In order to try and avoid a suspension of driving privileges following a DUI arrest, it is necessary to contact the Driver Safety Office of the DMV within ten days to request a DMV Hearing. The hearing provides an opportunity to convince a DMV Hearing Officer to set aside the suspension and return the drivers license to the Licensee. However, if the hearing is lost and a suspension is ordered, this is not necessarily the end of the road.

Following a license suspension by the DMV for a DUI, the Licensee has appeal rights. A request for an administrative review can be submitted to the Driver Safety Office within fourteen days of the decision to suspend. The Driver Safety Office must then forward the evidence including the recording of the hearing to the head office of the DMV in Sacramento for review. There is a $120 fee for this review. The review process takes about six weeks, but the suspension is not stayed pending review.

In addition, a Writ of Mandate challenging the decision can be filed with the Superior Court. This is a complex legal appeal process requiring a lot of paperwork and patience. The benefit is that a Judge, not the DMV, will make the decision and the Judge has discretion to stay the imposition of the suspension pending the outcome of the appeal process. However, the process can take months, and can be very expensive. This appeal process does not give an opportunity for a new and fresh hearing on the facts, but is a review of the evidence and arguments presented at the original DMV hearing. A judge cannot set aside the suspension unless evidence is presented that the DMV exceeded their discretion or made the wrong decision in law. This can be difficult to show, particularly if the decision was a judgement call based on credibility of witness testimony. 

A suspension of driving privileges can be devastating in Los Angeles due to the lack of public transport and the need to drive for work. If you have been arrested for DUI, please call Los Angeles and Orange County DMV lawyers Gold and Witham for a free consultation. 

California Vehicle Code section 23153 provides prohibition and punishment for misdemeanor and felony cases of drunk driving/ driving under the influence resulting in bodily injury to another.  Misdemeanors threaten up to one year county jail; felonies pose in excess of three years state prison, with an additional one year imposed for each proven act of "great bodily injury" to the given victims.

CVC requires more than just an act of DUI and a co-incident injury.  There must either be an act of legally negligent driving ("negligence"-- an act of neglected duty that proximately causes harm to another -- as would be the subject of a civil law suit) or an express violation of a Vehicle, Penal or Heath and Safety Code law, or both (speeding; illegal turns; under the influence drugs; hit and run; reckless driving).  The negligent or law-violating act is called the "underlying offense," and it must be expressly pleaded (delineated) in the Prosecution's original charging documents for the VC23153 to be a valid action separate from the more common VC23152 (non-injury) misdemeanor.

Whether felony or misdemeanor (it can be charged as either/or), the VC23153 charge threatens an extended period of license suspension:  one year, no driving (no restricted licence allowed) for the misdemeanor, 4 years, no driving for the felony. Fines up to $20,000.00 (felony), civil court monetary liability, extensive community service and insurance coverage loss are pending punishments additional to the incarceration.

Prosecutors have the discretion to reduce felonies to misdemeanors, and misdemeanors to infractions -- if they are give the motivation. Intimidation, in all truth, is not motivating to most modern prosecutors, despite the militant claims of the BigBazookaDUI types on the radio. If the Prosecutor loses a VC23153 trial, he merely loses a statistic ("Yes, The DA lost that one").  If you, the Defendant, lose a DUI injury case, you're looking at jail.  At prison.

The only thing standing between you and the Prosecutor is your felony DUI defense attorney. 

 Do you really want to swim these waters alone? 

There was an article in the Los Angeles Times today concerning the controversy surrounding the Orange County District Attorney's Office policy of offering to dismiss criminal charges in minor misdemeanor cases in return for a defendant submitting to a DNA sample. The policy is intended to gather as many DNA samples from defendants as possible to deter serious crime and to aid in solving serious crimes.

Detractors tend to come from two camps; law enforcement and civil rights advocates. Law enforcement officers in Orange County are voicing concern over the dismissal of criminal charges where there is strong evidence of guilt. Civil rights advocates are concerned about the District Attorney making important decisions on who should submit to a DNA test in circumstances where guilt has not been determined. The concern is that innocent people will be put under pressure to give a DNA sample to guarantee a dismissal.

In my experience, the policy is providing a useful negotiating tactic for clients charged with DUI in Orange County. Although it is rare for deputy DA's to agree to dismiss a DUI in return for a DNA sample, it is common for penalties in Orange County DUI cases to be reduced in return for a sample. Recently, a client of mine agreed to a DNA sample in return for a nine month alcohol program in a high BAC case, being reduced to a three month program. The process of providing a sample took about fifteen minutes and involved providing a sample of saliva using a mouth swab. There is a charge of $75 for the sample.

If you have any questions about penalties for a DUI in Orange County, please call DUI Defense Attorney Nigel Witham at 562 938 7771.

Sobriety checkpoints or DUI roadblocks are increasingly being favored by law enforcement agencies as a tool in arresting drunk drivers in Los Angeles and Orange Counties.

The courts have held that checkpoints are lawful so long as they follow guidelines established in the leading case of Ingersoll v. Palmer, 43 Cal. 3d 1321. These guidelines establish a set of rules intended to limit the intrusiveness of roadblocks to law abiding citizens. The checkpoint should be well lit and clearly sign posted as a checkpoint. There should be an opportunity to avoid the checkpoint (an escape route) although this is not mandatory. The intent to set up a checkpoint should be published in the local media in advance and the choice of location should be considered appropriate bearing in mind safety and traffic flow. In addition, field officers should be supervised and their discretion should be limited by clearly understood criteria. For example, there should be a formula to follow, such as stopping every car or every other car etc. Motorists should not be pulled over just for avoiding the checkpoint unless they commit a traffic violation.

Motorists should not be detained for longer than necessary to perform the function of the checkpoint and if there is evidence of impairment, such as an odor of alcohol in the car, the motorist should be ushered into a well lit area for field sobriety testing and DUI investigation.

Not all DUI sobriety checkpoints in Orange County and Los Angeles are well run according to the "Ingersoll" guidelines. A detailed discovery request for plans, photographs, policy guidelines and criteria for the checkpoint should be submitted in writing to the prosecuting agency. If there is concern as to the constitutionality of the checkpoint, a 1538.5 motion is the appropriate vehicle to argue for dismissal of DUI charges.

If you have been arrested for a DUI following a checkpoint detention, you should consult with a Los Angeles DUI lawyer to check on the validity of the procedures used in the roadblock. 

I was at the El Segundo driver safety office this week with a client who had been involved in a serious accident. She had suffered serious personal injuries including a head injury which resulted in a six week stay in hospital. The accident was her fault and she was investigated for a possible DUI prosecution by the Santa Monica Police. The evidence was that she admitted to drinking alcohol and appeared intoxicated following the accident. She had a prior DUI conviction on her record. However, she refused to submit to a blood test at the hospital so there was no evidence of her actual level of intoxication. She was facing a two year suspension because of the refusal and the prior conviction.

At the DMV hearing, I intended to present evidence of her injuries to show to the Hearing Officer that she could not be held accountable for the refusal. My client lost consciousness after the accident and "woke up" in pain at the hospital with a fracture to her spine and various other injuries. She remembers the police officer asking her questions, but felt like she was in a dream at the time.

Case law indicates that in a DMV Hearing based on a refusal to submit to a blood or breath test, if a person suffers personal injuries in an accident, and because of those injuries are incapable of consenting to a blood test, the DMV should set aside the suspension proceedings.

However, in this case, I had failed to notice that the arresting officer hadn't signed his sworn statement, and the hearing officer fairly pointed this out and gave me a set aside without the necessity of hearing my client's testimony. Sometimes, but not often, things turn out easier than you expected.

Sometimes it is easier to win a DMV Hearing based on a minor paperwork problem, than a real substantive defense.

If you have been arrested for a DUI and you are concerned about losing your license, please call Los Angeles DMV defense lawyers Gold and Witham for a free consultation.