At the hearing the licensee can present evidence to rebut the 3 main issues at the heart of any excessive BAC action: 1. Was the person lawfully arrested 2. Did the officer have reasonable cause to believe he or she was under the influence while behind the wheel. 3. Did the driver have a blood alcohol level of .08 or higher while the vehicle was moving?
The licensee or lawyer can indeed offer evidence to show the ethanol level was incorrect or that the officer violated the rights of the suspect's fourth amendment rights such as an illegal search or traffic stop/detention. If the respondent does manage to overcome the presumption of a suspension then the DMV must vacate or set aside the suspension pending against him. According to Bruce Blythe, a Bakersfield DUI Lawyer , the chances of prevailing at such a tribunal are less than one in one hundred if there is no attorney. With a legal advocate, the chances increase dramatically. In fact, one recent report released by the state proclaimed that winning an APS hearing in pro per is about as likely as winning the lottery.
As is the case with many of these proceedings, the hearing officer will sustain the action, making positive findings on the three issues discussed previously. When that occurs the driver has multiple options which we will discuss at length. There are essentially 3 options available:
- 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.
- 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 and takes anywhere from 2 to 6 weeks. It is helpful if a detailed points and authorities is also filed, laying out the error that is alleged and proposing a legal remedy.
- 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.
At the end of the day, choosing which rote 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.