How to Win The DMV Hearing in Your California DUI Case

Five ways to win a California admin per se hearing following a DUI arrest are to demonstrate that:

1. The police did not have probable cause to arrest you;
2. The breath testing machine was not calibrated correctly;
3. You had a medical condition such as GERD that caused high blood alcohol content (BAC) results;
4. There were fatal flaws in the police’s paperwork; and/or
5. The police failed to advise you of the consequences of refusing to take a chemical test.

Even if you lose the DMV hearing, you can often avoid a driver’s license suspension by installing an ignition interlock device (IID) in your car.

In this article, our California DUI attorneys¹ will lay out what to expect during a DMV hearing by answering the following questions:

• 1. What is a DMV hearing?
• 2. How can I win a DMV license suspension hearing?
• 3. What is the relationship between my DMV hearing and my DUI court case?
• 4. What is the burden of proof at a DMV hearing?
• 5. What happens if I win my DMV hearing?
• 6. What happens if I lose my DMV DUI hearing?
  • 6.1. Driver’s license suspension for first-offense DUI
  • 6.2. Driver’s license suspension for second-offense DUI
  • 6.3. Driver’s license suspension for third-offense DUI
  • 6.4. Driver’s license suspension for fourth and subsequent DUIs
  • 6.5. Underage DUIs
  • 6.6. Out-of-state DUIs
  • 6.7. Appealing your DMV DUI hearing decision

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. What is a DMV hearing?

A DMV DUI hearing is an administrative hearing held at a California DMV office (not a criminal court). The sole issue in this hearing is whether or not your driver’s license will be suspended due to your having been arrested for DUI.

1.1. What leads up to a DMV hearing?

If you are arrested in California for drunk driving, the arresting officer will

1. confiscate your driver’s license and
2. provide you with a pink “Notice of Suspension”.

This notice acts as a temporary license for 30 days.

1.1.1. Deadline to request a hearing

The Notice of Suspension gives you notice that you are entitled to a Driver Safety Administrative Per Se “APS” DMV hearing to prevent the suspension of your license – but only if you make a hearing request within ten (10) days of the arrest.

If you do request the DMV hearing for your DUI, the suspension of your driver’s license will be delayed pending the outcome of the hearing. Then if you win the DUI DMV hearing, it may be prevented altogether.

1.1.2. Failure to request a hearing

If you do not request a hearing within this 10-day window, your license will be suspended automatically at the end of the 30 days. At a certain point, you will be eligible to reinstate your license once you

1. enroll in California DUI school,
2. submit an SR-22 insurance form,
3. pay a $125 reinstatement fee, and
4. in some cases, install an ignition interlock device in your car.

1.2. What are DMV hearings like?

DMV hearings, including DMV hearings for California DUIs, are much more relaxed than court trials in three ways:

1. A DMV hearing officer – often without formal legal training – presides over the DUI hearing case instead of a judge.
2. The “burden of proof” – that is, the amount of evidence that is required to prove guilt – is more easily satisfied in a DMV DUI hearing than in a criminal proceeding.
3. The DMV DUI hearing occurs in an office – and sometimes even over the phone – instead of in a courtroom.

1.3. What are my rights at a DMV hearing?

You have the right to be represented at your DUI DMV hearing by an attorney at your own expense. This means that, unlike in a California criminal court proceeding, the DMV will not appoint an attorney for you in the event you are unable to afford your own.

At the DMV DUI hearing, you are also entitled to

• review and challenge evidence (such as the police report),
• subpoena and present witnesses (including the arresting law enforcement officer),
• cross-examine witnesses, and
• testify on your own behalf.

1.4. How do I schedule my DUI DMV hearing?

To schedule your DMV DUI hearing, you must contact your local DMV driver safety branch office, where your hearing will be held. These offices are different from the “traditional” DMV field offices where you go to obtain a license or register your vehicle.

Remember you must contact the office to schedule your DUI DMV hearing within 10 calendar days of your arrest. Your failure to do so forfeits your right to this hearing.

If you hire a private DUI defense attorney to represent you in your court case, they will likely request and schedule your DMV DUI hearing for you provided that you retain their services within that 10-day timeframe. They may also appear on your behalf, in which case you do not need to attend as long as you will not testify.

2. How can I win a DMV license suspension hearing?

Below are ten DUI defenses that can help you win the California DMV hearing. After the hearing, the DMV hearing officer will either

1. decide to suspend your driver’s license based on the alleged DUI (known as “sustaining the action”), or
2. reverse the suspension of your driver’s license for the alleged DUI (known as “setting aside the action”). If the officer sets aside the action, it is equivalent to receiving a not guilty verdict.

2.1. You were not driving

If the officer did not personally observe you driving, and either

1. the DMV does not subpoena any witnesses who did, or
2. there is no other evidence that could reasonably establish that you were driving,

then the hearing officer at your DUI hearing should set aside your driver’s license suspension based on the “no driving” defense to a DUI.

Example: You were out drinking and when you went back to your car, you realized you should not be driving. You decided to “sleep it off”, so you reclined your seat and closed your eyes. A cop approached you to see if you were okay, smelled the alcohol on your breath, and arrested you for DUI. This would be an unlawful arrest, since you did not drive under the influence.

2.2. You were arrested at an illegal DUI / driver’s license checkpoint

Similarly, if you are arrested at a California DUI sobriety checkpoint that does not conform to the strict legal requirements set forth under California DUI law, the arrest is illegal. This means that even if you were technically driving under the influence, the unlawful arrest would override that fact – and you should win your DUI DMV hearing.

2.3. The officer did not have probable cause to detain you for DUI

If the officer did not have any probable cause to detain you for driving under the influence, the hearing officer at your DMV DUI hearing must set aside the suspension of your driver’s license. Your California DUI defense lawyer could argue any number of reasons why the officer lacked probable cause to arrest you. For example, perhaps you were

• obeying all traffic laws and pulled over only because you were the victim of racial profiling (racial profiling is the practice of initiating a stop based on someone’s race, ethnicity or nationality), or
• involved in an accident but did not start drinking until you got home (after which the officers came to interview you).

2.4. The officer did not conduct a proper 15-minute observation period

Title 17 of the California Code of Regulations governs how breath and blood tests must be administered, collected, stored and analyzed. If the officer does not strictly adhere to California’s Title 17 regulations, a California DUI arrest is subject to scrutiny.

One of these regulations is that an officer must observe you for at least 15 minutes immediately prior to conducting a breath test. This is to ensure that you do not

• vomit,
• eat,
• drink,
• smoke,
• regurgitate, or
• do anything else that may compromise the results of the test.

The failure to conduct this observation jeopardizes the results and may mean that your blood alcohol concentration (“BAC”) was not at 0.08% or above at the time of driving – a fact that could result in a “win” at the DMV DUI hearing.

2.5. The breath testing instrument was not calibrated or was not working properly

Title 17 also regulates the maintenance and operation of breath testing instruments. Current law provides that these instruments must undergo an accuracy check every ten days or 150 “blows”. Suppose you provided your samples on instruments that failed to adhere to these standards. In that case,

• your BAC measurement may be inaccurate, and
• the DMV hearing officer at your DUI hearing may need to reverse your driver’s license suspension.

Similarly, if the instrument was malfunctioning, that too could produce false high results on a DUI breath test.

At one point, 125 breath testing instruments in Ventura County were removed from the field because of suspected errors with faulty parts and mouthpieces. The Ventura County District Attorney then had to review hundreds of arrests to see if any of the convictions based on breath test results taken on these instruments should be overturned.

2.6. There were physiological explanations for your false high “BAC” level

There are a variety of reasons why you could have a BAC of 0.08% or greater that are unrelated to the amount of alcohol that you consumed:

• High-protein, low carbohydrate diets can trigger false high BAC results;
• Medical defenses like GERD, acid reflux and heartburn can produce inaccurately high BAC results; and
• Residual “mouth alcohol” may have caused a falsely high reading.

If you suffered from any of these conditions at the time you provided your breath sample, you may not have truly been driving with a BAC of 0.08% or greater, despite the results of your breath test, and you may be able to win your DMV DUI hearing on that basis.

Note that driving with a BAC of 0.08% or greater in violation of Vehicle Code 23152(b) is a separate offense from driving under the influence in violation of Vehicle Code 23152(a). You can be convicted of driving impaired even with a legal BAC.²

2.7. The officer did not properly advise you of the consequences of refusing to submit to a chemical breath or blood test

If you refuse to submit to a DUI chemical blood or breath test, the officer must advise you that your driver’s license will be suspended automatically for one year. This admonition is in writing, and the officer is supposed to read it verbatim (that is, word for word).

If the officer fails to warn you adequately, you could win your DMV refusal hearing. Because many officers make numerous drunk driving arrests, often they simply “go through the motions.” If the officer

• forgets to give this admonition,
• deliberately chooses not to give it,
• recites their own interpretation of the admonition instead of reading it–and confuses you to the point that you do not know what is expected of you, or
• tells you that your refusal could result in a mandatory suspension instead of telling you that your refusal will result in a suspension,

the action against your driver’s license for a DUI could be set aside at your California DMV hearing.

2.8. You did not refuse to submit to a chemical test

Perhaps you did not refuse to submit to a chemical test. Maybe you tried to “blow” but your breath samples were not sufficient. Maybe you were not offered a blood draw as an alternative. Maybe you were simply asking questions about the procedure and the officer misinterpreted your inquiries as hostility and assumed you were refusing.

If you did not refuse, you should win your DMV DUI hearing. If there’s no refusal – and no BAC results – the DMV hearing officer cannot sustain your license suspension on that basis.

2.9. There were fatal flaws with the officer’s paperwork

When an officer makes a DUI arrest, they must fill out certain mandatory reports and paperwork.

If the officer

• forgets to sign the paperwork,
• writes the wrong dates on the documents,
• fails to report the BAC results, or
• records the wrong BAC results and can not independently recall the facts of your arrest to correct these mistakes,

these errors could prove fatal to the case against you and result in a favorable outcome for you at your DMV DUI hearing.

2.10. You were arrested for violating the “under 21 zero tolerance law” and the officer did not lay the proper foundation for your BAC results

Drivers under 21 are forbidden from driving with any measurable amount of alcohol in their bodies. This is California’s “zero tolerance” law (Vehicle Code 23136 VC). Most of the time, officers administer preliminary alcohol screening (“PAS”) tests to these drivers.

PAS devices are not regulated by Title 17. This means that if an officer is going to testify about the BAC level in the DMV DUI hearing for an under 21 DUI case, they would need to lay the proper foundation for why the PAS is a reliable breath testing instrument.

In other words, the officer must supply proof as to why the PAS results should be used as evidence against the driver. The officer may be able to do this, but many times he or she will not know how to do this.

3. What is the relationship between my DMV hearing and my DUI court case?

It bears repeating that, unlike your DUI court proceedings, the DMV DUI hearing is not concerned with whether or not you committed a criminal act. The hearing officer focuses exclusively

1. on the circumstances surrounding your arrest and
2. on whether your driving privileges should be suspended.

That said, the two proceedings are closely related. Testimony obtained during the California DMV hearing could persuade the prosecutor to dismiss your charge or to offer a reduced charge as part of DUI plea bargain negotiations.

If, during a bench or jury trial, you receive a not guilty verdict on Vehicle Code 23152(b) – California’s law against driving with a blood alcohol concentration of 0.08% or greater – that verdict forces the DMV to reissue your driver’s license. However, a court dismissal or pleading guilty or no contest to a reduced charge does not have any bearing on your DMV license suspension/revocation.

3.1. Differences between DMV hearings and criminal trials

A major difference between the DMV DUI hearing and the DUI trial Is that a trial is much more comprehensive. The attorneys have more leeway to explore a wider variety of legal defenses in an effort to fight your DUI charge.

Perhaps the most significant difference between the two Is that the DMV hearing is governed by a DMV hearing officer – an employee of the DMV. A DUI jury trial is governed by a panel of impartial jurors – 12 people who must unanimously agree that you are guilty before you can be convicted of drunk driving.

This is why it is so critical to have a California DUI defense attorney who has experience with California DMV DUI hearings and California DUI trials. Because these proceedings are conducted so differently, it is essential to have a lawyer who understands both systems.

As Ventura DUI defense attorney John Murray³ explains,

“Because I have relationships and experience with so many different DMV hearing officers, I can offer my clients unsurpassed service. I understand the types of evidence and arguments that win with these officers. And this same service extends into the courtroom. As a DUI specialist, my relationships and experience with local prosecutors, judges and practices allow me to secure the best deals for my clients.”

4. What is the burden of proof at a DMV hearing?

The DMV hearing officer must find “by a preponderance of the evidence” that you were operating a motor vehicle with an illegal BAC or while impaired by drugs or alcohol. “A preponderance of the evidence” means that it is more likely than not that you violated California DUI laws.⁵

In criminal cases, prosecutors have the burden to prove DUI beyond a reasonable doubt. This is much higher than “by a preponderance of the evidence” in DMV hearings, which is only a civil proceeding.

Therefore, you can lose a DMV hearing but still win the DUI criminal trial. In DMV hearings, reasonable doubt as to your guilt can exist: It just has to be more likely than not that you committed DUI.

5. What happens if I win my DMV hearing?

If you win your DMV DUI hearing and the hearing officer sets aside the action, you will retain your driving privilege intact. If the DUI hearing reveals significant flaws in the state’s case, it may even convince the prosecutor to reduce or dismiss your DUI charges altogether.

Though because the DMV and DUI court hearing processes are completely separate proceedings, “winning” the DMV hearing does not automatically carry over to the court proceedings. For whatever reason, the prosecutor may still believe they have strong enough evidence to proceed to trial.

Plus if you are ultimately convicted of the offense in court, the judge retains the power to revoke or suspend your license.

6. What happens if I lose my DMV DUI hearing?

Even if you lose your DMV DUI hearing, your DUI attorney nevertheless may have elicited information during the proceeding that could encourage the prosecutor to offer you a reduced plea. Certain plea bargains, or a win at trial, could also cause the DMV to set aside the driver’s license suspension even after it has gone into effect.

As far as your driving privilege is concerned, the suspension/revocation of your driver’s license will go into effect if you lose your DMV DUI hearing. The length and circumstances of the restriction will depend on whether it is your first, second or subsequent offense.

6.1. Driver’s license suspension for first-offense DUI

If this is your first DUI arrest, you can usually continue driving without limitation if you get an IID installed in your car(s) for four months. Otherwise, your driving privilege will be suspended for six to ten months.⁴

After the first month if you do not violate DUI probation, you may be able to have the suspension converted into a restricted license that allows you to drive to and from work, and your California DUI school. Your privilege will only be converted to a restricted one once you

1. enroll in California DUI school,
2. submit an SR-22 insurance form, and
3. pay a $125 reinstatement fee.

6.1.1. DUI with injury and refusals

Meanwhile if the DUI caused injury to another person and you lose at your DMV DUI hearing, the California DMV may suspend your license for one year with no opportunity for a restricted license.⁶ If you refuse to submit to a chemical blood or breath test, the privilege will be suspended for one year with no opportunity for a restricted license.⁷

6.2. Driver’s license suspension for second-offense DUI

If this is your second DUI within a ten-year period and you lose your California DMV DUI hearing, you can usually continue driving without limitation if you get an IID installed in your car(s) for one year. Otherwise, the DMV will suspend your license for two years.

You may be eligible to convert the suspension to a restriction after one year by adhering to the conditions set forth in Section 6.1 above ⁸

If your DUI involved alcohol only (as opposed to drugs or even a combination of alcohol, and drugs) and there were no additional aggravating factors, such as a particularly high BAC or a traffic accident, you may be eligible to obtain a restricted license after 90 days if you

1. adhere to the conditions set forth above,
2. submit proof of enrollment in an 18-month or 30-month California DUI school, and
3. submit proof that you have an ignition interlock device installed.

6.2.1. DUI with injury and refusals

If the DUI caused another person to suffer an injury, the driver’s license suspension is for three years. This, too, may be converted to a restricted license after the first year, provided you comply with the procedures above.⁹

If you refused to submit to a chemical blood or breath test, the California DMV will suspend your driver’s license for two years.¹⁰ This is because your license gets suspended one year for the refusal and an additional year for each prior DUI.

6.3. Driver’s license suspension for third-offense DUI

If this is your third DUI within ten years, you can usually continue driving without limitation if you get an IID installed in your car(s) for one year. Otherwise, the DMV will suspend your license for three years. You may be eligible to convert the suspension to a restriction after one year by adhering to the conditions set forth in Section 6.1 above.¹¹

6.3.1. DUI with injury and refusals

If the DUI caused injury, and it is your third or subsequent DUI offense within the ten years, the suspension of your California driving privileges is for five years. This, too, may be converted to a restricted license after the first year, provided you comply with the procedures above.¹²

If you refused to submit to a chemical breath or blood test, and it is your third or subsequent DUI offense within the ten years, the DMV will suspend your license for a period of three years.¹³

6.4. Driver’s license suspension for fourth and subsequent DUI cases

If this is your fourth or subsequent DUI within ten years – which elevates it to a felony DUI – you may be able to continue driving without limitation with an IID installed in your car for a predetermined amount of time.

Otherwise, the DMV will suspend your license for four years if you lose your DMV DUI hearing. You may be eligible to convert the license suspension to a restriction after one year by adhering to the conditions set forth in Section 6.1 above.¹⁴

(Note that these penalties will vary quite a bit for drivers who hold commercial driver’s licenses. For information about these restrictions, please see our article on California DUI Law and Commercial Licenses.)

6.5. Underage DUI Cases

If you are under 21 and drive with even 0.01% BAC, you violate California’s zero tolerance law. This type of underage DUI offense is civil in nature. The hearing officer in your underage DUI DMV hearing can sustain the action upon a finding that you drove with any measurable amount of alcohol in your system.¹⁵

If you lose your California DMV hearing for an under-21 DUI, your license will be suspended for a period of one year. If you do not yet have a driver’s license, your privilege to obtain a driver’s license will be postponed for one year.¹⁶

If you refused to submit to a chemical blood or breath test as an underage driver, your license may be suspended for a period of one to three years, depending on how many prior violations you have for this or for any other DUI-related offense.¹⁷

6.6. Out-of-state drivers

If you were arrested for DUI in California, but do not live in this state, you would schedule your California DMV DUI hearing in the same manner discussed above in Section 1.4. You can have a California DUI attorney appear in person or by telephone on your behalf.

In the event that you are an out-of-state driver arrested for DUI in California, and you lose your California DMV hearing, your privilege to drive in this state will be suspended just as if you were a resident. This will also most likely affect your driver’s license in your home state as well because all but five states (Georgia, Massachusetts, Michigan, Tennessee, and Wisconsin) belong to the Interstate Drivers License Compact (DLC).

The DLC revolves around the concept that every driver in the country has a single driver’s license and a single driving record. States belonging to the Drivers License Compact report driving arrests (including DUIs) to each other. As a result, your home state will likely take action of its own against your driver’s license if you suffer a California DUI arrest and have your license suspended after a California DMV hearing.

6.7. Appealing your DMV DUI hearing decision

If you should have prevailed at your DMV DUI hearing – and the hearing officer simply “got it wrong” – you have the right to appeal the decision. You can ask the DMV itself to conduct a departmental review or file an appeal directly with the California Superior Court.

Instructions and the time frame for appealing the DMV’s ruling will be found on the written form notifying you of the department’s decision following your DMV DUI hearing. There is a $120 fee for the DMV review.

If you appeal directly to the court, you do so through a writ of mandate, which is a request for the court to review and reverse the final decision of the DMV. Filing a writ on this issue generally costs between $2,500 and $3,500. If you are not satisfied with that decision, you can appeal to the California Court of Appeals.

Additional Online Resources:

California DMV: DUI Arrest DMV Administrative Hearings vs. Criminal Court Trials

California DMV: Information about Driver Safety Administrative Hearings.

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