In California, alcohol-related DUI arrests result in two separate cases, which are a DUI charge with the courts and a Department of Motor Vehicle (DMV) hearing. While a DUI court case involves criminal charges with imprisonment and court-ordered fines as potential penalties, a DMV hearing consists of the suspension or revocation of your driver’s license as the only possible penalty. However, you only have ten days from the day of your DUI arrest to request a DMV hearing, failure to which California's DMV automatically suspends your license. The circumstances of your offense, including if you are a repeat offender, determine how long your license can be suspended.
With California having a low tolerance for DUI repeat offenders, harsher penalties accompany a second DUI offense. It is critical to have an experienced DUI attorney at your DUI court case and also during your DMV hearing. At the San Jose DUI Attorney Law Firm, we have experience dealing with DUI cases, including repeat offenses. We are committed to not only protecting your rights in the DUI court case but also ensure you avoid the suspension of your license in the DMV hearings.
Differentiating a DMV Hearing from a DUI Charge
After a DUI arrest, many people often wonder why they have to deal with two legal proceedings and the difference between the two. While a DUI charge in court is a criminal charge with criminal penalties, a DMV hearing is an administrative hearing whose only role is to determine whether the DMV will suspend your driver's license or not. Since only California's Department of Motor Vehicle (DMV) has the authority to suspend your driver’s license, DMV hearings are mandatory after a DUI arrest. In both the DMV hearing and the DUI criminal charge, second DUI offenses attract severe penalties compared to first offenses. To understand what it means to have your driver's license suspended in first and subsequent DUI offenses, it is crucial to know the difference between a DMV hearing and a DUI court case.
- DUI Court Case
A DUI court case is a criminal case hence has a similar court process to those of other crimes in California. Therefore, in a DUI court case, many things, including criminal penalties, are at stake. The penalties may include potential imprisonment, fines, mandatory DUI school completion, among other probation conditions. Additionally, a DUI court case can also result in the suspension of your driver's license. However, unlike in a DMV hearing, you have the right to a public defender in case you cannot afford a private attorney. Different people also handle a DUI court case, unlike in a DMV hearing where the review officer acts as prosecutor, judge, jury, and executioner. Mostly, compared to DMV hearings, DUI court cases are fairer.
- DMV Hearing
Under California laws, it is mandatory to have a DMV hearing for every DUI arrest. The hearing is held at a DMV office and not at a criminal court. In DMV hearings, the reviewing officer handles the entire process. While you may not have the right to a public defender, you can hire a private attorney to assist you during your DMV hearing. In the hearing, only your driving privileges are at stake as there are no other consequences besides having your license suspended if you lose the DMV hearing. Alcohol-related DUI arrest in California involves the arresting officer confiscating your driver’s license and issuing you with a notice of suspension’ that acts as a 30-days temporary license. Additionally, the document also serves as a prompt for you to request a DMV hearing within ten days.
A DMV hearing request can be by either you or your attorney, and the DMV office can conduct the hearing either in person or over the phone. However, how the DMV conducts a hearing depends on the circumstances of your case. If you or your attorney fail to request a DMV hearing within ten days of the DUI arrest, an automatic license suspension occurs at the end of the 30 days when your temporary license expires. For a first time DUI offender, the automatic license suspension will be for a minimum of four months while failure to request a DMV hearing for a second time DUI offender attracts between one year and two years license suspension. However, you may have California DMV reinstate your license after fulfilling several conditions including:
- Enrolling in a DUI school
- Paying the reinstatement fee
- Submitting an SR-22 insurance form
- Installing an ignition interlock device (IID) in your vehicle
While both a DUI court case and DMV hearing can trigger license suspension for a second offense, both suspension processes are separate and independent of each other. In addition to the court process involving criminal charges and DMV hearings being ve administrative, other factors that distinguish the two processes include:
- While you have the option of not having a DMV hearing or even an attorney at such a hearing, there are no such options in a DUI court case.
- While a win in your DMV hearing leads to the setting aside of your license suspension, the decision does not have a direct effect on your DUI court case. The DMV decision is separate and independent from the court’s final decisions. You could still face a court-triggered license suspension even after a successful DMV hearing.
- A reduction of your DUI charges to reckless driving will not have any effect on whether or not to suspend your driver's license through a DMV hearing.
- While a DMV hearing only threatens your driving privileges, DUI court proceedings have additional consequences, including imprisonment. For a second DUI offense, these consequences are even more severe.
DMV Hearing and Penalties for a Second DUI Offense
Considering the dangers of drunk driving and the regularity of the offense in California, the state does not tolerate repeat offenses. In the case of a second offense, California DUI laws are stringent, and a second DUI attracts more severe penalties than a first DUI. The stiff penalties apply for both DUI court cases and DMV hearings. Mostly, the outcome of your DMV hearing depends on three issues, including:
- Whether or not your arrest was lawful
- Whether or not your blood alcohol concentration (BAC) was 0.08% or higher
- Whether the arresting officer had sufficient probable cause to believe that you were driving while drunk.
Considering these elements of a DMV hearing, it is critical to have a DUI attorney at your hearing. Even though it is not a requirement, having an attorney at your DMV hearing can be the difference between having your license suspended or not. An experienced DUI attorney can successfully argue that your arrest was unlawful or that the arresting officer did not have sufficient probable cause to believe you were driving under the influence. Due to his/her experience dealing with DUI court cases, DUI attorney can easily expose any form of police misconduct, which can eventually lead to the setting aside of your license suspension. If necessary, a DUI attorney can even cross-examine the arresting officer or the officer’s sworn report during the DMV hearings.
Having a DUI attorney at your DMV hearing is also a plus for your DUI court case as the attorney can use the evidence gathered during the DMV hearing to challenge the prosecutor's arguments. For example, if the DMV set aside your license suspension based on police misconduct, your attorney can use the discovered evidence of wrongdoing to defend you in the court proceedings. Even though a win in your DMV does not directly affect your DUI court case, it is a good starting point. For example, you can use your DMV hearing win to negotiate a better deal during your plea bargain hearing. In some cases, the evidence in your DMV hearing, including police misconduct and other flaws in the case, may convince the prosecutor to drop your charges before your case goes to trial.
While a second offense does not necessarily mandate an automatic suspension of your driver’s license, if and when it comes to it, the suspension can last for up to two years. However, there are two different ways that a second DUI offense can trigger the suspension of your driver's license, including:
- Through a court-triggered license suspension. The suspension may happen after a California DUI conviction.
Even though court-triggered suspensions originate from courts, the judge does not have the power to impose the license suspension. Upon a DUI conviction, the court notifies California's Department of Motor Vehicle about their decision and recommend the suspension of your driver's license. In case of a second DUI offense, DMV imposes a two years suspension. However, in case your DUI court case collapses, or you are declared not guilty, you will avoid a court-based license suspension.
Additionally, with the help of a skilled DUI attorney, you can avoid a court-triggered license suspension by having your charges reduced to other offenses that do not warrant a court-based suspension such as reckless driving. However, these negotiations can only happen at the DUI plea bargaining level and not after sentencing. It is critical to note that California laws allow you to continue driving even after a court-triggered license suspension as long as you agree to some conditions like having an IID installed in your car.
- Through an administrative license suspension triggered by a failure to request a DMV hearing within ten days of a DUI arrest, or by losing the DMV hearing. This form of license suspension is known as Administrative Per Se (APS) suspension.
According to California laws, a second DUI offense is essentially an APS violation. Therefore, the DMV will seek to automatically suspend your driver's license, especially if you fail to request a hearing within ten days of the DUI arrest. Unlike in a court-triggered suspension where the courts only recommend license suspension, California DMV does not need to make consultation before suspending or revoking your license. Therefore, it is advisable to request a DMV hearing immediately after your DUI arrest.
However, you are not guilty of an Administrative Per Se violation if your Blood Alcohol Concentration (BAC) levels are below 0.08%. Even though you may still face DUI court charges, DMV will not impose an administrative license suspension. However, your license could yet have a court-triggered suspension. For BAC levels of 0.08% or higher, you will need to request a DMV hearing. In case of a second DUI offense that is within ten years of the first one, the DMV only imposes an Administrative Per Se suspension of one year. Similar to the court-triggered suspension, California laws allow you to continue driving even after an APS license suspension as long as you agree to some requirements, including having an IID installed in your car.
As an additional consequence in both forms of license suspension, a second DUI offense may result in increased auto insurance rates. A repeat offense makes your insurer view you as a high-risk client hence the elevated rates. In most cases, auto insurers keep rates elevated for a minimum period of three years. Since, for a second DUI offense, the law requires you to maintain auto insurance that meets the minimum requirement, your auto insurance can suddenly become very costly.
Restricted License after a Second DUI Offense
Regardless of the license suspension process, California laws allow drivers to continue driving even after license suspension. After a second DUI offense, driving privileges can be obtained either through a regular restricted license or an IID restricted license. An ignition interlock device (IID) is a form of breathalyzer that prevents the car from starting if it detects that the driver is drunk.
California DMV allows you to continue driving even after a license suspension if you agree to have such a device installed in your car. In addition to the IID, you will have to complete an SR22 insurance form, pay relevant fees, and complete a DUI education program before you get an IID restricted license. For a second DUI offense, the restricted license has a one year expiry period.
A regular restricted license is only different from an IID restricted license in that it is mostly for people who depend on driving as a source of income, such as commercial drivers and those who heavily rely on driving to get to and from work. The restricted license allows them to drive during their employment. Offenders can also use restricted license to drive to and from court-sanctioned DUI education classes or programs. It is advisable to request a restricted license immediately, a court-triggered license suspension. Similar to the IID restricted license, you will also be required to install an IID in your car and file an SR22 form before you get a restricted license. California DMV may even require you to maintain the SR22 for a further three years after the reinstatement of your driver's license.
Even though the penalty for a second DUI offense within ten years is one-year license suspension, you can have a restricted license after 90 days if you agree to a chemical test and subsequently install an IID in your car for 12 months. For a second DUI, refusing to submit to a chemical test can lead to harsher penalties, including a license revocation of two years. Additionally, you will not be eligible for a restricted license during the license suspension period. Essentially, you will not be able to legally drive in California until the DMV sets aside your license suspension.
Revoked License after a Second DUI Offense
While your license suspension is temporary and you can even have a reinstatement before the expiry of the suspension period, a revocation is permanent. In this case, California DMV permanently takes away your driving privileges. License revocation means you cannot legally drive anywhere in California. While some revocation can last up to five years, some are indefinite. The nature of your revocation depends on several factors, including your driving record, your criminal history, and whether or not you have any physical or mental impairment.
While many DUI circumstances can lead to a revoked license, a repeat offense negatively affects your driving record, hence increases the chances of license revocation. With California DMV recording your traffic violations in the form of points, having many points can be detrimental to your DMV hearing. Even though you can accumulate points for different reasons, points accumulated from repeat DUI offenses make the DMV decision to suspend or revoke your license easier.
Second DUI Offense while on Probation
DUI probation is one of the potential penalties for both first time and repeat-offenders in California. However, you are only eligible for probation if your DUI charge is a misdemeanor and not a felony. Barring any aggravating factors, the court usually substitutes prison time with DUI probation for most first-time DUI offenders and some second-time offenders. With California having a very low tolerance for DUI probation violations, a second DUI arrest while on probation for the first offense can have severe consequences on both your DUI court case and the DMV hearing. In addition to the court case and DMV hearing, you will face a separate violation of probation case. The most notable consequences of a second DUI offense while on probation include:
- You may have to pay hefty fines for probation violation
- Your eligibility for a restricted license decreases
- Your BAC standard decreases from 0.085 to 0.01%
In addition to these penalties, a probation violation complicates your DMV hearing and gives the state an extra reason to suspend or revoke your driving privileges.
Legal Defense at a DMV Hearing for a Second DUI Offense
Even though a DMV hearing is not a court case and you do not have the right to a public defender, you can still hire a private attorney to represent you. In most cases, the legal defense in a DMV hearing is similar to potential defenses in the related DUI court case. Some of the common defenses in both DUI court case and a DMV hearing for a second offense include:
- Lack of Probable Cause for your Arrest: In this defense, you need to convince the DMV officer that the police did not have a sufficient reason for your DUI arrest. You could argue that you did not exhibit any behaviors like over-speeding that could have prompted the police to suspect you violated California's DUI laws.
- Challenging the Officers Sworn Report: In addition to an unlawful DUI arrest, you could also argue that the officer was biased in his/her observations; hence his/her testimony or report is false. However, for this defense to be successful, you need to provide alternative explanations to the officer's observation. For example, while the officer might have concluded intoxication because of your bloodshot eyes, you can explain how allergies and irritants were the cause of the red eyes and not alcohol.
- Challenging the Sobriety Tests Results. You need to convince the DMV officer that the arresting officer did not follow proper procedures while administering field sobriety tests and during the subsequent DUI arrest. In all the three defenses, the goal is to establish police misconduct and other flaws in the arresting process. Proof of an unlawful arrest and related process may be enough reason for the DMV to set aside your license suspension or revocation.
Contact a San Jose DUI Lawyer Near Me
In addition to increased criminal penalties, a second DUI offense can result in the temporary or permanent loss of your California driving privileges. While it is critical to have the services of a DUI attorney at your DUI court case, it is just as essential to have an attorney at your DMV hearing. If you are in San Jose and are battling a DUI charge as well as a DMV hearing for a second offense, consider consulting our skilled DUI attorneys at the San Jose DUI Attorney Law Firm. With our vast experience in DUI cases, we will not only defend your rights in the DUI court case, but we will also assist you in the DMV hearings to ensure your license is not suspended or revoked. For more details about our services, contact us at 408-777-6630.