California DMV hearing: 10 Day Rule
In this article, DUI Defense Lawyer discusses California DMV hearing: 10 Day Rule.
Introduction to the California Law
In California, if you are arrested for a DUI, the arresting officer has to confiscate your California driver’s license and mail it to the DMV. This “confiscation” starts the suspension process. If you are holding a driver’s license from another state and are a non-resident of California, a police officer does not have “jurisdiction” over your driver’s license and can not confiscate it. If the police officer takes your “out-of-state” driver’s license, you can get it back at his station because California Police Officers are not authorized to mail out-of-state licenses to the DMV. Even if you are a non-resident, the police officer who arrested you for a DUI can start a “California suspension process” by issuing a form titled “DS 367”. Often, the ability to drive is critical to maintaining a job or going to school. A DUI conviction can result in jail time and also cause other consequences, such as loss of a driver’s license, the requirement to install an ignition interlock device, community service, high fines, and an increase in auto insurance rates. If you are charged with a DUI you should retain the services of a DUI lawyer to guide you through the DMV and court process and to see if your case can be defended in court to maximize the best outcome.
What is the “10-Day Rule” after DUI Arrest?
Upon a DUI arrest, the police officer who arrested you for the DUI, will confiscate your California license and issue a document that is known as a “temporary license” and a “notice of suspension”. This document is printed on “pink form” and gives you permission to drive for 30 days. This document is also a part of a “DS 367” DMV form that is known as “AGE 21 AND OLDER OFFICER’S STATEMENT”. The main purpose of this document is to explain to you your DMV hearing rights, give you notice that you MUST REQUEST A HEARING WITHIN 10 DAYS, prove that you were served with the suspension, and provide you a temporary license in lieu of the confiscated Driver’s License. The most important right on the form is the explanation of the right to have a hearing because the right to have a hearing expires 10 days after the arrest. Once it expires, it is very hard to get the hearing right back.
To request a DMV hearing you can call the DMV or call Los Angeles DUI attorney and the Los Angeles DUI attorney will contact the DMV on your behalf. If you decided to contact the DMV to request a hearing after your DUI arrest, you have to contact the Driver Safety Office or the DMV Mandatory Action Unit in Sacramento.
After a DUI arrest in Los Angeles, the arresting officer will submit to the DMV completed DS 367 form which explains the reason to contact you, provides blood alcohol level from the investigation, and explains how the officer determined you to be the driver prior to arresting you for a DUI in Los Angeles. These 3 issues – first, that the person was legally stopped, 2nd that the person was legally arrested, and 3d that at the time of driving, the person’s blood-alcohol level was above the legal limit are all that the DMV needs to prove to suspend a driver’s license.
What to ask the DMV after DUI Arrest?
At the time of placing a hearing request, you should also ask for a stay of suspension if having a license is important to you right now. By staying the suspension, you are allowed to continue to drive while the DUI-related DMV APS hearing is pending. Even if you do not have a good defense, remember, that because the DMV has to present the evidence, even if you don’t have a good case, you can win. This could happen when the police officer forgets to sign the DMV forms or put the time of driving. Also, staying the suspension allows you to coordinate suspensions between the DMV and the DUI court and avoid longer effect on your license.
When the DMV is notified that you will want a hearing, they will schedule a DMV hearing. At the hearing, a DMV hearing officer will present documentary evidence. You have a right to be represented by an attorney at that hearing, so we recommend contacting a Los Angeles DUI Attorney to help you defend such an APS hearing.
At the hearing, you can also subpoena records, such as any videos of the investigation, commonly called, Dash Cam or Body Cam footage. The DMV, sometimes, will subpoena witnesses or additional records for the hearing. In the event this happens, you have an opportunity to get a copy of the records. The DMV will inform you if they are planning to subpoena any witnesses as part of the discovery and you or your Los Angeles DUI Attorney can prepare to cross-examine of that witness.
The DMV hearing, if requested will be held in a “Driver Safety Office”, which is a division within the DMV that deal with such cases as DUI cases and cases involving elderly drivers. For Los Angeles DUI cases, there are 4 main Driver Safety Offices: Van Nuys, Commerce, El Segundo, and Covina. Each office has DMV hearing officers assigned to a particular hearing. A DMV hearing officer assigned to your case has a lot of power over what happens to your license. For that reason, choosing a good hearing officer will most likely be one of the most important things for how your hearing will proceed.
The hearings are governed by Title 13 of the California Code of Regulations. For example, to disqualify a DMV hearing officer, Title 13, section 115.10 is used.
What would happen if I ignore the “10-Day Rule”?
If you ignore the right to request a hearing within 10 days of arrest, your license will most likely be suspended 30 days after the arrest. Most of the time, the suspension is automatic because the hearing officers don’t look for a way to help you. The times you are able to avoid a suspension is when your Los Angeles DUI attorney argues and points out to the DMV the defects in their case. Without a DUI Attorney at the hearing, your license will be suspended in 30 days and you will have to jump through hoops to get it back. The DMV takes a position that a driver’s license is a privilege and not a right and therefore the procedure to keep a license are turned against drivers. You will need a help of a professional to fight for your license. Call our office to immediately talk with a Los Angeles DUI or Los Angeles DMV attorney who can help you defend your case.
RECENT COURT DECISION THAT CHANGES THE DMV HEARINGS
In April of 2022, the Court of Appels issued a decision that changed the way hearings are conducted after a DUI in Los Angeles. All administrative hearings in California are required to have a separation of power between the person who presents the case for the DMV and the person who makes a decision on that case. The one exception was the DMV hearing, where an administrative decision was made by a hearing officer after the same hearing officer presented the evidence for the DMV and examined witnesses for the DMV. This would be a violation of the California Government Code which states in section:
§ 11425.30. Specified persons not to serve as presiding officer
(a) A person may not serve as presiding officer in an adjudicative proceeding in any of the following circumstances:(1) The person has served as investigator, prosecutor, or advocate in the proceeding or its preadjudicative stage.
§ 14112. Application of Administrative Procedure Act
(a) All matters in a hearing not covered by this chapter shall be governed, as far as applicable, by Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code.(b) Subdivision (a) of Section 11425.30 of the Government Code does not apply to a proceeding for issuance, denial, revocation, or suspension of a driver’s license pursuant to this division.
If you have any questions, call (818) 921 7744 directly to the DMV attorney, who can help you defend your case!
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