A first offense DUI will usually carry a driver’s license suspension of 6 months (Vehicle Code 13352(a)(a)). However, an experienced attorney from the Orange County DUI Attorney Law Firm can help you get the DMV to set aside your driver’s license suspension by requesting and representing you in a DMV hearing and/ or prevail in your criminal case.
First Offense DUI and DMV hearing
After being arrested, if your BAC at the time of your arrest is .08% or higher, the arresting police officer will take your driver’s license and send it to the California Department of Motor Vehicles (DMV). If you or your lawyer does not request a DMV hearing, your driver’s license will be suspended automatically. However, you will have a 10-day period after you are arrested, to schedule your DMV hearing. After that 10-day period, you will have waived your right to request a hearing. The DMV hearing can be through the phone or in person. If you fail to request a DMV hearing, your license suspension will commence after your 30-day temporary driver’s license expires.
If you do request a DMV hearing within the 10-days allotted, your driver’s license suspension will be set aside for the duration of the DMV hearing. If you prevail at the DMV hearing, your license may still be suspended if you are not successful during the criminal process and you are convicted of a DUI.
During your DMV hearing, the DMV will want answers to three specific questions in order to determine if your driver’s license should be suspended or not.
- Was your arrest legal?
- When you were arrested, was your BAC level .08% or higher?
- Was there probable cause for the police officer to believe you were operating a motor vehicle under the influence?
Retaining a Private Attorney
You have the right to be represented by a DUI attorney at your DMV hearing if you wish. The DMV hearing is an entirely separate process from the criminal proceedings, but being represented by an attorney at the DMV hearing can significantly increase the possibility that your driver’s license will not be suspended. A public defender will not be available to you during the DMV hearing.
There are various benefits to retaining a private attorney to represent you during your DMV hearing, such as the attorney restoring your driver’s license as soon as possible. It also provides your private attorney the opportunity to bring to light any possible misconduct by the police and expose weaknesses in the case against you. If you hire an attorney for your DMV hearing, the attorney will be able to question and subpoena the arresting officer, as well as use any information produced at the hearing in the criminal process of your case.
If you prevail at your DMV hearing, your driver’s license suspension will not be imposed. On the other hand, if you lose the criminal process of your DUI, you can still be subject to a driver’s license suspension. If you lose the criminal process, the suspension will be for a period of 4 months to 3 years, depending on your prior DUI history and whether or not you subjected to a breath or blood test.
If your BAC level was below .08% when you were arrested, or if any chemical tests you submitted to result in a BAC level below .08%, the DMV will not try to impose a license suspension.
Court-mandated DMV license suspension
The DUI court case will address if you are guilty of committing the criminal act or not. The decision of the DMV hearing will have no influence on what occurs during the DUI court process.
If you are found to be not guilty of the DUI charges during the criminal process, the California DMV can reverse your driver’s license suspension. The license suspension reversal is dependent on the charge of driving with a BAC over .08% against you being overturned.
If your DUI charge is reduced to a reckless driving charge, it will not affect your DMV imposed driver license suspension.
If the DUI charge against you is dismissed or is not filed by the District Attorney due to lack of evidence after you have lost at the DMV hearing, you will be given the opportunity to present your case at an additional DMV hearing within one year after the date you were arrested.
Restricted License after a First Offense DUI
A restricted license only allows the individual issued the license to drive to and from work, school, and the court-mandated alcohol education classes the individual is required to participate in. The DMV allows for an individual to file a SR22 form for a restricted license, 30 days after the individual’s license suspension has been imposed. If the court has suspended your license, you are eligible to file for a restricted license immediately.
