The Right to a Fair Hearing Following an Arrest for Driving Under the Influence

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Following an arrest for allegedly driving under the influence of alcohol, a licensee has the right to request an administrative per se hearing with the Department of Motor Vehicles. The request for a hearing must be made within 10-days following the arrest. If the request is not timely made, the individual’s driving privilege will be suspended. The length of suspension will depend on the number of prior suspensions for driving under the influence, whether the individual was on probation for driving under the influence, and the individual’s age at the time of the arrest.

Prior to the hearing a licensee has the right to issue subpoenas to secure the presence of witnesses and subpoena duces tecums to obtain relevant documentation. Government Code section 11507.6 recognizes that the licensee has the right to copy and inspect reports, the results of a blood examination, and any other document and/or thing that the opposing party intends to introduce in evidence at the hearing. The provisions of the Government Code are intended to ensure that an individual at an administrative per se hearing has an opportunity to prepare a defense.

The issue often arises as to what happens when the Department of Motor Vehicles fails to provide discovery prior to the hearing and waits to provide the police reports, and other evidence to the licensee hours before the hearing is set to commence. Unfortunately, this is an all too common practice at administrative hearings conducted before the Department of Motor Vehicles.

Recently, the court in Petrus v. Deparment of Motor Vehicles (2011) 194 Ca.App.4th 1240, determined that the Department of Motor Vehicles violates an individual’s due process rights when the driver is not provided with a full and fair opportunity to provide a meaningful defense. In Petrus, the Department of Motor Vehicles provided the licensee with the results of the blood test the morning of the hearing. Counsel for the licensee objected to the introduction of the results of the blood tests based on a discovery rule violation. The Department of Motor Vehicles overruled the objection. After the objection was overruled, counsel for the licensee requested a continuance of the hearing. The Department of Motor Vehicles denied the request. The Department of Motor Vehicles ultimately suspended the individual’s driving privilege.

The Petrus court determined that the driver’s due process rights were violated because he was deprived of the opportunity to present a meaningful defense to the Department’s proceeding to suspend his driving privilege. The court recognized that a licensee has a right to present evidence to rebut the results of the blood test, and by failing to produce the results until the morning of the hearing, the Department of Motor Vehicles violated the driver’s right to a fair hearing.

The Petrus holding confirms that a licensee is entitled to a fair hearing and that the opportunity to prepare a defense is an important right. In order to defend against the pending license suspension by the Department of Motor Vehicles an individual should utilize all available discovery mechanisms prior to the hearing and object to any attempt by the Department of Motor Vehicles to commence a hearing shortly after providing the licensee with discovery.

If you or a loved one have been arrested on suspicion of driving under the influence and value your driving privilege, please contact an experienced driving under the influence attorney today. If you have been arrested in Madera County, contact an experienced Madera County Driving Under the Influence Attorney (www.maderaduidefense.com).  In Tulare County, contact an experienced Tulare County Driving Under the Influence Attorney (www.tulareduiattorney.com.)

If you have any questions regarding the services provided at the Law Office of Gregory W. Fox,
or would like to schedule your free initial consultation, please contact us today at (559) 222-5800. Hablamos español.