When a driver is arrested in Orange County for DUI, there is no question they have a criminal battle to fight with the Orange County Superior Court. They may have signed a Promise to Appear or a Citation which assigns a court location and court date at which they must appear; or have their attorney appear. In some instances, drivers have been forced to post bail for their release and the bail paperwork contains their court date. What many people do not understand, however, is that whether the criminal allegation is a misdemeanor DUI or a more serious Felony DUI; that same person will have a distinctly separate battle to fight with the California DMV.
The California Department of Motor Vehicles (DMV) is the government agency empowered to regulate the driving privilege of all motorists regardless of their age or the state in which they reside. That's right; the California DMV can control, suspend, or revoke the driving privilege of an out of state driver. So, whether you are 19 or 65 years of age; whether you live in California or Arizona; if you are arrested, cited, or detained for DUI in Orange County, you will be forced to conduct an Administrative Per Se Hearing at the Driver Safety Office (DSO) in the City of Orange. If you are under the age of 21 or are currently on probation for a previous DUI, you may have to appear at the DSO for a Zero-Tolerance Hearing.
It is also critically important to know that the DMV and the Orange County courts work entirely independent of one another. This is the absolute definition of "double jeopardy" as our citizens can be punished twice for the same event; however, this is permitted under California Law. It is common for a person to have a criminal case reduced or dismissed in the court, but the DMV is not affected and that same person ends up having their driving privilege suspended or revoked in a separate Administrative Law action by the DMV.
Automatic License Suspension
Most DUI incidents begin with an Orange County law enforcement officer contacting a driver during a traffic stop or during the investigation of a traffic accident. If during that contact the law enforcement officer concludes that you are under the influence of an intoxicating substance or have an alcohol concentration greater than .08% (.04% for commercial drivers and .01% for underage drivers), it is likely that you will be arrested or, in the very least, issued a citation which orders you to appear in court. This will result in the arresting officer confiscating your driver license and issuing you a pink form (DS-367) which notifies you that your driving privilege has been suspended.
Imagine that an Orange County law enforcement officer makes an assessment of your impairment level based on what he sees, smells, and concludes, and seizes your driver license. Based on the officer's training and experience, the DMV automatically presumes that you have violated the law and they extend their authority to the arresting officer to automatically seize and automatically suspend your driving privilege. In the legal community, this is referred to as the "Stop and Snatch." One of the most valuable property rights you hold has just been taken from you without a hearing, without an independent review of the facts, and without any form of Due Process. The government has just stolen a critically important document from you and California DUI Law permits it to occur.
If you are a driver holding an out-of-state driver license, a California Peace Officer is not authorized to seize your driver license; however, he is still required to provide you the pink "Notice of Suspension" advising you that the California DMV is working to suspend your driving privilege within our State.
Provided that your driver license was valid at the time of the arrest or accident, the officer must replace your seized driver license with a pink colored form that notifies you the DMV has suspended your driver license and that you may "temporarily" continue to drive for 30 days.
Protecting your Driving Privilege
If your California driver license has been seized by an Orange County law enforcement agency or, if you are an out-of-state driver who has just received a "Notice of Suspension" from a police officer, you must understand that the Automatic Suspension of your driving privilege has already begun. Unlike the court process where you are provided with a time, date, and location of where to appear to defend yourself; the California DMV does not automatically issue hearing dates to protect your driving privilege.
If your driver license has been seized, or if you have received a "Notice of Suspension" from an Orange County police officer, you must insure contact is made with the California DMV (Division of Driver Safety) within 10-calendar days or the automatic suspension of your driver license will go into effect. You must understand that this rule is cast in stone. With very rare exceptions; if you do not contact the DMV within the mandatory 10-day window, your driving privilege cannot be saved.
There is no question this rule forces you to make critical decisions about your defense with little or no information. In some instances, drivers don't understand why they were stopped. You may not understand why you were arrested or even what your alcohol level was. Nonetheless, you must act quickly to defend yourself or risk the automatic suspension or revocation of your driving privilege.
It is perfectly legal and acceptable for you to make contact with the Driver Safety Office yourself; however, dealing with the California DMV can be a confusing and harrowing experience. In all instances, it is in your best interest to contact a skilled Orange County DUI lawyer to assist you in making this critical contact. Your DUI lawyer will contact the DMV immediately on your behalf and ensure you enter the administrative law process properly. Handled properly, your DMV case will begin with:
- Timely contact to fulfill the 10-day window.
- Appropriate setting of a date for your Administrative Per Se (APS) Hearing.
- Stay of Suspension - You may continue driving until the APS process ends.
- Request for discovery - The DMV is mandated to send you the evidence they intend to use.
- Notice of Representation to the DMV - They know that you are protected by a DMV defense expert.
As simple as these steps may seem, it is critical that they be handled correctly or the DMV will automatically suspend your license.
REMEMBER, THE SUSPENSION OF YOUR LICENSE IS AUTOMATIC...
DEFENDING YOURSELF IS NOT!!
Contact The Law Offices of Rosanne Faul to ensure you enter this vital process quickly and professionally. She will immediately assign the DMV portion of your case to her DMV defense team and they will step in to make sure your rights are protected.
Entering the DMV Process
Once your DMV hearing has been set and your driving privilege extended, there is no time to waste. It has been the practice of the Driver Safety Office in the City of Orange to bring their Administrative Per Se (APS) hearings to conclusion without delay. Once contacted, the DSO prefers to bring a case to conclusion within six weeks. Drivers or unprepared attorneys can find themselves being forced to proceed in an APS hearing without adequate preparation because they did not work diligently to prepare their case. Within the world of the California driver, a DMV hearing officer has the power of a judge. Hearing officers are not sympathetic to an ill-prepared case and will not approve a request for continuance without showing good cause.
Because these hearings are so demanding and because there are very sensitive time elements in play, Orange County DUI attorney Rosanne Faul has partnered with California Drivers Advocates (CDA) to ensure her clients receive the "gold standard" in DMV defense. The DMV defense experts from CDA understand the nature of the DMV. They understand the attitudes and objectives of the DMV hearing officers and have the experience necessary to prepare your case quickly and professionally.
The DMV possesses the power to enforce the issuance of subpoenas. Using this process, your expert team from CDA will immediately begin the process of issuing subpoenas for evidence or, the personal appearance of witnesses; so that it is clear to the DMV you have acted in a timely manner. Every step of the process is properly documented so, if it becomes necessary to request a continuance of your hearing, proper justification can be demonstrated and "good cause" established.
There are three key elements to conducting a winning DMV Hearing:
- Investigation
- Preparation
- Execution
Each of these elements is critical and not mutually independent. All three must be professionally completed or the DMV Hearing is nothing more than a practice in futility. At an Administrative Per Se Hearing, the DMV is permitted to presume that the officer's arrest was lawful and that all of the evidence presented against you is accurate. The shocking truth of the DMV process is that you are "Presumed Guilty" and then challenged to prove your innocence. It is exactly the opposite of the protections you are guaranteed in a Court of Law. The rules of evidence are different, hearsay is permitted, and the police officer does not even have to appear to justify his actions.
Unbelievable Right? The DMV Defense Experts from CDA understand this, they train for this and they fight against it. As confounding as the DMV process seems, you are still entitled to Due Process of Law. That means that your DMV Defense Team is permitted to attack the evidence against you. They are permitted to introduce their own affirmative evidence to disprove the accuracy of the DMV's case. They are permitted to subpoena and examine the arresting officer and any other witnesses against you and, they are permitted to introduce witnesses on your behalf. In some instances the accused driver will testify but, there are many implications to consider before this occurs.
The DMV process is absolutely slanted in favor of the DMV, however, handled properly it may be possible to save your driving privilege.
Investigation
When our clients finally review the arrest reports written by the arresting officer, they are very often disappointed and offended by the content of the reports. Officers are trained to write their reports in a fashion designed to justify their arrests. The reports often do not reflect the recollections of our clients and many times are flat out fabrications of the truth. As disappointing as this may be, it is a fact that we deal with on a regular basis. If your DUI Defense Team were to base the totality of your defense upon the content of the police report, you would not stand a chance of winning your case.
The secret to success is to "investigate the investigation." While it is true there are limits to what your defense team may be able to access, a quality investigation can often reveal information that helps to rebut (disprove) the evidence documented by the arresting officer.
Recorded video from patrol cars or nearby businesses, interviews of witnesses, examination of the calibration and maintenance logs of breath machines, examination of chain of custody and certification issues on blood cases, are but a few of the points a quality DMV defense expert will be examining.
Preparation
Even the greatest legal minds in the world will tell you that "preparation" is a key to success. Reviewing all of the elements of a client's case, examining and researching the applicable case law and evidence codes; and, just an old fashioned approach to laying out an argument are critical to the successful defense of clients at the DMV.
Knowing the individual DMV hearing officers; knowing their individual tolerances for argument and the items they find relevant, is the sign of a true DMV Defense Expert. A commanding knowledge of witness examination and the cross-examination of expert witnesses and police officers cannot be overstated.
When your CDA representative enters the hearing, he or she will know the facts of your case, the law, and the hearing officer. He or she must enter the hearing with a sense of confidence, knowledge, and experience or the hearing will be a loss from the very beginning.
Execution
All of the investigation and preparation in the world is pointless if your DMV expert is not prepared to execute. The DMV hearing process is not kind. In the face of all this turmoil, your CDA representative will remain calm, professional, and resourceful. Keeping a cool head and thinking "two moves ahead" are all signs of an experienced advocate. Adapting as the evidence develops or unexpected issues arise, your DMV expert from California Drivers Advocates has experienced nearly every trick in the book.
Possessing affirmative evidence is not the same as getting that evidence admitted into Hearing. Knowing the law is not the same as properly arguing the law and preserving the record. Going through the motions of complaining about the process is not the same as grabbing the Hearing Officer's attention and making them realize they have a problem with their case.
There is no attorney, representative, or advocate who can honestly tell you the DMV process is easy. It is a terribly "one-sided" affair with all the obligation of proving your innocence resting on your representative's shoulders. If he or she doesn't "execute" you will not win your hearing.
The Law Offices of Rosanne Faul and the DMV experts from California Drivers Advocates are committed to investigating, preparing, and then executing at your DMV hearing.
