How to get a continuance for a DMV hearing.
If you are arrested for a DUI in Los Angeles after you are released, the arresting officer will give you at least the following 2 documents:
- The Citation to go to court.
- An “Age 21 and Over Officers Statement” form aka DS-367.
The Citation is the ticket that will have your court date, charges, and the location of the court on it. Sometimes the officers do not issue citations to persons arrested for a DUI in Los Angeles. When that happened to you, please contact Los Angeles DUI attorney so that we can locate your citation in the court’s system. If the citation was given to you but is misplaced and you do not show up to court, the court can issue a warrant for your arrest. Los Angeles DUI Attorney can go to court for you – if you retained Los Angeles DUI attorney, in most situations, you do not have to go to court.
THE DS 367
The DMV Form (DS-367) is the second document given to persons after an arrest for a DUI. This form is known as the “Age 21 and Over Officer Statement…” and it is used to start the administrative procedures with the DMV. As you might be aware, a Los Angeles DUI arrest (as any other DUI arrest) most often will result in two separate legal procedures that take place in 2 separate places.
- Court Criminal Case: where the prosecutor will file a criminal case against you for a DUI. This criminal case will be filed in one of several Courts in your county. For Los Angeles DUI cases, the cases are filed in Metropolitan Court, the Van Nuys Court, the Airport Court, etc.
- DMV Case: this is an administrative procedure for which a special branch of the DMV, called the Driver Safety Office, will have a hearing to decide if your license should be suspended. The hearing will be held in the Driver Safety Office near the location of the arrest. Such as Orange County cases are held in the Orange County Driver Safet Office located in the city of Orange. Cases in South and West LA are held in El Segundo Driver Safety Office located near Imperial and Sepulveda. Cases in the Valley are held in Van Nuys Driver safety office, etc.
WHAT IS DS-367
The DS-367 is a temporary license. It is pink in color. It serves as a notice of suspension that will happen in 30 days. It also is a notice of a hearing. If you read it carefully, you will see that you got only 10 days to request a hearing. The DMV will hold the hearing without you unless you request a formal hearing at which you can present evidence, establish a defense and keep your license. The right to request this hearing expires 10 days after the date of the arrest. The DMV is very harsh on the 10 days rule and if you did not request the hearing you will need a Los Angeles DUI Attorney to help you.
Admin Per Se DMV HEARING
This hearing is best done with your Los Angeles DUI Attorney. Once the hearing is requested by Los Angeles DUI Lawyer, the DMV will set it on a day to give sufficient time to mail discovery to you and your attorney. The discovery will consist of at least the DS 367 form that we discussed above and your DMV driving record. At the time the hearing is requested, the DMV does not usually have the police reports. The process is somewhat backward, once your Los Angeles DUI Attorney request the DMV hearing, the DMV will then contact the arresting agency and ask them to forward the police reports to them. Some DMV offices, such as Orange County DSO, will not schedule a hearing date until they receive the paperwork from the arresting officer. Other DMV offices, such as Van Nuys DSO, will schedule a hearing and then wait for the paperwork to arrive from the arresting agency. The hearing takes place in a small office and can be done by telephone. You can request that the hearing is held in person and the law allows you to object to a telephonic hearing and to have an in-person hearing:
Administrative Procedures Act Section 11440.30: “Conduct of hearings by telephone, television or other electronic means, …(b) the Presiding Officer may not conduct all or part of hearing by telephone, television, or other electronic means if a party objects”.
However, at the time of COVID, the Governor of the state of California, ordered that all DMV hearings are to be held by telephone only. This created a conflict between the law which clearly states that all hearings are to be held in person if the party objects and the Governor’s order. Right now most DMV DSO offices are not allowing in-person hearings.
WHEN DO YOU WANT TO CONTINUE THE HEARING?
There is only one reason you can continue a hearing: you are not ready because you need to present evidence that you do not have yet. This evidence may be (1) an interview with a witness; (2) videos from police body cameras or dash cameras; (3) Police CAD logs; (4) Breath Machine logs; (5) expert testimony, etc. But, when you continue a hearing – your driver’s license continues to be valid until the hearing.
The hearing officer can continue the hearing if he wants but may continue only for two weeks. Your DUI defense lawyer will usually get a longer continuance from the DMV. If the DMV denies a continuance request, you can ask for a “reconvene”, which is a procedure to start a hearing and then continue it on a different date. The “re-convening” allows you to stretch hearing, sometimes over several months, to conclude the hearing on a different. Often DUI defense lawyers will ask for a request to reconvene instead of continuance. This happens when the DMV starts the hearing by introducing the DMV exhibits. After introducing evidence (your Los Angeles DMV attorney must lodge objections), the DMV can conclude its presentation of the case and if your request to reconvene is granted, a new APS DMV hearing date will be picked by the DMV, and your Los Angeles DUI lawyer. When the DMV evidence is introduced, your Los Angeles DUI Attorney must raise objections, such as:
- Lack of proper foundation for the introduction of the evidence and
- Hearsay, which is a statement that is made outside of court by a non-testifying witness. A hearsay objection is based on a lack of opportunity to cross-examine the person who made the statement. Usually, the hearsay objection is made when the DS 367 or the police report that is used as evidence contains statements of other persons who cannot be cross-examined because they are not there. For DMV, the court in Davenport held that DS 367 is excepted from hearsay based on EC 1280 (official duty exception). Thus, unlike most court hearings, the DMV allows hearsay for DS 367 introductions.
Those foundational requirements are most often ignored by the DMV and the exhibits, no matter how poorly written, will be introduced into the DMV evidence. Our experienced Los Angeles DWI lawyers will know how to fight and what to do to fight the DMV driver’s license suspension. The objection to the introduction of evidence needs to be carefully explained to the DMV Hearing Officer or the DMV will ignore your objections and move the documents into evidence, which is how the DMV will justify the suspension of your driver’s license. Do not lose your driver’s license – contact Los Angeles DUI and Los Angeles DMV attorney now.
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