Chico California DUI King Joe VanDervoort Attorney at Law

DMV Hearing Information RE: Appellate Rights, etc.

DMV Hearing Information
RE: Appellate Rights, Writes and Appeals from DMV hearing Decisions

If your DMV hearing was held in Oroville, which is usually the case, the matter will have been taken under submission by the hearing officer and the hearing officer will later issue a written ruling.

The ruling will include findings in regard to:

1. probable cause to stop your vehicle
2. objective symptoms of driving under the influence
3. reasonable cause for the arrest
4. whether or not the matter was a legal arrest and why
5. what the chemical test results were, if any, and whether the various rights were properly observed during the chemical test
6. whether there was enough evidence to find driving with a .08 blood alcohol or above
7. if there was a refusal to submit to a chemical test, and
8. the decision

The main issues at a DMV hearing are as follows:

1. Did the Peace Officer have reasonable cause to believe you were driving a vehicle while under the influence of alcohol?
2. Were you placed under lawful arrest?
3. Were you driving a motor vehicle when you had a .08 or more by weight of alcohol in your blood?
4. Did you refuse or fail to complete or take a test of your blood or breath after being asked to do so by a police officer if your case involves an allegation of refusal to take the test?
5. Are you an adult or a minor?
6. Do you have a Class A, B or C driver's license?

The standard for minors, which means under the age of 21 for DMV, is .01 or more. The standard for a commercial driver is .04 or more.

The DMV has the burden of proving you guilty by a preponderance of the evidence, which means 51%.

You'll receive in the mail the decisions of the Department of Motor Vehicles.

You have a right to seek a review of this. by the Sacramento Department of Motor Vehicles if you request it within 15 days of the date on the decision, not the date you received it.

Late requests are not considered under most circumstances.

This office charges a flat fee to file a request for re-hearing along with all the various documents involved with the Department of Motor Vehicles.

You further have a right to seek a review, not actually an appeal, but a writ, in the Superior Court in the County in which you were arrested and. you have 30 days to do so from the date of the decision of the Department of Motor Vehicles in most cases.

The cost to do that is a flat fee for attorney services, plus the cost of transcribing the tape of the testimony or other actions that took place at the DMV hearing, and copying all the other documents which are usually in the neighborhood of $500.00 to $800.00. Further, there is a filing fee which is the neighborhood of $275.00 since the appeal or writ is considered a civil matter. There are also miscellaneous copy and postage fees.

If you request a review it must be done so in writing and must be done within 15 calendar days and sent to the Sacramento Department of Motor Vehicles. The local Butte County Superior Court, which we feel has ruled incorrectly, requires a request for review in Sacramento to be filed prior to filing any writ in the Butte County Superior Court. A filing fee of $125.00 or more is required

If you file a request for an administrative review in Sacramento within 15 days, that will extend your time in which you have to file later a writ or appeal with the Butte County Superior Court by approximately 90 days from the decision after filing the request for review.

If your action is in a county other than Butte County you can file a writ directly in most cases without the necessity of expending your time and money on a request for review in Sacramento.

Appellate matters and reviews do not include testimony of clients or arresting officers, but are legal argued on briefs, transcripts and transcribed testimonies from the DMV hearings and other matters.

No action will be taken by this office unless we are notified and paid by you in total in advance of the hearing. Writs and Appeals are very expensive.

Obviously, we need at least 5 working days notice to file a request with the Department of Motor Vehicles and at least 15 days to file an action with Butte County Superior Court.

If we do not hear from you we will assume you do not wish to take any further action and this office will not. under any circumstances take any action without a request from you along with the appropriate fees and costs paid in advance.

TYPES OF SUSPENSION

Note: The law on the following information changes frequently and may have already changed!

If the cases are decided against you, there are the following types of suspension as of January, 2006:

1. Class C driver's license and first offense:

If you have a class C driver's license and this is a first offense and there is legal proof of .08 or above, you will be notified that your license is suspended for 4 months. However, by following information on the information sheet we will send you, you may get your license back after a 30 day actual suspension.

2. Class C driver's license and one or more prior:

If you have a class C driver's license and there is legal proof of .08 or above and you have one or more prior convictions for driving under the influence or driving with a conviction of alcohol-related reckless driving, your license will be suspended for one year or revoked for 2 or 3 years depending on your driving record. You cannot get your license back on any type of restricted or hardship basis whatsoever and your only recourse is a request for review, a writ, or an appeal.

3. Minor with class C driver's license:

If you are a minor and there is legal proof that you drove with a .01 or above, your license will be suspended for one year and in some very limited cases you can get it back with a hardship deferment within a certain period of time. If you want more information on this, you should call the Department of Motor Vehicles in Sacramento or make an appointment to see an attorney in this office as the process is much too complicated to explain in this notice.

4. Refusal or failure to take blood or breath test:

If there was an allegation of refusal that was sustained in your case, you will lose your license for one year if you have no prior convictions; you will lose your license for 2 or 3 years if you have any prior convictions. There is no way to get a suspended or part-time or hardship license and your only recourse is an appeal or writ.

5. DMV and DUI Law for Commercial Driver's Licenses:

The law regarding Class A commercial driver's licenses has been changing radically since September, 2005. The law has been amended to more seriously affect Class A drivers even when they are driving a non-commercial vehicle. License losses can vary from one year to life. Contact our office to obtain the most recent information on the law regarding these issues.

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