As a California DUI lawyer I often get questions from potential clients about the California DMV hearing. The potential client has usually been researching the law about APS or “admin per se” California DMV hearings after an arrest for DUI in California. After the initial research it is time to set the hearing and they need to know what’s best for a California DMV hearing….telephonic or in person? And that’s about the time they pick up the phone and call me. Some callers want to know because they plan on conducting their own California DMV hearing. Other callers are just reading off a checklist they printed from another DUI lawyer’s webpage called , “Questions to ask before hiring a DUI lawyer”.
Let’s start with a little background about the California DMV hearing process after a DUI arrest. When you get stopped for DUI in California the officer will generally confiscate your California Drivers License and hand you a pink sheet of paper. Some people refer to this paper as a temporary license, others refer to it as an APS notice of suspension, and still others like to call it the DS-367. Call it what you like, but something is not right. Your drivers license is gone, and you are left holding a pink piece of paper, this is not a good situation. The pink paper it’s good for 30 days, but is it really? And what’s this business about 10 days?
The important concept is that in California an automatic license suspension in already underway the minute you receive that pink sheet of paper. Don’t think you can wait for your court date months from now to fight your case. If you want to save your drivers license, you need to take action and start fighting right away. If you do nothing, your LICENSE WILL BE SUSPENDED on day 31 and the suspension will last for 120 days. So while the temporary license is good for 30 days, it’s a ticking time bomb. To stop the automatic suspension after a California DUI arrest, you need to demand a California DMV hearing within 10 days of your arrest. If you fail to make the request in 10 days, you lose your right to a hearing and you are an automatic loser. And that brings us back to our original question of which is better… A telephonic hearing? Or an in person California DMV hearing?
Many California DUI lawyers will give you a big speech about why you should always do the hearing in person. The theory is that the telephonic hearing gives the DMV some sort of advantage. These attorneys will tell you that DUI lawyers who do telephonic hearings aren’t doing a good job fighting your case. I’m calling bullshit on this one. It’s just another piece of legal marketing disguised as helpful advice. The truth is that there are advantages to both types of California DMV hearing. To determine which type of hearing is right for your case will require a careful analysis.
The “in person” California DMV hearing provides for a far better opportunity to present visual evidence. If you plan on presenting photos, graphs, diagrams, video, and the like, a telephonic hearing is a terrible idea. The “in person” hearing is also usually better for conducting cross examination. You can read a witness much better in person than over the phone, and non verbal clues can also help the hearing officer determine the credibility of the witness. A telephonic hearing also has advantages. If I have a witness or client that is nervous or otherwise uncomfortable giving testimony, it may be easier to protect my client in a telephonic hearing. Doing a telephonic California DMV hearing also gives me home field advantage. With access to my computer, my library, and unlimited set up time, I can be ready for battle. “In person” hearings are held at the driver safety field offices and they inherently involve a little road game. You are loading your materials into the car and setting up for the hearing on the opposing teams home field. Knowing more about the particular hearing officer conducting your California DMV hearing is also important. An experienced DUI lawyer will know which hearing officers are easier in person, and which ones are easier on the phone.
So which type of California DMV hearing is better? There are many more advantages to each type of hearing beyond what is discussed here, but the general idea is that it could go either way. If you are handling your own case, you will need to consider the evidence in your case, the necessary witnesses in your hearing, and the overall defense strategy to select the best type of hearing for your case. If you are working with a lawyer, make sure that your lawyer doesn’t have a cookie cutter answer to this or any other legal issue that says “it’s always better to do it this way”. A good lawyer will analyze all the details of YOUR case and make strategy decisions based on the circumstances presented.