If you do not request a DMV hearing within 10 days of the incident, then you lose your right to your hearing and your license will be automatically suspended. At the DMV hearing, a DMV officer plays the role of judge, jury, and prosecutor. So, at the hearing, its just a DMV officer and you or your attorney. At the San Diego DMV hearing, a hearing officer considers the reports prepared by police officers in your case, along with any evidence you present, and considers whether: 1) there was reasonable suspicion to stop you, 2) there was probable cause to arrest you, and 3) your blood alcohol level .08 or higher. If the hearing officer decides these questions against you, then your license will be suspended.
Unlike a criminal case, in which the prosecution has to prove guilt beyond a reasonable doubt, the ‘standard of proof’ at the DMV hearing is a preponderance of evidence. A ‘preponderance of evidence’ means more likely than not. So, the DMV hearing officer will suspend your license if the officer determines that it is more likely than not that there was reasonable suspicion to stop you and probable cause to arrest you, and that your BAC was .08% or higher. DMV hearings are much less formal than court hearings. They take place at a DMV branch office, not at a courthouse. You can have a DUI attorney San Diego at the DMV hearing, but there is no judge, no prosecutor, and no jury – just a number of small offices with a DMV officer and the driver and/or his representative. The hearing can also be argued by telephone.
Because the standard of proof is a preponderance of evidence, the police report and other evidence provided by the police officers to the DMV makes it easy for the hearing officer to rule against you – unless you have a good San Diego Drunk Driving attorney, who may be able to keep evidence out. The way San Diego DUI lawyers most often win DMV hearings is by keeping evidence out, so that the hearing officer cannot consider all the evidence. For example, in some cases, the person who claims to have seen the defendant drive is not a police officer, and the only evidence the hearing officer has in front of him at the hearing is a police report stating that another person told the officer that they saw the defendant driving. In cases like this, DUI attorney San Diego may be able to rely on the hearsay rule keep out the evidence that another person saw the defendant driving. And if an attorney keeps out the only evidence that a defendant was driving, then the hearing officer cannot rule against the defendant.
Other ways to keep out evidence involve pointing out “technical” problems with the police reports and other documents submitted by the arresting officer to the DMV so that the DMV officer is not allowed to consider those documents as evidence. For example, an officer has to submit a specific form required by the DMV within five days of the driving, or the form cannot be considered at your hearing. There is a part of the form where the police officer has to write down why you were arrested. If the officer just cuts that section from his police report and then pastes it on to the form, then the form cannot be considered at your hearing. An experienced DUI attorney in San Diego should know that if the officer forgets to include certain information, such as the time at which the on-the-scene breath tests were taken, then you may be able to exclude those results from evidence even if the test results are recorded in the police report.
If you win your DMV hearing, then the DMV will not suspend your license at that time. But, even if you win the DMV hearing, if you are later convicted of a DUI San Diego in your criminal case, then the DMV will suspend your license. For a first offense, if your license is suspended and you do nothing then the suspension will last for four months, during which time you cannot drive at all. But, instead of having a suspended license for four months it is possible to have a suspended license for one month and then have a restricted license for five months that allows you to drive to work and school if you do these three things: enroll in the first conviction program, show proof of insurance, and paid a $125 fee.