In many cases the DMV will ignore the facts and the law when it comes to a hearing to challenge the suspension for driving with a BAC at or above a .08 or refusal case. When that occurs the driver has multiple options which we will discuss at length. There are essentially 3 options available:
1. If the case did not involve a refusal and the DMV ruled you were driving above a .08, the licensee can accept the ruling that was rendered and apply for a restricted license thereby allowing the individual to drive to and from work and during the course and scope of employment. This option permits the person to move on with their life and end the stress and anxiety the process has caused them. The driver must jump through some hoops and get an SR22 and enroll in an AB541 program. (Note: This is not available for a refusal case where the minimum mandatory revocation is required up to 5 years depending on the circumstances.). Another option is to get an IID restriction which allows you to drive anywhere at anytime as long as you have an ignition interlock (IID) in your vehicle. This alternative is good for individuals that need to drive for purposes other than work and the DUI school. The IID restriction lasts for 6 months.
2.Appeal the decision internally through the DMV administrative review process. This option requires the driver to pay a fee to the Department of Motor Vehicles and file paperwork contesting the decision. This procedure is handled by a separate division of the DMV in Sacramento and takes anywhere from 2 to 8 weeks. The record of the proceedings is sent up to Sacramento where it is reviewed by a new hearing officer. It is helpful if a detailed points and authorities is also filed, laying out the error that is alleged and proposing a legal remedy. The cost of this appeal can range from $1500 to $2000
3. Appeal the finding in the Superior Court of California. This process is referred to as “filing a writ” and in essence is a lawsuit filed against the government for abuse of discretion. A writ requires paying a filing fee with the Court and almost always requires the assistance of a lawyer due to the complex number of rules. Many lawyers assert that this is sometimes a very risky alternative because if the writ is denied the defendant can be on the hook for the State’s attorneys fees and costs which can be substantial. This option is also very time consuming and can often take several months to get a decision while the suspension stays in effect. The cost of this appeal can range between $4000 to $5000.
At the end of the day, choosing which avenue to take will be easier with the counsel of an experienced lawyer who can guide and advise the person of the pros and cons in any particular case.
Matthew Ruff, Criminal Defense Attorney 