A California DUI has two aspects: criminal and administrative. There are two separate proceedings that result from one dui arrest. Different government offices file each proceeding and they have different procedures, standards and penalties.

The Administrative Side

The first thing is to deal with is the Administrative License Revocation. It's the civil (administrative) side of a DUI. You must take action within 10 days of your arrest or you will lose your right to contest your license suspension.

First, we will look at what the law says about the Administrative License Revocation.

This is from the California Statutes:

"Because persons who drive while under the influence of alcohol present a hazard to the health and safety of all persons using the highways, a procedure is needed for the swift and certain revocation of the operator's license of any person who has shown himself or herself to be a health and safety hazard (a) by driving with an excessive concentration of alcohol in his or her body or (b) by driving while under the influence of alcohol.

Cal. Rev. Stat. Sec. 60-6,205


The above law means that the State (DMV) will automatically revoke your license when you are arrested for DUI unless you can prove that it should not be taken. Further, the Court may also revoke your license. (They may also fine or jail you, but more on that later.)  Your drivers license is a privilege, not a right… that means different standards apply!

In a DUI arrest, the officer will order you to take a blood or breath sample. If you fail (or refuse to take) a any of these tests, the arresting officer will take your license and give you a pink temporary license (Notice/Sworn Report/Temporary License).

Assuming your license was valid, the temporary license will be valid for 30 days from the date of arrest.


DMV hearings are important to request.  It is impossible to predict whether you will win or not, because DMV hearings have an “Alice in Wonderland” quality to them.  Many of the issues that experienced lawyers use to win DMV hearings have nothing to do with whether you were driving under the influence or not!

After the request is filed, the DMV sets a hearing. The arresting officer will appear to testify about the arrest. A hearing officer will evaluate the evidence and make a recommendation to the Director of the DMV as to whether the revocation should go into effect or be dismissed.

Special warning: If you refused a blood or breath test, you will lose your license for one full year. Under the one year Administrative License Revocation suspension, there is no work permit or other provisional license available.

How is the DMV different from Criminal Court?

There are both administrative and criminal sides to a DUI charge. The criminal penalty may involve fines or jail time, and it is handled by the court system. The Administrative License Revocation is a civil hearing, is not in a courtroom, but in a small office. The people present would be you, your attorney, the DMV hearings officer, and the arresting officer(s). This is a critical hearing, as it will determine whether you will keep or lose your license from the civil side.


Do I need a lawyer for my DUI hearing?

Yes, you can do the hearing alone. If you are simply hoping the officer will not show for your hearing, you can do that just as well as any attorney. The technical issues that often prevail at DMV hearings are not the type of thing a layperson is likely to know.

Can I Change my DMV hearing date?

It is technically possible to continue the hearing date but it is very hard to do.

If I lose my license, can I get a work permit?

 No work permit is available on a one year suspension due to a second or subsequent Administrative License Revocation suspension or a refusal.  Otherwise, you can get one after thirty days.

What is the purpose of the hearing?

The DMV must show, by a preponderance of the evidence, why your license should not be restored to you.

There are two issues to be addressed at the hearing.

If your license has been suspended because you refused to submit to a chemical test, these are the only issues that apply:

1. Did the law enforcement officer have probable cause to believe you were operating a motor vehicle while you were under the influence of drugs or alcohol?

2. Did you refuse to submit or fail to complete a test when directed to do so by a law enforcement officer?

If you registered over .08 breath alcohol content on the breath/blood, only these issues apply:

1. Did the law enforcement officer have probable cause to believe that you were operating or in the actual physical control of a motor vehicle while under the influence of drugs or alcohol?

2. Were you operating or in the actual physical control of a motor vehicle while you had a concentration of alcohol over .08 in your system?

It is my job to go into this hearing, armed and ready to get your license back. As I stated before, many attorneys do not even believe in going to this hearing. I request it every time and win a decent share of them.

What is a Hearing Officer?

The Hearing Officer is not a lawyer.  He or she is a bureaucrat

Do I have to take the hearing date assigned to me or can I ask for a different date?

It is technically possible to continue the hearing date but it is very hard to do.

How is the hearing conducted?

The hearing officer admits the various reports, the defense attorney objects on legal grounds.  After that, the officer testifies and finally you present any evidence.

What happens after the hearing?

The Hearing Officer will recommend a decision to the Director, who makes the final decision. The decision will be mailed to you and me.

If we lose, either:

1. If you have never had a suspension before and you took the breath or blood test, your license will be revoked for 120 days. You are eligible for a work permit after the first 30 days.

2. If you refused the test, or have had a prior suspension, your license will be revoked for one year, and you will be ineligible for a work permit.


The Criminal Side

The second "case" if you will, is that filed by the prosecutor. The police officer sends reports to the prosecutor's office who file the actual criminal charges. The charges filed by prosecutors may be the same or entirely different from those written on the citation. There are several stages to a criminal proceeding, which I have outlined below.

1. The Bond

A bail bond is ordinarily the only means by which a defendant will be released before his/her trial date. Simply put, a bail bond is a sum of money that must be deposited with the court before a defendant will be released. That sum guarantees the defendant's presence at following court dates. If the defendant fails to honor the conditions of his/her bail bond, the money deposited to the court will be forfeited. A defendant may also be released on what is known as a promise to appear citation, where his/her signature guarantees that person's return for hearings. Most juveniles are released to the custody of their parents. In all other offenses, the amount of bail/bonds varies widely.

The purpose of a bail bond is twofold: (1) to insure that a defendant will appear in court, and (2) insure the safety of the community. Thus, if a defendant is from out of state, one could expect a larger bail bond to insure his/her presence in court when their trial date arrives. The more serious the charge is, the more danger the defendant represents to the community; thus the higher the bail bond. If a judge initially denies a defendant bail bond, or if a defendant is unable to meet the initial bail/bond, and the defendant remains in custody, the defendant will be presented before the Court the next time to review the judge's order.

2. Arraignment

This is the date on your ticket, about 30 to 60 days after your arrest. It is likely that if you hire an attorney he or she will appear for you at this court date. The purpose of arraignment is to advise you of your rights and of the possible penalties you face. If you have an attorney, he will have already advised you of the penalties and have developed a strategy for protecting your rights so you don't need to hear it again in a mass court gathering. The Court will set a trial date and advise your attorney.

3. Pre-Trial Motions

There are several pretrial motions that can be filed to assert certain rights. A partial list is as follows:

Motion for Discovery: A motion filed to make the State produce certain documents such as police reports, calibration records for the breath testing machine, video tape, audio tape, or other documents. This motion is standard in most criminal cases, dui or not.



Motion to Suppress: The officer must have a legal reason to pull over your vehicle. In order to stop a person, the law requires that the officer have a particular reason amounting to suspicion of an illegal activity. Many traffic stops are made without a proper reason.

Each of these motions would be set for hearing by the Court prior to your trial date. The outcome of most dui cases are determined at these hearings.

4. Trial:

The trial is the proceeding familiar to most people.. However, good cross-examination skills can make the difference in the outcome of your trial. A trial has several distinct phases as follows:

Opening Statement: The State and then your lawyer are allowed several minutes to address the jury or judge and tell them what he or she expects the evidence to show.

The State's Case: The State then has to put on evidence that you committed a crime. Each witness is called and asked questions by the prosecutor. Then your attorney may cross-examine the witness. The State can ask redirect questions after your attorney is finished. Occasionally the judge may ask questions of the witness, especially if jury trial is waived.
After the State puts on all its evidence, they rest. The judge considers whether they put on enough evidence of each charge. If not, the charge is dismissed.

Defense Evidence: The Defendant now has an opportunity to call witnesses and present evidence. The State has the right to ask your witnesses questions. At the end of your evidence, you rest.

Closing Statements: Each side has the right to summarize what they think the evidence showed and how the evidence and law should be applied.

After each stage of the trial, the jury or court renders its decision. If a guilty verdict is returned, we proceed to sentencing.



5. Sentencing:

The Court imposes a sentence after a conviction at trial. The possible penalties for a California DUI are as follows:

First conviction: Maximum, 6 months imprisonment and $1,000 fine; Mandatory minimum, 48 hours imprisonment and $390 fine.

Second conviction: Maximum, 1 year imprisonment and $1,000 fine; Mandatory minimum, 96 hours imprisonment and $390 fine.

Third conviction: Maximum, 1 year imprisonment and $1,000 fine; Mandatory minimum, 120 days imprisonment and $1,000 fine.

At the conclusion of the case, it is time for sentencing. The judge will ask the State if it has any recommendation. More likely that not, the judge will follow the State's recommendation. This is one of the reasons why it is so important to be proactive about a case by attending in or out-patient clinics, anger management classes, or other programs relevant to a case. The State's recommendation will soften if the prosecutor sees that the defendant has taken steps to correct the problem on his/her own.

The judge has several options in sentencing. One sentence a judge can give is probation. Probation can be supervised, that is, the defendant will report to a probation officer, or it can be unsupervised. The judge can put any conditions on the probation he/she wishes, including compelling the defendant to attend classes, clinics, programs, and pay fees and court costs. At the end of the probationary period, if the defendant has not violated his/her probation, the case is dropped. The defendant will have no criminal record.

A second scenario is a suspended jail sentence. This is like hanging a hammer above your head because you know if you do not comply with probation, the sentence will be imposed. The judge can impose the sentence after notifying the defendant of a hearing and on very little evidence. If the defendant violates his/her probation during the probationary period set by the judge, then the probation officer can recommend violating the defendant's probation. Another court hearing is set in which the judge determines whether the defendant did indeed violate the terms and conditions of their probation. If the judge finds this to be the case, the defendant can be sentenced to anything he could have originally imposed. It cannot be stressed enough how important it is for a defendant to comply with all of the conditions of his/her probation.

Finally, a judge can sentence a defendant to straight time. This is self explanatory; the defendant serves time in jail. The defendant is sent to the county jail to serve out his/her sentence. In light sentences, a judge can require a defendant to serve weekends instead of time during the week.