The information contained on this page is meant for general informational purposes, only. This information should not be considered legal advice for any individual. Legal advice for each situation can only be obtained by conferencing directly with an attorney.
If you do not apply for a DMV hearing and a "stay" of your driver's license suspension within 10 days after your arrest (even though the hearing, itself, might be in the future), your California driving privilege will be suspended. The length of the suspension depends on a number of factors, including whether or not you have been convicted before of DUI.. This will happen even while the criminal case is still pending, even if that case is later reduced to a lesser charge.
The reason for this: when the officer stopped you, he/she not only acted as a police officer requiring you to deal with this case in the criminal courts, he/she also acted as an agent of the DMV, starting a completely different process, called an Administrative Process, against you. You can think the of two proceedings like two separate trains running down two parallel, but separate, tracks. If you do not stop the DMV train within the first 10 days, your license will be suspended thirty (30) days after your arrest.
It is best to have an attorney make the application, just to make sure that it is done correctly and also to set the hearing on an appropriate date for the attorney's calendar, If that can not be done the next best thing would be for you to make that application.
Regardless, if the application is not made within 10 calendar days, it will be too late. Sometimes, if good cause exists, we are able to get DMV hearings, even if application is made after the 10 day window. But do not bet on it.
3. What if I am from out of state and do not have a California license, do I still need to worry about setting a DMV hearing and getting a "stay"?
Yes. You should still apply for a DMV hearing and a "stay".
It is your privilege to drive in California, not the piece of paper, that is being suspended. If you do not wish that privilege to be suspended, you need to apply for that hearing. Also, the state that issued you your driver's license may take action against your privilege in that state, depending upon the nature of your suspension in California. This is a technical area for which you should seek the advice of an attorney experienced in this area.
Yes, but not for the reasons you may think. The DMV will not listen to reasons why you need to drive. Their decision will be based only on the evidence presented and the facts. These hearings are highly technical and won on technical issues. Lawyers expert in this area do have success! But, rarely are untrained people representing themselves successful in these hearings. Success depends on a current and thorough understanding of the laws and cases that are relevant in this area.
Anything from probation, a fine and a driver's license restriction or minimum "weekender work" jail sentence( for a first offense) to increased jail exposure, longer school and the requirement of placing an interlock on your ignition switch (for multiple offenders), to State prison and a driver's license revocation (for a serious felony). This is all separate and apart from the DMV action discussed above.
The answer depends on a number of factors:
The minimum sentence allowed under the law is either a fine of about $1500, 48 hours of jail time (usually allowed to be served as "weekender work") and/or a driver's license restriction. But, depending on the severity of your situation or your individual background, you could be exposed to greater sentencing. In a felony case, you could be sent to State Prison.
Only conferencing with an attorney in your case will give you information about your possible exposure to increased sentencing, and what can be done to lessen that exposure.
A well trained lawyer with experience in the area of DUI law can make a difference. A lawyer who specializes in this area can get cases dismissed, reduced or at the very least minimize the harm to the client.
The most complicated area is the relationship between the administrative and criminal laws. Only an experienced lawyer can guide you through this process and answer your questions.
Also, at other times defendants are frequently not aware of their obligations after a conviction. One of the busiest areas of our practice is helping people answer new criminal charges and complications caused by not completing their post conviction responsibilities to the court. This is because most defendants, no matter how hard they try, do not realize all of their obligations to the court when convicted, or for that matter, how to deal with the Department of Motor Vehicles after a suspension.
At the very least, most people charged with DUI need a knowledgeable and experienced lawyer to guide them through this complicated system.
7. I live out of state, do I need to return to California and what are some unusual problems I may face being from another state?
The first thing you should know is that if you are charged with misdemeanors, and most are, your attorney may appear for you, saving you return trips to California.
Second, there are many obligations created by a conviction or suspension that on their face require an out of state resident charged in California with DUI to return to California to complete. However, a knowledgeable attorney can arrange for most, if not all, of your obligations to be completed out of state.
No. You may, can be, and very often are charged with Driving Under the Influence with a blood level below the .08% level. This is especially true if you have a prior conviction within the last 10 years.
A DUI charge may be a felony if one of the following is true:
In most of these cases the Court has the option of reducing the charges to misdemeanors instead of felonies depending on how old the priors and the severity (or lack of severity) of the injuries.
10. Why am I charged with two violations that sound like DUI charges on my paperwork, when I only drove once?
These are simply two alternate ways of charging one act:
1. 23152(a) V.C. is the charge of driving under the influence (being an impaired driver), regardless of whether you are accused of being under the influence of alcohol or drugs (even prescription drugs), and regardless if your blood alcohol level was .08% or higher.
2. 23152 (b) V.C. is the charge of driving with a blood alcohol level of .08% or over, regardless of whether you were actually impaired as a driver.
However you could only be sentenced for one act, regardless. In fact, in almost all cases, even those where the person pleads guilty to one count, the other is dismissed by the prosecution, or ignored by the Court for the purposes of sentencing.
Our firm serves all of Northern California and the Bay Area with particular emphasis in criminal defense for Palo Alto, Redwood City, Sunnyvale, San Jose, Santa Clara County, San Mateo County and Alameda County.