DMV Defense Lawyer’s Guide to Fighting License Suspensions in Palm Springs and Indio DUI Cases
A DMV lawyer is Essential to Getting the Best Result in an APS hearing
Attorney Joshua Mulligan is the best DMV Lawyer in the Coachella Valley:
- 100+ Five-Star Reviews
- State Bar Board Certified Criminal Law Specialist
- 20+ Years Experience
- Palm Springs Life “Top Lawyer” award every year since 2014
- Attorney Mulligan personally handles any DMV administrative hearings for the clients who hire him. He will not give your case to another attorney
What is an Administrative Alcohol Per Se Hearing?
"Per se" refers to a legal standard where a person's blood alcohol concentration (BAC) exceeds the statutory limit (e.g., 0.08% in California) regardless of their actual impairment. It establishes DUI liability based solely on the BAC level, without requiring additional proof of impaired driving or behavior. "Per se" is Latin for "by itself." California vehicle code section 23152(b) prohibits driving with over 0.08% BAC.
A DUI arrest in Palm Springs, with a 0.08 BAC, leads to a California DMV APS hearing to determine if your license will be suspended. This critical hearing reviews evidence like breathalyzer results and the probable cause for the traffic stop. Hiring a Palm Springs or Indio area DUI attorney ensures proper defense strategies to protect your driving privileges.
Understanding the Administrative Hearing Process
- The California Department of Motor Vehicles will conduct the hearing.
- The DMV hearing is a separate process from the criminal court process.
- You must request a hearing within 10 days of the arrest.
- The DMV process only determines if your driving privileges will be suspended.
Key Differences Between DMV Hearing and Criminal Court:
Here are the key differences between a DMV hearing and a criminal court case:
- Purpose:
- DMV Hearing: Determines if your driver's license should be suspended due to a DUI-related violation, focusing on administrative penalties.
- Criminal Case: Much broader scope of consequences such as fines, probation, or jail time. A conviction in criminal court will also trigger a license suspension.
- Burden of Proof:
- DMV: Uses a lower standard, "preponderance of evidence," meaning it's more likely than not that the violation occurred.
- Criminal Case: Requires proof "beyond a reasonable doubt," a much higher standard to convict.
- Procedure:
- DMV: Less formal, conducted by a DMV hearing officer, often over the phone.
- Criminal Case: Formal trial with a judge, prosecutor, a criminal defense lawyer, and possibly a jury.
- Focus:
- DMV: Focuses solely on issues like BAC levels, proper arrest procedures, and test results.
- Criminal Case: Examines all aspects of the DUI charge. The court may consider your background, character, and mitigation (like participating in AA or rehab).
- Outcome:
- DMV: Results in administrative actions like license suspension or revocation.
- Criminal Case: Can lead to criminal penalties, including fines, jail, probation, and DUI classes.
- Timing:
- DMV: Must be requested within 10 days of the arrest, separate from court dates.
- Criminal Case: Follows standard judicial timelines, often starting with an arraignment.
Both processes can significantly impact your life, and a skilled attorney can guide you through both effectively.
Why Bother with a DMV Hearing?
Requesting a DMV APS hearing is crucial, even if the court may independently suspend your license at the end of the criminal case. It provides significant advantages. First, without requesting a hearing, the DMV suspension occurs automatically, often without reviewing critical evidence which might reveal a strong defense. Second, the DMV process enables us to obtain key materials—such as police reports, dashcam and bodycam footage, and chemical test results—well before the arraignment in criminal court. This early access allows us to thoroughly analyze the evidence and develop a robust defense strategy, ensuring we are fully prepared for court proceedings. Taking this proactive step can be the difference between a hasty suspension and a successful defense. Prosecutors rarely review DUI bodycam or dashcam footage at the beginning stages of the case. Having a defense lawyer fully prepared from the outset can give you a significant advantage.
How to Prepare for a DMV Hearing Following a DUI Arrest
Steps to Request a Hearing:
- You MUST request the hearing within 10 days of the arrest. If you can't afford to hire an attorney right away, call to request the hearing yourself and get a lawyer later.
- You many be able to request a hearing through the online portal. Otherwise call the Mandatory Action Unit or the DMV Driver's Safety Office closest to where you were arrested.
- When you request the hearing make sure to ask for a "stay" - this means that the DMV will not suspend your license while you wait for the hearing.
Gathering Evidence and Documentation:
When you request the administrative per se hearing the DMV will provide you "discovery" shortly after they receive it. The discovery they send you will be the police report and the chemical test.
The next step is to subpoena the dashcam and bodycams from the police or California Highway Patrol. The DMV has a form subpoena (DS 2000 P) to use to seek this evidence. The bodycam will NOT be provided to you or your attorney unless it is specifically requested. The CHP and other police agencies also many have a small fee for for production of the evidence. The CHP also requires a protective order to be signed prior to release of the dashcam footage.
If you have witness you need to have the witness make a written statement and provide that to the DMV in advance of the hearing. If you have video, photos, or text message evidence, those should be put into a shareable format and provided to the DMV hearing officer in advance of the hearing.
You can also present expert testimony of a forensic toxicologist to show you were not intoxicated or the tests were flawed.
The arresting officers will usually not testify unless subpoenaed by the driver.
The Importance of a DUI Lawyer
If you can afford the services of an experienced DUI defense attorney, you should not do the hearing alone. The administrative hearing is not as complicated as a court hearing, but the rules are still complicated. For example, a plea for leniency with the DMV hearing officer will make no difference in the case. The California Evidence Code may not apply, but the rules are still complex and a bit convoluted. For example, hearsay rules are different than in court. If an officer saw your driving the hearsay statement is usually accepted as evidence at the hearing. But if a civilian witness saw the driving, he will need to testify live at the hearing.
The deck is stacked against you even with an attorney, but good DUI attorneys can often win as much as 1/3 of their hearings.
What Defenses Can Be Used in a California DMV Hearing?
There are three issues for the hearing:
- Was the person driving?
- Did police have probable cause for the traffic stop and arrest?
- Did the person have a BAC above 0.08% at the time of driving?
The defense will try to negate one of these elements. These are real examples of cases Attorney Mulligan achieved a "set aside" or dismissal at the admin per se hearing:
- Man has a car disabled on side of road. Police responded over an hour after the call. Man had a whiskey bottle in the car and drank after the car became disabled. Ruling: insufficient evidence to establish man was drinking at the time of driving.
- DMV notices driver of 0.08 APS hearing. The driver had refused to take the test and the 0.08 or higher notice was probably a mistake. The hearing officer found that the driver refused. Attorney Mulligan files administrative writ (similar to an appeal). Ruling: license suspension set aside, driver improperly noticed for the wrong type of hearing.
- The police received a 911 call about a very drunk woman driving to a specific residence. Police spoke with the woman who denied driving. The hearing went forward without civilian witness testimony. Ruling: Civilian statements inadmissible absent live testimony. No other driving evidence exists. APS action set aside.
- Careful review of discovery shows that an officer who administered chemical test had another officer sign testing declaration "under penalty of perjury." Ruling: officer testimony not credible, action set aside.
How Does License Suspension Work Under California's Administrative Per Se Law?
To determine how long of a license suspension you are facing, use this Calculator:
