict about that deadline, so it’s extremely important to abide by that 10 day rule.
The DMV hearing doesn’t happen right away. When you make a hearing request, the DMV stops all possible action against your license, and then sets a hearing date in the future. In Orange County, that is about 30-45 days from the request date. Once the hearing is set, there are a few possible actions that may make your hearing more likely to be decided in your favor.
The Issues at a DMV hearing
- Were you administered a test within 3 hours of driving?
- Did the officer continuously observe you for 15 minutes before administering your breath test at the police station pursuant to Title 17 of the California regulations which outline the proper breath testing procedures?
- Was the officer properly trained and qualified to administer the breath test?
- Was the DS 367 Officers’ statement properly sworn and filled out?
- Was the official duty presumption rebutted, i.e. is there evidence that the officer did not properly perform his official duties?
The issues at a DMV Refusal Hearing
- Did the Peace Officer have reasonable cause to believe you were driving a motor vehicle in violation of Vehicle Code Section 23140, 23152, or 23153?
- Were you placed under lawful arrest?
- Were you told that, if you refused to submit to or failed to complete a test of your blood or breath, your driving privilege would be suspended for one year or revoked for two or three years?
- Did you refuse to submit to, or fail to complete, a blood or breath test after being requested to do so by a peace officer?
Subpoena Strategies for your DUI DMV Hearing
One option available to you and your attorney is to issue a subpoena for the police officer to show up and testify, and be cross examined. Should you do that? In my opinion, as an experienced Orange County DUI Lawyer, the answer is a firm “maybe“.
It’s usually better to look at the reports prepared by the officer, and see if any missing elements of the DMV’s case might exist. Since DMV cases can be won on what would be considered a “technicality”, it might actually hurt you to have the officer show up, testify, and “fill in the blanks” and help the DMV make their case with additional evidence.
On the other hand, if the police report shows information that is clearly incorrect, showing the DMV hearing officer that the police officer performed a “cut and paste”, or was mistaken about your case (confusing your case with another that same evening), or just plain lied, that can be powerful evidence that alone can win your DMV hearing.
Unfortunately, unlike a traffic ticket, the officer not showing up does not guarantee a win at the DMV. More likely, it would result in a continuance of the hearing. And, there is a cost for each subpoena of the officer.
You can also subpoena your patrol car video, or any other information, including the maintenance and calibration of the breath test machine or blood testing equipment for defenses.
Expert Witness Strategies for your DUI DMV Hearing
Having an expert witness can help you also. We have used expert witnesses in the field of police procedures, and alcohol testing procedures and intoxication levels, including proving the rising blood alcohol defense, with much success.
We have won DUI DMV hearings over the years for our clients.
Contact us if you would like us to help you, or if you have questions. We can help you.