DMV Hearings for Refusing a DUI Breath or Blood Test

A DMV refusal hearing is an administrative hearing conducted by the Department of Motor Vehicles after you get arrested for DUI and refuse to submit to a chemical test. The purpose of the hearing is for you to try to prevent the DMV from suspending your driver’s license. If you do not request a hearing within 10 days from the date of the arrest, the DMV will typically suspend your license for at least one year.

A few ways you can win a hearing, and thereby keep your driving privileges, are by showing that:

• you were not driving or in control of a vehicle,
• the arresting police officer did not have probable cause to stop you for DUI, and
• law enforcement did not properly advise you of the consequences of refusing to submit to a chemical breath test or blood test.

Note that California’s implied consent law, codified in California Vehicle Code 23612, requires you to take a breath or blood test to determine your blood alcohol concentration (BAC).

This law only applies to breath or blood tests after a lawful DUI arrest. This means that you can still refuse to take a preliminary alcohol screening (PAS) breath test before an arrest takes place.

1. What is a DMV refusal hearing?

After you are arrested for DUI, you cannot refuse the chemical testing of your blood or breath without consequences, under California’s “implied consent” law. One of these consequences is the suspension of your driving privileges by the California DMV.¹

A DMV refusal hearing is an administrative per se hearing, conducted by the DMV, where you can challenge your license suspension for refusing the chemical test.² The hearing is sometimes referred to as an “APS hearing,” or an “admin per se hearing.”

It bears repeating that, in order to try and avoid license suspension, you must personally request a DMV hearing within 10 days from the date of your arrest. If you fail to do so, you lose your right to a hearing and the DMV will automatically suspend your driving privileges.³

If you request a hearing, the suspension of your driver’s license is delayed pending the outcome of the hearing. Further, if you win your hearing, you may be able to retain your driving privileges.

Note that a chemical test refusal hearing is held in a DMV driver safety office (and not a criminal court) before a DMV hearing officer. The hearing officer is not a judge and often has no formal legal training.

You have certain legal rights that the DMV must honor. These include your right to:

• representation by a criminal defense attorney or DUI attorney,
• review evidence presented by the DMV,
• present evidence before the DMV,
• subpoena and present witnesses,
• testify on your own behalf, and
• appeal an adverse decision.⁴

2. How do I win a DMV refusal hearing?

You can prevail at a DMV hearing by presenting favorable evidence to the DMV hearing officer. This includes evidence that shows:

• you were stopped for DUI without probable cause,
• you were not driving or in control of a vehicle,
• you were arrested at an illegal DUI checkpoint,
• the arresting officer did not properly advise you of the consequences of refusing to submit to a chemical breath or blood test,
• you did not actually refuse to submit to a chemical test, and
• there were fatal flaws with the arresting officer’s paperwork.

3. What happens if I win/lose my hearing?

If you win your refusal hearing, the hearing officer sets aside the action, and you retain your driving privileges.

If you lose your DMV hearing, the DMV will suspend your driver’s license.⁵

For a first offense of driving under the influence of alcohol, the DMV will suspend your license for one year.⁶ After the first month of suspension, you may be able to have the suspension converted into a restricted license that allows you to drive to and from:

• work, and/or
• a California DUI school.

If you lose a hearing and have a prior DUI, the DMV can suspend your license for two years.⁷

Note that if you lose a hearing, you have the right to appeal the decision. Specifically, you can:

• ask the DMV to conduct a departmental review of the decision, or
• file an appeal directly with the California Superior Court.⁸

4. Is a DMV refusal hearing the same thing as a DUI court case?

No. If you are arrested for DUI in California, you will face two separate legal proceedings. These are:

1. a criminal charge for DUI in California courts, and
2. an admin per se hearing at the DMV to determine what will happen to your driver’s license.

What is at stake in the California DUI court process are criminal penalties, such as:

• fines,
• potential jail time,
• completion of a California DUI school, and
• a variety of additional DUI probation conditions.

By contrast, the DMV license suspension hearing deals only with your driving privileges. The DMV cannot send you to jail or fine you, but they can suspend or revoke your driver’s license.

Note that if you refuse a chemical test following a DUI arrest, you could face enhanced criminal penalties if you are ultimately convicted of DUI:

• for a first DUI offense, an additional 48 hours in county jail, and a minimum nine-month California DUI school (instead of the three-month program for first-time DUIs that do not involve refusals),
• for a second DUI offense within ten years, an additional 96 hours in county jail,
• for a third DUI offense within ten years, an additional 10 days in county jail, and
• for a fourth or subsequent DUI offense within ten years, an additional 18 days in county jail.

Additional reading

For more in-depth information, refer to these scholarly articles:

• The Privacy Implications of DUI Refusals and Forced Blood Alcohol Tests: What Judges Can Do – Criminal Justice.
• Keeping DUI Implied Consent Laws Implied – Willamette Law Review.
• Admissibility of Refusal to Submit to Blood Alcohol Test – Nova Law Journal.
• Refusal to Submit to a Chemical Test: Whether Refusing Really Counts as a Refusal – JFK University Law Review.
• The Admissibility of Refusals in Drunk Driving Prosecutions: A Violation of the Fifth Amendment – Pacific Law Journal.

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