You Got Arrested for a DUI…Why Set a DMV APS Hearing Within 10 Days?

  • April 5, 2016

Having talked to thousands of arrestees during my career as a criminal defense attorney for over fifteen years, I always ask a few initial questions just to check and see if there are any time clocks running.

Why?  Because there may deadlines that can be missed to not only preserve the status quo but also help obtain and preserve evidence, which can be helpful in defending against the charges.

In driving under the influence (DUI) arrests and cases, one question I always ask early in the conversation is whether the arrestee was given a pink DMV temporary license form (DMV form DS367).

If so, then there is only 10 days to contact the DMV Drivers Safety Office to request an administrative hearing to challenge a suspension of your driving privilege in 30 days.  At least in the Sacramento area, the DMV office will not schedule an administrative per se (APS) hearing when a request is made.

DMV will now wait until the police report is received and if there was a blood draw, until the blood draw results have come in.  In some cases, it is great so even in the worst case scenario, you may be able to keep driving for much longer than the 30 days after arrest.

In some cases, it can cause problems because the criminal case might start sooner and if you get a DUI conviction, a separate suspension can be triggered sooner than the DMV administrative suspension.  For example, in Sacramento County, the initial court dates are typically about four to six weeks after the arrest if you are released from custody on a misdemeanor.  In Yolo County, it might be a couple months or more.  When there is a blood draw, it could take even longer because the results of the blood test may not be done.

You might be wondering why it matters.  The reason is that in alcohol related DUI cases, there are two separate suspensions that can be imposed.  One is the “administrative per se” (APS) suspension and the other is a suspension due to a “conviction” for a DUI in court.  Without understanding how the two suspension work, you can end up with a longer suspension period because the two do not overlap, of things get really delayed, end up getting a license because the administrative suspension is over, then end up with a whole new suspension period if you get convicted of a DUI.

In a nutshell, a list of some of the major reasons to get the DMV APS hearing set:

1. Keep your ability to drive longer;

2. Subpoena records through the DMV process (maintenance/calibration records, patrol car videos, dispatch records, etc.);

3. Subpoena the officer in some cases to have them testify under oath and lock them in;

4. Know more about the case before even dealing with the criminal case;

5. Know more about the case than the prosecution;

6. Know when to get a SR22 to save on insurance costs;

7. Find best possible defenses early;

8. If it is a worst case scenario, know what to expect and make arrangements for how to get to work, school, etc.

Going through all of the above isn’t the easiest thing if you haven’t done it before.  Figuring out how to issue subpoenas and figuring out what is helpful or not is difficult if not impossible unless you have experience and training.

 

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