Little Known Facts About Your Rights in DUI and the DMV

Over the years, our office has run across a myriad of seldom used provisions that can have a big impact upon the rights of our clients in a DUI for alcohol or drugs and their rights with the DMV in being able to drive again, either sooner or immediately.

Brief Synopsis: There are a lot of facts and provisions that can find extremely helpful in a DUI or DMV Hearing. This articles attempts to share several of these that we have learned over time with experience.

El Segundo DMV

• At a DMV hearing, when the DMV provides discovery at the last minute, defendant should object to the hearing if it proceeds (if a continuance request is denied) based on Petrus v. DMV (2011) 194 Cal.App.4th 1240.

• Upon a conviction for DUI based on being under the influence of drugs, the DMV will suspend one’s driver’s license for six months. However, one may apply for a restricted license immediately. There is no thirty day hard restriction because there is no DMV hearing because there is no alcohol.

• Under Vehicle Code § 13353.3(c), the DMV cannot suspend one’s driving privilege for first time DUI for more than six months, i.e., the four month APS suspension and the 6 month DUI conviction suspension, when "arising out of the same occurrence," cannot be "stacked" or run consecutive to one another. ˑ

• If one is living outside of California, but the California DMV has a hold on one’s license, one can have the hold on one’s California license lifted by completing a 1650 waiver. A license may be suspended or on hold because someone did not complete DUI classes. One can complete such a form to have the hold lifted if they never plan on living in California in the future and do not need a California license.

• If the court dismisses the case, go to the DMV and get a Form DS-702. Then have the DA fill it out. You can then take it to the DMV to clear the suspension.

• Vehicle Code § 13353.2(e) gives you a right to a renewed DMV hearing if charges are not filed or are later dismissed, due to insufficient evidence. There are a number of things that qualify as insufficient evidence and a dismissal in the interest of justice does not necessarily prevent getting a new hearing. Talk to a DUI lawyer who is familiar with this type of request.

• If English is your second language or you do not even understand or speak English, the DMV must provide an interpreter at their cost at the DMV hearing. Government Code 1143.15(a) provides " The following state agencies shall provide language assistance in adjudicative proceedings to the extent provided in this article: . . . (14) Department of Motor Vehicles."

• A wet reckless on a second time DUI will allow the client to avoid the ignition interlock device requirement, but the DMV will require the client to complete a nine month alcohol awareness program to reinstate his or her driving privileges. It is a mistake for the judge to allow anything less, which would be extremely unusual anyways in our experience because whenever we have been lucky enough to negotiate a wet reckless on a second time DUI, the client almost always does the SB38 program, which is an eighteen month DUI program.

• A client with a prior DUI from out of state. How does the DMV prove that it “counts” as a DUI under California’s definition of DUI? After all, in other states, such as Florida (Draeger v. Reed (1999) 69 Cal.App.4th 1511, 1522, held that the Florida statute was not substantially similar to Vehicle Code § 23152 on its face because Florida does not have a driving requirement, simply a requirement that the person be in physical control of a vehicle) and Texas, it is possible to receive a DUI there which is based on conduct that would not suffice under California law.

The DMV in California must present the record of the conviction, not just the police report or a citation – and certainly not just the DMV history. Under People v. Guerrero (1988) 44 Cal.3d 343, 352, when the DMV is attempting to determine the nature of a prior conviction, it may look at the entire record of conviction, but when the record does not disclose any of the facts of the offense actually committed, the DMV must presume the prior conviction was for the least offense punishable under the out-of-California law.

For more information about the issues in this article about DUI and the DMV, please click on the following articles:

1. What is a DMV Hearing For a DUI?
2. I Lost My DMV Hearing For My DUI- Now What?
3. Second-Time DUI Offender Must Be Granted Restricted License After 90 Days of Actual Suspension

Contact us.

---