Factors Considered By California DMV On Dealing With A DUI
Lawful Police Stop
The first is, were you lawfully stopped or did the police lawfully come in contact with you? If they pull you over, they have to have a reason to pull you over. They can’t just pull people over for no reason unless they have a checkpoint, then in which case, they have to abide by certain requirements. So, if it’s a lawful stop then you would move on to the next thing.
What happens a lot of times is the police don’t even come upon somebody driving. They may come upon somebody on foot who’s been in an accident and they’re walking to get help. In that case, they’re going to have to be able to determine when the person was driving.
So, they’re going to ask the person, were you driving that car down there? When did you get in the accident? Other times, they come upon an accident scene and they start asking people if they’ve been drinking. They get somebody who they think is a drunk driver and now they have to figure out when that person was driving and what vehicle they were driving.
So, issue number one is — this is what they’re going to go after when they do these DMV hearings — and I’ve done thousands of them — is was the person lawfully stopped and did they lawfully come in contact with the police.
Issue number two as it relates to a DUI and what they do at these DMV administrative per se hearings, has to do with whether or not the person was lawfully arrested. So, what does that mean?
That means that they’ve obviously arrested you. That’s why I ask when clients say, well I passed all of the field sobriety tests. Well, obviously not according to the police because they’re not allowed to arrest you unless you fail those tests.
So, they’re definitely going to say you failed the test. Otherwise, they wouldn’t have been able to arrest you. So, that’s one thing they’re going to do. They’re going to do the field sobriety tests. So, if you fail the field sobriety tests then they can lawfully arrest you.
Sometimes I’ve seen where people are so drunk, they can’t even do the field sobriety tests and then the police will write in that this person was so drunk we were afraid they were going to hurt themselves during the field sobriety test, so we determined that they were too intoxicated to drive.
We therefore arrested them at that point. So, issue number two, as it relates to DMV hearings in Los Angeles is, could the police lawfully arrest you. There are some circumstances where people refuse to do the field sobriety test which they’re allowed to. They refused to take the preliminary alcohol screen device which is another way the police can arrest you. If you blow a .08 or greater then you’re going to be arrested immediately.
Then the question becomes, can the police lawfully arrest you? They’re going to have to look at a lot of different factors. They’re going to look at how you were driving. Were you swerving all over the road? When you got out of the car were you staggering? How was your gait?
They’re going to look at whether your breath smelled like alcohol. They’re going to look at a whole host of different factors. They’re going to ask you if you’ve been drinking. If you say you had four drinks, obviously that might provide probable cause for them to arrest you.
Probable Cause to Make Arrest
So, the next issue is that they have to be able to formulate probable cause to arrest you. If they can get past that, then they move on to the next issue which is, was your blood alcohol level a .08 or greater.
There is presumption law that if you blew a .08 or greater or if your blood was a .08 or greater, then that’s a DUI and the DMV can lawfully suspend your license. Of course, it’s not always as easy as that. Sometimes people just refuse to take the test, so then they don’t have a .08 or greater.
Under those circumstances, they can get you for a refusal. You’d lose your driver’s license for a year with no restrictions. But of course, there are rules for refusals too. They have to tell you, if you don’t take this test, you’re going to lose your driver’s license for a year.
So, there’s a bunch of different roads they can go down trying to get that last tenant that they need during a DMV hearing in Los Angeles, California. But, all in all, they’re going to need to prove your blood alcohol level was a .08 or greater or that you refused to take the test.
Then they will have fulfilled their last requirement in order to suspend your license. On a first-time DUI, they’re going to suspend your license for a real thirty days where you can’t drive.
After that, you should be able to get it back on a restricted basis to drive to and from work, to and from school if you’re a student, to and from any alcohol program. They have you put an ignition interlock device in your car during that restriction. After the restriction is over, you are then free to get your driver’s license back, assuming that you meet certain requirements.
For more information on Dealing With A DUI At The California DMV, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (213) 542-0963 today.
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