Win Your DUI Criminal Defense and Force the Government to Prove Their Case – Part Five

The first thing most people think about once arrested for a drunken driving charge in California, is “What will happen to my license?”. In this day and age, keeping your drivers license and having a mode of transportation is very important to daily life and of course, making a living. When arrested for a DUI in California, timing is important and talking to a DUI Attorney in a timely manner can help keep your license once arrested.

Within 10 days of DUI arrest, you need to file the correct paperwork and contact the DMV if you have any chance of keeping your license or restricted license while you await your court trial. If you turn over and look at the back of the ticket you were issued by the arresting officer, you will see instructions of contacting the DMV and the Notice that informs you that you have to do so in order to maintain a driving status in the State of California.

Talking to an attorney soon after arrest is vitally important. A good DUI criminal defense lawyer will understand this and help the client to be seen as soon as possible to get the paperwork and DMV hearing process started. Any DUI Lawyer who has been doing this awhile, gives the intial consultation free of charge. This means that it is even more important to speak with a lawyer, especially to educate yourself on what to expect from the court trial and the DMV hearing. Since the intial consultation is free, it seems silly to not take advantage of the opportunity and talk to a criminal DUI defense Attorney regarding your drunken driving arrest.

In a DMV hearing, different rules of evidence and procedure apply than in the court process for a DUI case. The DMV APS Hearing is adjudicated by a “preponderance of the evidence” standard. Hearsay is even allowed, with some guidelines and exceptions. Even the citizen’s statement written in a police report is objectionable just as the chemical test and device itself used in a breath test usually lack good evidence foundations.

In the DMV APS hearing, expert witness can “testify” under Government Code 11514, and rebutting the “Official Duty Presumption” is basically after breaking down all of the rest, the real main goal of the hearing itself. One of the most important goals in the DMV hearing, as in most court cases, is the rebutting of the official duty presumption.

Prosecuted and judged by a DMV Hearing Officer who went to DMV training and is “most likely” NOT a lawyer, these APS hearings are very different than the Superior Court criminal court process. The Hearing Officer is not an administrative law judge who is usually required by the Government Code.

When a criminal defense attorney is contacted by a new client in the San Francisco Bay Area, they know that the arrest has been conducted by a California police officer. Meaning, the cops are well trained and the attorney needs to get to work on your case right away. For the standard first offense DMV APS hearing, the DMV will most likely not bring the arresting DUI officer in for the hearing.

Usually the DMV will rely on the reports and other documentary evidence. A good DUI attorney knows how important the right to witnesses can be and informs the client of the right to subpoena any witnesses, even the police officer who arrests you. Using a DMV subpoena and subpoena duces tecum available, the criminal attorney that you hire can bring in the arresting officer for the case if needed and it seems necessary.

Because of the rules and regulations involved and the different court appearances and DMV hearings that are involved, a good California DUI attorney can help one to make sense of the madness and win their Drunken Driving charges.

By: Amy Pedersen

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DUI Defence Attorneys

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