| DMV and court: two separate processes. | | | | The criminal case is held in a court of law, |
| | | | adjudicated by a lawfully sworn judge, who |
| When someone is charged with a DUI offense, | | | | must follow the California Evidence Code and |
| there are two separate battles to fight: the | | | | rules of court. The court case essentially |
| DMV and the criminal court case. The DMV | | | | uses the following criteria to convict the |
| will suspend driving privileges within 30 | | | | defendant of DUI: |
| days of an arrest for driving with an alleged | | | | |
| blood alcohol content (BAC) over .08 percent, | | | | 1. Driving pattern, following the NHTSA cues |
| unless an Administrative Per Se (APS) hearing | | | | of intoxicated driving |
| is requested within 10 days of the DUI | | | | |
| arrest. The court case commences with the | | | | 2. Physical appearance, reflecting signs of |
| arraignment date, which is usually held | | | | intoxication, such as red, watery eyes, |
| within 45 days of arrest. Both cases are | | | | slurred speech, unsteady gait, etc. |
| held in locations that are the closest, | | | | |
| geographically, to the site of the initial | | | | 3. Performance on field sobriety tests |
| DUI arrest. | | | | (FST's), both NHTSA approved and regularly |
| | | | administered (non-approved) FST's |
| The DMV and the criminal court case are | | | | |
| entirely separate and distinct, with each | | | | 4. Chemical test results. There are |
| having little to no effect on the other. | | | | essentially 2 bites at the same apple for |
| However, each of these entities will punish | | | | criminal prosecutors. The defendant may be |
| the DUI offender. The DMV will suspend | | | | charged with 23152(a)-driving with a BAC |
| driving privileges. The court will not only | | | | under .08 percent yet not driving with the |
| suspend driving privileges but will mandate | | | | caution characteristic of a sober person |
| fines, incarceration, and attendance at | | | | under the same or similar circumstances OR |
| alcohol education classes. The prevailing | | | | 23152(b)-the per se charge of driving with a |
| view is that there is no double jeopardy | | | | BAC at or above .08 percent. The (a) and (b) |
| issue, as the DMV sanctions are | | | | counts could even be charged together, |
| administrative, rather than punitive. | | | | convicting the defendant of both counts. The |
| | | | caveat here is that the defendant can only be |
| The DMV APS hearing is held in a Driver's | | | | punished once, although the punishment for |
| Safety office, administered by a DMV hearing | | | | either count is equally bad. |
| officer who will suspend driving privileges | | | | |
| bases on only 3 issues: | | | | The issue that must be driven home the most |
| | | | is this: even if the defendant is found not |
| 1. Did the officer have reasonable cause to | | | | guilty by way of a dismissal or plea bargain |
| believe the individual was driving a vehicle | | | | by the criminal court, this has no effect on |
| in violation of California Vehicle Code | | | | the DMV case! And if the DMV case is set |
| Sections 23152 or 23153? | | | | aside, this has no effect on the court case! |
| | | | The only time these two cases have an effect |
| 2. Was the defendant lawfully arrested? | | | | on one another is where the criminal court |
| | | | declares that the defendant is NOT GUILTY of |
| 3. Was the defendant driving a vehicle with a | | | | having a BAC of .08 percent or over. If this |
| BAC of .08 percent or over? | | | | happens, the DMV is ordered to reinstate the |
| | | | defendant's driving privileges. |