In California, driving is regarded as a privilege, and once you obtain that driving privilege, most people feel like they can’t live without it.  However, the Department of Motor Vehicles (DMV), a government agency, has the power to revoke or suspend the driving privilege of any motorist if the driver is found to have violated specified statutes in the Vehicle or Penal Code.  If the DMV seeks to remove your driving privilege, you have to follow the required legal procedure to fight the action. The California law allows drivers to represent themselves at all administrative hearings. However, since the DMV process is exceedingly hard to understand, complicated and often frustrating, the law allows drivers to hire an attorney. It is highly recommended that any driver facing a DMV notice of suspension or revocation consult with a lawyer familiar with the Department of Motor Vehicles administrative hearings.

If arrested for a DUI for driving with a BAC of .08 or more if 21 years or older, .01 or more if under age 21, .04 or more if a commercial driver, or if you refused a chemical test, the DMV will proceed automatically with an “APS” suspension (administrative per se suspension) or refusal revocation if the driver fails to request a hearing.  After a DUI arrest, you or your attorney must request a DMV hearing within ten calendar days.  Failure to secure a DMV hearing leads to an automatic suspension of your driver's license.  Depending upon the action the DMV is taking against your privilege to drive, a variety of defenses may apply to each type of action. If you are in Los Angeles or Pasadena, CA, The Law Office of Ann Gottesman can guide you and represent you during the DMV hearing.  Ann is an experienced attorney with knowledge of DMV procedures.

DUI Court And DMV Hearings In California

Unlike DUI court where the prosecutor has all the burden to prove a driver’s guilt, a DMV hearing does not focus on whether it can be proven beyond a reasonable doubt that you have committed a DUI or not.  For example, in a DUI where an adult driver is alleged to have driven with an alcohol content of .08 or higher, the DMV hearing officer is exclusively concerned with the issues of whether the detention and arrest was lawful and whether the chemical test revealed a BAC of .08 or more within 3 hours of the driving time.  Under Penal Code 664 the DMV has the advantage of being able to presume all these facts are sufficiently proven as long as the sworn report is properly filled out and signed and the information written in the DS367 shows a .08 BAC within 3 hours of the driving time.  However, the driver has the opportunity to rebut this presumption.  Compared to the criminal case in court, the rules and procedure at the administrative hearing is quite different, as is the burden of proof.  Sometimes testimony or evidence obtained during the DMV process can be helpful to the criminal case.  For example, the evidence obtained in the DMV hearing, such as sworn testimony from a subpoenaed officer, could convince the prosecutor to offer you reduced charges or may even convince him or her to dismiss your charges in certain cases.

During a jury or bench trial, if the court issues a not guilty verdict on California's statute against driving with a BAC of 0.08% or greater (VC 23152 (b)), this verdict will have the power to overturn a DMV issued suspension if that suspension was based on a finding that the Defendant was driving with a .08 BAC or more. However, if you plead guilty or no contest to a reduced charge, or if the court dismisses your charges but there is no actual acquittal, then such a dismissal will have no bearing on your DMV license revocation or suspension.  Unfortunately in refusal cases, even an acquittal will not be able to overturn a refusal revocation by the DMV.

The significant distinction between a DUI trial and a DMV hearing is that a trial addresses the issue of whether an accused is guilty or not-guilty in criminal court.  To be found guilty in criminal court the accused must ither plead guilty or no-contest or be found guilty by a jury or judge.  At a DMV hearing, a non-attorney who is hired by the DMV decides whether your driver’s license should be administratively suspended.  This is separate from a potential court conviction triggered suspension. At a jury trial the accused will sit before a panel of 12 impartial jurors who must unanimously agree that you are guilty before you can be convicted of drunk driving charges.  At the DMV administrative hearing a DMV officer will presume you drove in violation of the DUI statutes if there is a prima facia case and the driver must rebut that presumption in order to win the hearing. Therefore, when hiring an attorney to represent you in a DUI case it is important you retain a lawyer who is experienced with BOTH the DMV administrative process and criminal side of the case.  

The DMV Hearing Process

The DMV officer is responsible for holding a DMV hearing in California. The main issue in the proceedings is whether to suspend your driver's license after your DUI arrest. The arresting officer will confiscate your driver's license after the arrest and issue you a pink '' notice of suspension''. The ''Notice of suspension'' will serve as your temporary license for 30 days. The notice will also inform you that you have a right to a DMV hearing to challenge the suspension.  By requesting the hearing you are entitled to a “stay” on the suspension.  This means you will be able to drive pending the outcome of the DMV hearing and/or the court case.  If you fail to request an APS hearing within the ten-day window, your driver's license will automatically be suspended after 30 days and you will have waived your right to contest the administrative suspension.

If you end up facing a driver’s license suspension or revocation, you may qualify for a restricted license once you meet the following:

  • Pay a $125 reinstatement fee
  • In some cases, install an ignition interlock device in your car
  • Submit an SR-22 insurance form
  • Enroll in California DUI school

If you present your DMV hearing request, your driver’s license suspension will delay while awaiting the hearing results. If you win your DMV hearing, your driver’s license suspension will be reversed.

Your Rights During A DMV Hearing

Unlike court trials, a DMV hearing for California DUIs is more relaxed. For instance, a DMV hearing officer without knowledge of legal matters often presides over the DUI hearing instead of a judge. Another reason a DMV hearing is relaxed is because the evidence needed to prove you violated one of the specified DUI laws is more easily satisfied in a DMV hearing than in a criminal case. The DMV hearing also takes place over the phone or in an office instead of a courtroom. However, despite the informality, you are still entitled to some fundamental rights during a DMV DUI hearing. First, you have the right to hire an attorney to represent you at your DMV hearing at your own cost. Unlike in a criminal court trial in California, DMV cannot hire an attorney for you if youcannot afford one. Your rights at the DMV hearing include:

  • Testifying on your behalf
  • Cross-examining witnesses
  • Review and challenge the evidence like the police report, chemical test results, etc…
  • Subpoena and present witnesses, including the arresting police officer

Scheduling Your DUI DMV Hearing

It is best to hire a DUI lawyer within the initial ten calendar days of your arrest. Your attorney will contact DMV and request the evidence, a stay on the suspension and a hearing date.  If a driver cannot hire a lawyer within 10 days of the arrest he or she should call the Driver Safety Office and request a hearing so not to miss the deadline.  If you fail to call the office or have your attorney do so within the time limit, you automatically lose your right to the hearing.

If you hire a DUI defense attorney to represent you, he or she will arrange a DUI DMV hearing on your behalf.  In addition, the attorney could represent you without needing your personal appearance in court or at the DMV.  This will depend upon the facts of your case and whether you will need to testify. 

How To Win Your DMV License Suspension Hearing In California

In California, the scope of the DUI DMV hearing is broad. Proper preparations and substantial legal research can enhance your possibility of winning the DMV hearing. Some of the issues the hearing officer could consider are:

  • If you were driving with a blood alcohol concentration (BAC) of 0.08% or more (or .01 if under 21, or .04 or more if driving a commercial vehicle with a Class A license)
  • If the arresting police had a probable cause to believe you were driving under the influence
  • If the arresting police had reasonable cause to believe your committed a traffic violation

If you refuse to undergo a blood DUI or chemical breath test, then the issue of your BAC becomes the central point at your DMV DUI hearing. The crucial questions will be as follows:

  • Did the officer have probable cause to believe you were driving under the influence?
  • Did the officer request you provide a breath or blood test after you were arrested?
  • Did you refuse or fail to undergo a blood or chemical breath test when the police requested you to give a sample?
  • Did the police inform you that refusing to provide a chemical test would result in your license being suspended for one year or revoked for two or three years?

After determining the above issues, the DMV hearing officer in charge of your DMV hearing has the option of doing the following:

  • Suspend your driving privilege, also known as ''sustaining the action.''
  • Not suspend your driving privilege, also known as ''setting aside the action''.

Some of the defenses your attorney could present at the DMV hearing to fight your potential suspension include:

You Violated The ''Under 21 Zero Tolerance Law,'' And The Police Did Not Lay The Proper Foundation For Your BAC Results

In California, motorists under 21 years are not allowed to drive with a measurable level of alcohol in their breath or blood. It is referred to as the ''zero tolerance'' law in California: VC 23136. Often, such motorists undergo a preliminary alcohol screening test, referred to as a ''PAS'' test. In adult cases over age 2DMV cannot rely on the PAS to prove the driver was a .08 or higher but for drivers under 21 they can.  In over 21 cases the DMV would have to lay proper foundation to get the PAS results into evidence, which would require the testimony of the officer who calibrated the machine and a toxicologist.

There Were Fatal Flaws With The Officer’s Paperwork

When the police arrest you for a DUI crime, they must ensure that they fill out specific paperwork and reports. If the police fail to sign the paperwork, they fail to report the BAC results or write the wrong dates on the documents,  these errors could lead to a favorable outcome at your DMV hearing. Certain typos may be sufficient to show that the sworn report is not admissible under the business records exception to the hearsay rule.  Or there may be insufficient foundation to admit the document.

You Did Not Refuse To Undergo A Chemical Test

Maybe you did not refuse to undergo a chemical test. Probably, you attempted to blow, but you did not have a strong breath. Perhaps the police did not provide you with an option to take an alternative blood draw. The police could also have misunderstood your questions about the procedure and termed you hostile or stated that you refused to undergo a chemical test even though you were not given a fair opportunity.  Sometimes a driver does say they will not take a chemical test but the officer fails to properly admonish the driver of the consequences of failing or refusing a test.  This is also a defense to the refusal allegation.  If there are no BAC results and you did not refuse or fail to take a test after being properly requested to do so and admonished, your driver's license cannot be suspended.

The Police Failed To Advise You On The Consequences Of Refusing To Undergo A Blood or Chemical Breath Test

If you refuse to undergo a breath or a DUI chemical blood test, the police must advise you that your driving privilege will be suspended for a minimum of one year.  Under Vehicle Code Section 23162(a)(1)(A),

“A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153. If a blood or breath test, or both, are unavailable, then paragraph (2) of subdivision (d) applies.”

In California, police arrest many drunk driving motorists and often rush through the motions. The action against your driving privilege for a DUI could be set aside at a DMV hearing if the police do the following:

  • Fail to give the admonition or leave out key parts of it
  • Recite the admonition in a mechanical way and ignoring the driver’s questions which demonstrate the driver is confused (referred to as officer-induced confusion”)
  • Tells you that refusing the test “could” or “may” lead to a suspension, but not using the word “will” or a similar word denoting the high likelihood or certainty that a failure to complete a test will result in a suspension or revocation.

The Police Did Not Have Probable Cause To Detain You For DUI

Under California law, the police must have reasonable cause to detain you for driving under the influence. If the police had no reasonable cause, then the subsequent arrest would be illegal and the hearing officer must set your driver's license suspension aside at your DMV hearing. Your attorney could present some reasons why the police did not have reasonable cause to detain you or probable cause to arrest you. For instance, perhaps you were:

  • Involved in an accident but did not start drinking until you got home, after which the police came to interview you
  • Obeying all traffic regulations and were pulled over only on an officer’s hunch that you were leaving a bar and would therefore be under the influence
  • Obeying all traffic laws but the officer unreasonably believed you committed an offense although the act did not constitute a violation of the law (i.e., you were the only car on the road and you turned right at a stop sign without using the blinker. The officer was too far away to be impacted by the lack of use of your turning signal and no other vehicles were present. In such a case, failing to use your blinker would not be a valid reason for a stop.)

There Were Physiological Explanations For Your False High BAC Level

There could be significant contributors in your body to a BAC of 0.08 or more unrelated to the amount of alcohol you consumed. They include:

  • Residual mouth alcohol
  • Fermentation in the blood
  • Low carbohydrates and high protein diets can cause false high BAC results (ketosis).
  • Medical reasons like acid reflux and GERD

If you suffered from the above conditions when you provided your breath sample, you should discuss this with your attorney and consider consulting with an expert witness, including a physician specializing in the condition and a toxicologist.

Benefits Of Winning A DMV Hearing

You will retain your driver's license if you win your DMV hearing. However, if convicted of a DUI in court you may face a separate suspension.   Testimony that was obtained at the DMV hearing can be used for impeachment at trial.  This can have a huge benefit if the officer testifies different at the trial than he or she did at the DMV hearing.  You could also receive a better offer from the prosecution during the negotiations of a plea bargain for your DUI criminal case if your attorney can show a serious flaw in the evidence or issues of credibility of the officer that became clear at the DMV hearing.  Since the burden of proof and elements that must be proven are different at the DMV hearing than at a criminal trial, winning the DMV hearing is not a guarantee you will win in court.

The prosecutor could still have substantial evidence to proceed to trial. If the judge convicts you of the crime, the court clerk will send an abstract of judgment electronically to the DMV.  This will trigger a suspension or revocation depending upon what you are convicted for and how many, if any prior DUI convictions you have sustained in the past 10 years.  Therefore, you need a knowledgeable DUI defense attorney to defend you at both the administrative DMV hearing and in the criminal court.

Burden Of Proof at a DMV Hearing

The DMV officer will determine whether you were driving a vehicle with a .08 BAC or more (or .01 for under 21 or .04 for commercial driver), or whether you failed or refused a chemical test per VC 23612, using ‘’a preponderance of evidence’’ standard. ‘’A preponderance of evidence’’ means that it is merely more likely than not (more than 50 percent likely) that you violated California DUI laws.

In most criminal cases, prosecutors face a significant burden to prove a DUI beyond doubt. This is a much higher burden than the ''by a preponderance of the evidence'' burden used in DMV hearings. Therefore, you could lose a DMV hearing because it is a civil proceeding relying on a much lower standard of proof but win in the criminal DUI trial.

Consequences Of Losing A DMV Hearing

Even if you lose your DUI DMV hearing, there could be a possibility that during the court proceedings, your attorney will elicit information that could convince the prosecutor to offer you a reduced plea. Your win at trial or a specific plea bargain could result in the DMV setting aside your suspension even if it has gone into effect.  This only occurs if you obtain a not-guilty verdict in court on a DUI that involved an allegation of driving with a specific amount of alcohol in your system (i.e., .08 or more, .04 or more, or .01 or more). If a not guilty verdict is sent to the DMV after the DMV already issued a suspension on the same issue, it will be set aside as required by the Helmandollar v. DMV case from 1992.

However, if you are convicted of a DUI in court, your license will be suspended a second time or your suspension from the court conviction may overlap with the APS (DMV) suspension. However, you may be eligible to still drive with a restricted license during the entire suspension period.

Suspension Of Your Driver’s License For a First DUI

Your first DUI arrest will result in a driver’s license suspension for six to ten months if you are convicted of a DUI in court and also lose the DMV hearing. After one month, you could convert your suspended driver’s license into a work restricted license that permits you to drive to and from your California DUI class, to and from work and for any work-related purpose.  If you don’t want to sit out a 30 day hard suspension you will need to install the ignition interlock device (“IID”) but then you can drive for all purposes at any time, as long as you only drive the vehicle equipped with the IID.  To obtain a restricted license you must do the following:

  • Pay a $125 reinstatement fee
  • Enroll in California DUI school
  • Submit an SR-22 insurance form
  • Install an IID if you want to get the IID restricted license

If another person suffers injuries because of your DUI, California DMV could suspend your driver’s license for one year. If you refuse to undergo a breath or chemical blood test, your driver’s license will be suspended for one year. If you refuse or fail to undergo a chemical test the DMV will not allow you to convert your suspended license to a restricted one.  You will also be unable to convert a suspended license to a restricted one if you were driving with a BAC of 0.01% or higher while under the age of 21.  There is a possibility of a “critical need” restricted license for those under 21 but it is difficult to obtain without proof that the driver cannot use public transportation, uber or carpooling to get to work or school.

Suspension Of Your Driver’s License For a Second DUI

Your second DUI arrest within ten years will cost you a two-year driver's license suspension if you lose at the DMV hearing. You could convert your suspended driver’s license to a restricted license if you meet the following conditions:

  • Pay a $125 reinstatement fee
  • Enroll in California DUI school (18 month SB38 program)
  • Install an IID for at least 1 year
  • Submit an SR-22 insurance form

Suspension Of Your Driver’s License For Third DUI Offense

Your third DUI arrest within ten years will result in a driver's license suspension for three years if you lose the DMV hearing or are convicted in court. You could convert your suspended driver’s license to a restricted license if you meet the following conditions:

  • Pay a $125 reinstatement fee
  • Enroll in California DUI school (18 month SB38 program)
  • Install an IID for at least 2 years
  • Submit an SR-22 insurance form

Appealing Your DUI DMV Hearing Decision

If the DMV hearing officer makes a wrong judgment and suspends your license when you should have prevailed at the hearing, the law allows you to appeal the decision. You can file an appeal directly with the California Superior Court or request the DMV conduct a departmental review. You can locate the period and instructions for appealing the DMV's decision on the written form notifying you regarding the department's decision after a DMV hearing. You will have to pay a non-refundable fee of $120 for the DMV review.

If you decide to make your appeal directly to court, your appeal is via a writ of mandate. A writ of mandate is a request you make to the court to review and reverse the DMV hearing’s decision. Filing a writ could cost you between $2,500 and $3,500. If you appeal the DMV's hearing decision, you need to hire an experienced DUI writ attorney.

Find A Criminal Defense Attorney in Pasadena or Los Angeles—Ann Gottesman is Here to Help!

If you are scheduled for a California DMV hearing, you need to consult with a competent attorney knowledgeable in the law that applies to DMV hearings. Dealing with a DUI charge, fatal car accident or other situation that results in an accused being charged criminally can be compounded by the administrative hearing that follows parallel to the criminal case.  At The Law Office of Ann Gottesman, Ann understands the stress and pressure a client experiences when facing the possibility of losing his or her privilege to drive while also facing criminal charges.  Ann will help you prepare for the court case as well as the DMV hearing to ensure the best possible results.   

You can reach Ann Gottesman directly at her Pasadena office by calling 626-710-4021 for a free consultation.