All California drivers are aware that it is unlawful to operate a motor vehicle with a blood/alcohol concentration (BAC) of 0.08% or greater. There are two instances, however, where driving with ANY alcohol in your bloodstream is unlawful. California’s “Zero-Tolerance” laws were enacted to hold two groups of people to a higher-standard than other drivers:
If a driver in one of these categories is contacted by a Law Enforcement Officer and is found to be operating a motor vehicle with a BAC of 0.01% or greater, the officer will seize that person’s driver license on behalf of the DMV and will initiate a process intended to completely suspend or revoke that person’s driving privilege for minimum of one-year.
When their driver license is seized by a Law Enforcement Officer, the affected driver is to be given a written notice that the suspension/revocation process has begun. The notice will also advise the driver that if they wish to fight the suspension/revocation action, they must contact the DMV within 10 days to schedule an administrative hearing. Failure to contact the DMV within that period of time is a waiver of the right to a hearing and the suspension/revocation is then guaranteed to go into effect.
The procedure by which a driver is permitted to contest a “zero-tolerance” suspension/revocation is through an administrative hearing known as a Zero-Tolerance Hearing. A Zero-Tolerance Hearing is a complicated legal proceeding where issues of probable cause, lawful detention and the admissibility/accuracy of evidence are argued. This type of hearing is conducted in strict accordance with the California Code of Civil Procedures and the Administrative Procedures Act. A driver preparing for such a hearing must be versed in the California Vehicle Code, the California Evidence Code and specific sections of the Health & Safety Code. To be successful in such a hearing would also require a driver to be knowledgeable in DMV procedure.
If the California DMV is working to suspend or revoke your driver license for an issue of “Zero-Tolerance,” there is no question that you face a difficult task in protecting your driving privilege. First of all, the standard of proof is very low, and secondly the DMV will presume the accuracy of all of its evidence. The first logical question for a driver to ask is, “do I need to protect my driving privilege?” If the answer is no, then you can simply allow the suspension/revocation period to run and then apply for the reinstatement of your driver license. On the other hand, if you simply MUST NOT lose your driver license, then you must act quickly to protect your rights.
If you choose to contest the intended “Zero-Tolerance” suspension of your driving privilege, you must contact the Driver Safety Office closest to your home and schedule a Zero-Tolerance Hearing. Remember this initial contact must be made within 10 calendar days of the police detention. It is also critically important to request a Stay of Suspension. This is imperative because it is very likely the DMV will not be able to grant a hearing and render a decision prior to the effective date of the suspension/revocation.
California law makes it very clear that an accused driver is permitted to represent themselves at a Zero-Tolerance Hearing. There is no requirement, whatsoever, that a driver have representation at such a hearing. That being said, the Zero-Tolerance Hearings conducted by the Department of Motor Vehicles are among the most complex and challenging of all administrative hearings. This type of hearing is run like a mini-trial and the driver is expected to understand and play by the rules. The DMV Hearing Officer will expect the driver to conform to the practices outlined in the California Code of Civil Procedures and the Administrative Procedures Act. Hearing Officers tend to be intolerant of drivers who don’t understand the rules and that can make victory much more difficult.
At a Zero-Tolerance Hearing, there are three primary issues that must be decided:
California law does permit a driver to be represented by a DMV Defense Expert if they so choose. Known as “Administrative Advocates” these DMV Defense Experts have specific training and experience handling all forms of DMV Hearings, including the Zero-Tolerance Hearing. While the law does not require that any driver be represented at a Zero-Tolerance Hearing, having the assistance of an Administrative Advocate greatly increases a driver’s likelihood of victory.
As stated above, the Zero-Tolerance Hearing is among the most challenging of the administrative hearings conducted by the California DMV. Because the legal limit for alcohol in the blood stream is so low, and because the DMV is permitted to presume the accuracy of their evidence, even before the hearing convenes; an accused driver is fighting a difficult battle. In fact they are presumed guilty and are then challenged to prove their innocence.
Despite this Draconian approach to justice, drivers should understand that a Zero-Tolerance Hearing can be won. Winning requires a great deal of preparation and patience, but don’t be dissuaded…. All drivers should fight to protect their driving privilege.
If you elect to defend yourself at a Zero-Tolerance Hearing, remember you must act within the first ten days to request your hearing. If you would like representation by a DMV Defense Expert, DMV Administrative Advocates can assist you in preparing your defense and provides a greater likelihood of victory. You can learn more and study a complete overview of the Zero Tolerance hearing procedure here.