If your San Diego DUI Attorney or DUI Defense Lawyer successfully gets Not Guilty or DUI Acquittals on the charge of driving with .08% or more (California Vehicle Code section 23152b), the DMV must give you your driving privileges back.   If your San Diego DUI Attorney gets the criminal charges dismissed, DMV offers a renewed right to a hearing.

“12.190 ACQUITTALS

Acquittals are reported to the department on documents prepared by the court. Certified court documents reflecting an acquittal or a finding of factual innocence of criminal charges pursuant to §23152 (b) VC or §23154 VC may result in a set aside of the APS action. These documents may be submitted by drivers or San Diego DUI Attorneys, during a contact, over the counter or directly to headquarters for processing.

If acquittal documents are presented, ensure they are certified court documents with a court seal. Forward the documents to Litigation Services, who will review the document(s) and inform the party of the results by mail. If the acquittal documents are unacceptable, inform the person that only certified court documents with a court seal are acceptable.

Examples of unacceptable documents are:
• Xerox copies of certified document(s)
• Non-certified documents
• Faxed copies of certified documents
• Documents reporting an action other than acquittal or finding of factual innocence pursuant to §23152(b) VC.

12.195 SB 126 Dismissal Hearings

Under the following circumstances, drivers arrested for violation of Section §23152, or §23l53 VC, who have been suspended under the APS law and completed a chemical test, have a renewed right to a 0.08% BAC hearing:

• If criminal DUI charges resulting from the same arrest are not filed by a district attorney because of a lack of evidence.

OR

• Charges are filed, but later dismissed in court because of insufficient evidence. Section § 13353.2(t) VC permits a driver a: renewed right to a hearing within one year of the arrest date, even if the driver has already had an APS hearing. The law does not apply to a person who has refused to submit to or failed to complete a chemical test.

12.196 Driver Requirement

The driver initiates the process for a hearing by contacting a Driver Safety Office for the “Administrative Per Se Notice of Failure to File Criminal Charges” form (See Appendix
A, DS 702), or by presenting the appropriate court documents. The driver must submit the form to the agency that failed to file charges, such as the district attorney or city attorney.

As required by the law, the district attorney or city attorney must provide a detailed explanation of why charges were not filed and what evidence was defective and/or lacking. The driver then returns the form to the department.

Department Requirement

When the department receives a completed DS 702 form, or other documents from the district attorney, it is reviewed to determine if it contains sufficient information to grant a hearing per §13353.2(f) Vc. If it is insufficient or incomplete, it is returned to the driver, to re-contact the prosecuting attorney for additional or clarifying information. A review of all information shall determine if a renewed right to a hearing is granted.

Hearing Requirements

In addition to the BAC issues, the hearing officer will consider the reason(s) for the dismissal or failure of the district attorney to prosecute, or if applicable, the reason(s) stated on the certified court record by a judge who dismissed the charge. Based upon this information, one or more of the original APS statutory issues(s) may need to be explored (i.e., 0.08% or more while driving a vehicle, lawful arrest, etc.) as well as any relevant sub-issue.

The law does not provide for a stay of the APS action pending the hearing officer’s decision.”

[DMV Driver Safety Manual, APS Hearings, Chapter 7 page 12-81 through 12-82]