The Administrative Suspension and the DMV
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As of this writing, the individual has ten days after service of the order within which to contact a local branch of the DTVIV's Office of Driver Safety and request a hearing.
Note: Previously, the licensee was given 30 days within which to request a hearing, but this was unilaterally shortened by the Department to ten days to decrease the number of requests and, thus, the growing caseload. See Vehicle Code § 13558(d). If the department cannot schedule a hearing within the 30 days and the applicant has made the request within ten days of notice of suspension, he will be granted a stay of the suspension. The stay of suspension in such a situation is not simply "departmental policy", but is required by law: Vehicle Code § 13558(e) mandate the extension.
The hearing will be conducted at a place designated by the department "as close as practicable to the place where the arrest occurred, unless the parties agree to a different location." [Veh C § 13558(b)] If the Driver Safety office nearest the arrest location is inconvenient to the client and counsel, a request for a transfer to a closer office can be made. The department will often grant such a request if they will not need the live testimony of the officer or other witness; conversely, of course, if counsel plans to subpoena the officer, witness fees will increase.
The issues at the administrative hearing are set forth in Veh C § 13558(c)(2) and 13557(b)(2):
- Did the officer have reasonable cause to believe the individual was driving a vehicle in violation of Veh C § 23152 or 23153?
- Was the person lawfully arrested?
- Was the person driving a vehicle with .08% blood-alcohol?
If the hearing is for a refusal, the first two issues remain the same, and two others replace the third as per § 13557(b)(1):
- Was the person properly advised of the consequences of the refusal?
- Did the person refuse to submit to, or fail to complete, the test?
It should be noted, that the issue of probable cause to arrest for drunk driving opens the door to cross-examination of the officer as to the entire range of symptoms observed: driving, appearance, field sobriety tests, statements, breath test, and the like.
Finally, the client who has received a 4-month admin per se suspension may wish to consider a procedure by which the suspension period can be reduced to 1 month, followed by issuance of a 5-month work-restricted license. This involves enrollment in a first offender DUI program, submission of an SR-22 (proof of insurance) and a $100 fee.
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