At the DMV hearing, the hearing officer will listen to evidence of guilt presented by the arresting officer. They will then hear any evidence that you choose to present.
You can testify and cross-examine other witnesses and the arresting officer. All of this happens in a DMV office, or even over the phone.
What happens at the DMV DUI hearing?
The DMV hearing is where an officer for the agency will hear evidence of an alleged case of driving under the influence (DUI) and decide whether to suspend your driver’s license. The hearing is independent from the criminal case. You have a right to an attorney at the hearing, but only at your expense.
The hearing is not held in a courtroom. Instead, it happens
- at a local office for the state’s Department of Motor Vehicles (DMV) or
- over the phone.
The person conducting the hearing is not a judge. Instead, they are an employee of the DMV. In most cases, the hearing officer will have special training by the DMV to conduct the hearing, but will not have a law degree.
At the hearing, the arresting officer will testify about what happened. They will often file the police report as evidence. This testimony will generally include information about:
- why the traffic stop was initiated, in the first place,
- how you looked, or how you interacted with the officer,
- how you performed on field sobriety tests (FSTs),
- whether you refused a chemical breath test or breathalyzer, and
- if you took a breathalyzer or gave a blood or urine test, the resulting blood alcohol content (BAC) reading.
You, usually through your criminal defense attorney, have the right to cross-examine the arresting officer.
Once law enforcement has presented its case, you can present your side of the story. In addition to the right to cross-examine the police officer, you can also:
- challenge other evidence, like the police report,
- subpoena and present other witnesses, and
- testify on your own behalf.1
Depending on the circumstances of the case, you may have a valid defense. Some of the most common include:
- you were not driving the vehicle,
- the officer did not have sufficient probable cause to initiate the traffic stop,
- the officer did not conduct the required 15-minute observation period, and
- the officer failed to advise you of the repercussions of refusing a breathalyzer.
After hearing the evidence, the DMV hearing officer will decide whether a preponderance of the evidence shows that you were under the influence. This burden of proof differs from the criminal DUI case, and is very important.
In criminal cases, the prosecutor has to prove their case beyond a reasonable doubt. In DMV hearings, they only have to prove it by a preponderance of the evidence. This is satisfied if the evidence shows that it was more likely than not that you were under the influence.2
This lower burden of proof means it is easier for law enforcement to win. Getting the legal advice of a skilled DUI defense lawyer from a local law office is essential for beating DUI charges at this stage in the process.
What happens if I win the DMV hearing?
If you win your DMV hearing, you will recover your driving privileges. You can also use the victory as leverage in your criminal DUI case.
If law enforcement fails to meet its burden of proof, the DMV hearing officer will set aside the action. This means the pending license suspension will be tossed out. You will keep your driving privileges.3
The DMV hearing is separate from the criminal DUI case. However, if you win the DMV hearing, it is often a very strong sign that the prosecutor’s criminal case is
- flawed or
- weak.
It did not even overcome the lower “preponderance of the evidence” burden of proof.
However, the repercussions for the criminal case are neither
- automatic nor
- guaranteed.
Many prosecutors will react to the loss at the DMV hearing by offering a plea deal or dropping the case, entirely. Though some others will press forward. If they do – and the criminal case goes to trial, and you end up being convicted – the judge may suspend or revoke your driver’s license, anyway.4
Can my driver’s license be suspended if I lose?
Yes, if you lose the DMV hearing, then your driver’s license will be suspended. However, the DMV is limited to this punishment: The DMV cannot
- impose fines or
- send you to jail.
The length of the license suspension will depend on the circumstances of the case. It will also depend on whether you have any DUI or DWI convictions, in your past. Generally, for first-time offenders, the suspension may be up to one year.5
If you lose the DMV hearing, you do have a right to appeal the outcome, though. Depending on the state, an appeal can
- take the case to court or
- trigger an internal administrative review.
Additionally, the criminal DUI case will still be pending. This is where a judge can sentence you to other penalties, like:
- jail,
- fines,
- alcohol rehab,
- counseling, and
- community service.
However, losing a DMV hearing is not all bad. In many cases, the evidence that comes out during the DMV hearing makes it clear that the prosecutor’s case is not airtight.6
For example, the police officer’s testimony may reveal that their reason for the traffic stop may not amount to probable cause. While this may have been enough to overcome the lower burden of proof in the DMV hearing, the prosecutor may see that it will likely fail in criminal court. They may offer a better plea deal, as a result.
How does it work in California?
In California, the DMV hearing is conducted in much the same way as in other states. The license suspension hearing is formally called a
- Driver Safety Administrative Per Se hearing or
- APS hearing.
These administrative hearings are held at a local California DMV safety branch office.
If you are arrested for drunk driving in California, you will have your driver’s license confiscated. You will be given a pink Notice of Suspension. This Notice serves as your temporary license for 30 days.
The Notice also informs you that you are entitled to the DMV hearing. However, you have to request this hearing within 10 days of the arrest. If no request is made,
- the Notice of Suspension will expire after 30 days, and
- your driver’s license will automatically be suspended.
In California, the license suspension depends on your prior record and the incident: 7
| Prior DUIs in the last 10 years and circumstances of the DUI arrest | License suspension or revocation |
| First-time offenders | 6 – 10 months |
| First-time offenders, if the DUI caused an injury | 1 year |
| First-time offenders who refuse a chemical test | 1 year |
| Second offense | 2 years |
| Second offense, causing injury | 3 years |
| Second offense with chemical test refusal | 2 years |
| Third offense | 3 years |
| Third offense, causing injury | 5 years |
| Third offense with chemical test refusal | 3 years |
| Fourth or subsequent offense | 4 years |
However, you may be able to shorten the suspension by installing an ignition interlock device (IID). You may also be eligible for a restricted license.8
You should strongly consider hiring a DUI attorney from a reputable law firm and getting their legal help before your DMV hearing.
Legal References:
- For example New Hampshire RSA 265-A:30.
- See, for example, State v. Higa (1995) 79 Haw. 1.
- See, for example, Colorado Dep’t of Revenue, Motor Vehicle Div. v. Kirk
- See, for example, California DUI Lawyers Assn. v. Department of Motor Vehicles (Court of Appeal of California, Second Appellate District, Division Four, 2022) 77 Cal. App. 5th 517.
- Idaho Code Ann. § 18-8002A.
- See, for example, NRS 484C.400.
- California Vehicle Code sections 13352 and 13353 VC.
- California Vehicle Code 23575 VC.
