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Upon your arrest for DUI, two separate and distinct legal proceedings begin against you; a criminal case to determine if your actions were in contravention of the law and an administrative hearing conducted by the Department of Motor Vehicles to determine if your driving privilege should be suspended based on the facts and circumstances surrounding your DUI arrest.
Despite the fact that two proceedings are occurring from a single incident and that your driver’s license can be suspended by either the court or the DMV or both, this does not constitute a violation of the Double Jeopardy provisions of the constitution.
Further adding to the confusion regarding the two actions, the police offer who makes the arrest confiscates your driver’s license and provides you with a Notice of Suspension, which is in fact a California DMV document. This Notice acts as a temporary license for 30 days and, importantly, informs you that your license will automatically be suspended if you do not request a DMV Administrative Per Se (APS) hearing with 10 calendar days of your arrest.
The APS Hearing is Not a Criminal Trial
This fact can be considered a double-edged sword. Although you do not face monetary fines and fees or potential jail time if you lose your APS hearing, you are not afforded any constitutional protections you have as a defendant in a criminal proceeding, such as:
• You are in essence presumed guilty, as your license is automatically suspended if you fail to request a hearing.
• The burden of proof necessary for the DMV is the preponderance of the evidence rather than the much higher beyond a reasonable doubt standard required for a criminal conviction.
• The APS hearing is conducted by a DMV employee who acts both to present the evidentiary case against you and as the decision maker in the case. There is no independent judge and no jury.
• Although you are entitled to be represented by counsel of your choosing, this is not considered a right, which means you must pay for a Los Angeles DUI attorney to represent you.
Issues at the APS Hearing
To suspend your license, the DMV hearing officer must establish three facts:
1. Law enforcement had reasonable suspicion to believe you were driving a motor vehicle while under the influence of alcohol.
2. The arrest was lawful.
3. While driving, you had a BAC of 0.08 percent or greater.
If the circumstances of your arrest involved a refusal to submit to chemical testing of your BAC, two additional issues are relevant; whether you were advised of the consequences of refusing and whether subsequent to the warning you continued to refuse.
Based on the evidence presented, the DMV hearing officer will either set aside the action, which means your suspension is reversed, or sustain the action and the suspension will take effect.
Although neither result will have any direct impact on the pending criminal case, weaknesses in the evidence against you as potentially uncovered in the DMV hearing may prove beneficial.
While very few people would consider representing themselves in a criminal trial, it may seem to be a consideration to do so at a DMV hearing. Although it is true a hearing is more relaxed and informal than a trial, the evidence that can be persuasive in a set aside is often more technical and procedural in nature. A skilled Los Angeles DUI lawyer can in many instances make the difference.