Law Offices of Erik Steven Johnson

247 N. Third Street, San Jose, CA 95112

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San Jose DUI Attorney for DMV Hearing Defense Hearings

Mountain View DMV hearing lawyer

Santa Clara County Lawyer for Department of Motor Vehicles Hearings and Writs of Mandate

In California, a driver only has ten days from the date of a DUI arrest to request a hearing with the Department of Motor Vehicles (DMV) to preserve his or her driving privileges. This is entirely separate from a criminal case, and the person charged must be proactive with the DMV. Failing to request a hearing will result in a default driver's license suspension. If the individual acts within the ten days, they may obtain a "stay of suspension" beyond the temporary 30-day license received after an arrest.

License suspensions after a DUI can make it difficult to get to work or school or provide for your family. Contact the Law Offices of Erik Steven Johnson for more information on your rights regarding DMV hearings.

Your Right to an Administrative Hearing

Every California citizen has certain due process rights at these hearings, which include:

  • Confront a witnesses
  • Challenge evidence
  • Present evidence and defenses
  • Subpoena
  • Expert testimony
  • Representation by retained counsel
  • Temporary license pending outcome of hearing
  • Appeals

DMV hearings are conducted by non-lawyer employees of the DMV, who are referred to as "hearing officers." They are working for the DMV to determine whether the following has occurred:

  1. You were driving a motor vehicle.
  2. The police had probable cause to make the stop.
  3. You were placed under valid arrest.
  4. You were properly advised of implied consent laws.
  5. You were driving with a blood-alcohol content of .08 percent or greater.

As with the criminal court, you will want to confront the issues that the DMV hearing officer brings forward. This includes challenging items such as:

  • The "objective symptoms of intoxication," including watery eyes, slurred speech, unsteady gait, and the odor of alcohol.
  • Field sobriety tests, including horizontal nystagmus, one-leg stand, and line walking.
  • Violations of Title 17 requiring blood be taken in a medically approved manner.
  • Rising blood-alcohol defense or retrograde extrapolation.
  • External factors affecting breath results such as asthma inhalers or other medical conditions such as gastroesophageal reflux disease or the use of false teeth. These can give false readings on breath test results.

Without making objections and putting forth your defenses, the hearing officer may recommend your license suspension. An experienced DUI attorney can offer the advice and legal prowess necessary to address DMV hearing accusations.

Filing a Writ of Mandate

A "writ of mandate" is a court order requiring a government agency, such as the DMV, to reverse its decision. Sometimes, it is necessary to file a writ against the DMV after it makes a decision to suspend your driver's license in violation of due process.

Although more expensive than the DMV hearing, a writ of mandate is a far more effective way to preserve your driving rights. You have 34 days after a "notice of findings" or 94 days after a departmental review to file a writ in the superior court. The benefits of filing a writ of mandate include:

  • You will have an ex parte application and hearing for a stay of suspension while the writ is pending in court. This preserves your full privileges pending the outcome of the writ.
  • It gets your case into superior court and allows a real judge to hear and decide on the issues.
  • You can fully brief the court on the law and raise all the issues the DMV ignored or got wrong.
  • You can ask the DMV to compensate you for legal fees. This can force the DMV to settle the case in your favor even before it gets to the judge.

Laying the groundwork for a writ or later appeal begins immediately. Factual determinations and law violations should be reviewed and articulated, and the case against the DMV prepared sooner rather than later.

Preserving Your Right to Drive, Talk to Our Attorney

It is important that you consult an experienced criminal defense lawyer if you have been arrested for DUI. Attorney Erik Johnson is a methodical and dedicated lawyer serving clients in Santa Clara County and throughout the Bay Area. Contact our firm at 408-246-3004 to schedule your free consultation.

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