Interviewer: You said the officer will take someone’s license and give them a piece of paper that talks about the administrative hearing. What exactly does that paper say? If read, will a person understand the consequences?
Steve: I think the paper lays things out fairly sufficiently, if it is reviewed by the person or his/her attorney. It is a fairly well written document, in terms of the explanation. The first thing, the pink piece of paper serves as a temporary license for 30 days.
So that person is free to drive, to his or her heart’s content, as long as they want to and as much as they want to for the 30 days on that pink piece of paper. Then on the 31st day, when that pink piece of paper essentially expires, the suspension kicks into place.
Then the person cannot drive. If that person does drive he or she would be subject to arrest under 1461 of the vehicle code, which is a driving after suspension provision. So it is important the person does not drive after the suspension kicks in. However, people still do although they should not.
The paper also explains what happens at the hearing. It tells the person they are entitled to a hearing to determine the appropriateness, if you will, of the suspension by the DMV.
So let’s assume the person took a chemical test of breath, a breath test. The breath test was 0.09. Unless that person prevails at the administrative hearing, then the suspension will kick in on the 31st day for 4 months, a 120-day suspension.
So you go to the hearing. It is held at the DMV, by a hearing officer appointed by the director of the DMV. As discussed, the DMV is the agency that suspends the license, and they hire a hearing officer to conduct a fair hearing.
The officer is employed by the state, appointed by the director. That person is going to be the judge and jury of whether your license suspension is going to be set aside or not. When I explain that to clients, they sometimes look at me with a glazed look in their eyes. They ask, “Well, isn’t that person biased?”
There is bias by the hearing officer. I have firsthand experience with this. One day, I do not know when it will be, but one day I hope California changes the laws with respect to this particular administrative hearing.
A person really cannot get a fair hearing, and it is not surprising. Again, the person asks if they biased. You have to answer, “Yes, of course they are biased. They are extremely biased. They are not just biased. They are very biased.”
That is the truth. They say they are not biased, but they are. So if the hearing officer says, “I am not biased.” I am going to say, “Yes, you are.” Nine times out of ten, they are.
With that being said, the pink piece of paper tells you what the issues are. Let’s take a look, again, at the person with the 0.09. There are three issues litigated at the DMV; only three with respect to a chemical test of 0.08 or greater.
Issue #1: Did the officer have probable cause to believe the person was driving under the influence of alcohol? Issue #2: Was that person lawfully arrested for driving under the influence of alcohol? Issue #3: Was the person’s blood alcohol concentration, at the time of driving, 0.08 or more?
So that is it. It has nothing to do with the person’s guilt or innocence, with respect to the driving under the influence charge. That will actually be settled later in the criminal courts by a judge.
The judge is not biased, more often than not. I have various judges in mind that will listen and give the person their day in court. These judges will treat the case as important as it is, under the circumstances for a person out in the community. This person may be a professional; never arrested before and first time in the system.
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