It’s called implied consent hearing and it’s before a Superior Court judge or district court judge. The judge will make the determination as to whether the suspension was justified or not.
Here in California, you actually go to a hearing officer inside of the DMV. That officer is hired by the DMV to conduct these hearings. That’s the person who is going to determine whether the suspension is justified or not. Somebody employed by the same entity that’s suspending your license in the first place. Does that make sense to you?
Interviewer: So, you’ll go in front of a person employed by the DMV instead of a superior court judge.
Steve: What I’m saying is, right, you’re going in front of somebody, a fact finder, who is going to make a decision in the case, employed by the same agency that’s suspending your license. What ends up happening is, more often the not, the DMV will find in favor of the DMV.
Interviewer: True. What we’re discussing is important. Is it so hard to win at these hearings because the DMV employee perceives the case an attack on the DMV? If they let you keep your license, it makes them look bad? Or are they fact based and they actually do look at whether it was reasonable that your license should be suspended or not?
Steve: I think the first question. It is really how things work in practice. I think that the hearing officers are trained that they have to suspend licenses. They’re trained to do it and it’s very robotic in nature.
Is it Possible to Prevail at the Hearing if You Have Retained an Attorney?
Interviewer: How hard are these hearings to prevail at? Have you prevailed ever? If you do, will they just give you a little bit or will they just give you the license back? What can you do?
Steve: Let me give you an example, yes, I do prevail. I prevail on a regular basis. In order to prevail a person needs to hire a lawyer that has technical proficiency in the California implied consent statute and the California DUI statute.
An Example of How an Attorney Can Help Your Defense During the DMV Hearing
Let me give you an example. I represent a client who was driving in a city in Pacifica, which is a city immediately south of the city of San Francisco. The highway is Highway 1. Highway 1 goes south and it goes down through Pacifica, Half-moon Bay and it’s a nice drive along the ocean. He was driving in Pacifica and he was going to enter the Highway 1 going southbound and according to the police reports there was a rollover accident off of, south of Devil’s slide.
They were closing down the highway. There was a road block closer to the rollover accident, but they had to divert traffic north of that roadblock so they closed the, according to reports, closed the highway north of that location in an intersection, Linda Mar and Highway 1.
My client was driving his vehicle, a pick-up truck, he was going to enter Highway 1 going south bound from Linda Mar, according to the reports there was a corporal who was there at the intersection stopping the south bound lanes of traffic when he made the left. He didn’t see the patrol vehicle with its emergency lights on, blew past it, he drove down on Highway 1, being pursued by that corporal, who didn’t know that there was a road block with another police cruiser there.
He collided or crashed into the back of a police cruiser. A sergeant was parked and had to jump out of the way in order to not be hit by the car. There was an accident, needless to say, and there was a crack in the windshield that according to the client was pre-existing, but they thought he hit his head on the windshield. They called an ambulance.
The ambulance arrived, put the client in a backboard, and transported him to San Francisco General Hospital, where he allegedly refused to take a blood test. They forced a blood test out of him and the results were a blood alcohol concentration of 0.33, which is over 4-times the legal limit in of 0.08 in California. That was his case.
Basically, I contacted the DMV on his behalf, I requested a hearing and we then went to the hearing. He didn’t need to go. A lot of times when client’s hire a lawyer or hire me, sometimes they’ll need to go and sometimes they won’t. It just depends whether they need to provide testimony or not.
Obviously he really didn’t have much testimony to give. I went, but before we went, we had a discovery. The reports, I don’t want to get into minutia, but after reviewing the reports very carefully, I found a technicality. I found a technicality and I went to the hearing and the hearing officer subpoenaed the police officer.
The police officer testified at the hearing that essentially he didn’t inform the client of certain mandatory advice that needs to be given before somebody is deemed to refuse a test. They wanted to suspend his license, not for 120 days, but for an entire year.
When you do that you are not even entitled to a license at all. You can’t drive to court or anywhere the whole year. The bottom line, the hearing officer tried to rehabilitate the officer, the best she knew how, but it didn’t work because I found a technicality that was so ironclad that the hearing officer had no choice other than to set aside the suspension and reissue the license full-time.
We’re still working on that case right now, it’s still in the criminal courts, but the bottom line is, he’s driving. He is driving now with a valid California license, even though he had a 0.33 blood alcohol concentration, he blew past a corporal who was shutting down the highway and smashed into a sergeant’s patrol vehicle. Have you ever heard of something like that before?
Interviewer: What that tells me is that this is the administrative hearing to try to get your license back is definitely something that only can be accomplished with a skilled lawyer. I would say completely impossible to prevail with that unless you hire counsel. You never know, I guess the situation could be very serious or not so serious. You may win you may lose, but I guess that’s what that story illustrates to me.
The Technical Side to Your DUI Case: There Are Many Issues to Consider
Steve: Yes. The moral of the story is, a person should not get derailed or demoralized over an arrest for DUI and think that it’s hopeless, but they should hire a skilled attorney that does this every day and knows the ins-and-outs of the system.
It isn’t hopeless. Many times, the defense is technical in nature. If I can do something like that for a client where no one would ever think that would be able to be done, then it can be done in other cases as well. That’s the moral of the story.
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