DUI DMV Hearing Overview

Administrative hearings conducted by the DMV differ from court trials because they have relaxed evidence standards and take place before a DMV Driver Safety Officer.   They provide an opportunity for individuals to contest actions taken against their driving privilege.  The hearing proceedings are tape recorded and are conducted by telephone or in person.   

DMV Hearing

At the hearing, the driver is informed of the legal grounds for the action, can review and challenge the evidence, and can present evidence including witnesses and testimony to persuade the department not to act.  The rules that control these hearings are found in the Vehicle Code, the Government Code, and in various Appellate and Supreme Court rulings. Following the hearing, the Driver Safety Hearing Officer will decide to uphold or set aside the DMV action.

Requesting DMV Hearing – Time Limits

Check the notice you received advising you of the action against your driving privilege. If the notice indicates you have the right to a hearing, you have ten days following personal service of the notice to request a hearing.  If you do not make a timely request, your right to a hearing will be forfeited.

It’s Important to Read the Documents

Read all the documents you were personally provided or that were mailed to you by DMV. These documents explain the issues involved in your case, what deadlines you must meet, and your rights in the administrative hearing process.

DMV Hearing is separate from Court Hearing

If you have been arrested for DUI, you have two problems – A DMV problem and a criminal court problem.  The DMV and the Court process are separate and each must be fought independently.  The DMV case relates to your CA driving privilege and whether your license will be returned, suspended, or revoked.  The Court case deals with punishment for the crime of DUI and may include jail time, fines, alcohol education classes, license suspensions, probation, vehicle impound, installation of an ignition interlock device or a combination of these things.  Sentencing enhancements may increase punishment and length of license suspension. 

DMV License Suspension v Court License Suspension

There are two ways your driving privilege in CA can be suspended.  If you lose or default on the DMV hearing, a 4 month to 1 year suspension can occur.  If you get convicted in court, it will trigger a 6 month to 10-month suspension.  In most first offense cases, you are eligible for a work restricted license after 30 days.   

DMV Hearing rights

You have the right to:

  • Be represented by an attorney, at your own expense.
  • Review the evidence and cross examine the testimony of any witness for DMV.
  • Testify on your own behalf.
  • Cross-examine opposing witnesses.
  • Subpoena witnesses and/or documents.
  • Introduce evidence on your behalf.
  • A full and fair consideration of the facts by an impartial person.
  • A Department Review and/or judicial appeal of any adverse decision.

DMV Hearing Issues – 1st, 2nd, 3rd Offenses

To win the DMV hearing you need to win one of the three following issues.    

  1. Did the Peace Officer have reasonable cause to believe you were driving a motor vehicle in violation of Vehicle Code Section 23140, 23152, or 23153
  2. Were you legally detained and placed under lawful arrest?
  3. Were you driving a motor vehicle when you had 0.08% or more by weight of alcohol in your blood?

Winning DMV Defenses

The DMV has the burden of proof to prove the case against you.  Although DMV hearings are tough to win, they can be won if you hire an attorney that knows what they are doing.  The following are just some of the areas were the DMV hearing can be won:

  • You were not the driver of the vehicle
  • No evidence that the vehicle moved
  • The officer did not have a legal reason to pull you over
  • You were not given a breath/blood test within 3 hours of driving
  • The officer didn’t observe you for 15 minutes prior to the breath test as required by law 
  • The officer wasn’t properly trained and qualified to administer the breath test
  • The police didn’t follow the proper procedure in administering the breath/blood test
  • You were under 0.08% BAC at the time of driving
  • The DS 367 Officers’ statement was not properly sworn and filled out
  • The DS367 Probable Cause Statement was not properly filled out
  • The Officer’s “official duty” was rebutted
  • Significant mistakes made in the Officer’s Statement DMV form and police report
  • Insufficient or improper DMV evidence
  • Witnesses don’t show up to testify

DMV Hearing Suspension Periods

On a first offense, the suspension period is 4 months, on a 2nd  and 3rd offense its 1 year. On a first offense, you may apply for a work restricted license after 30 days.  On a 2nd and 3rd offense there is a hard suspension with no restriction eligibility.     

DMV Refusal Hearing Issues

If you refused to take a breath test or blood test, there are different issues in your DMV Hearing:

  1. Did the Peace Officer have reasonable cause to believe you were driving a motor vehicle in violation of Vehicle Code Section 23140, 23152, or 23153
  2. Were you legally detained and placed under lawful arrest?
  3. Were you told that, if you refused to submit to or failed to complete a test of your blood or breath, your driving privilege would be suspended for one year or revoked for two or three years?
  4. Did you refuse to submit to, or fail to complete, a blood or breath test after being requested to do so by a peace officer?

Winning DMV Refusal Defenses 

The DMV has the burden of proof to prove the case against you.  Although DMV hearings are tough to win, they can be won if you hire an attorney that knows what they are doing.  Since all licensed drivers are required to submit to a chemical test in a DUI case, action can be taken against you even if your blood alcohol level is 0.0.  The following are just some of the areas were the DMV refusal hearing can be won:

  • You were not driving the vehicle
  • The office didn’t have a legal reason to pull you over
  • You consented to give a chemical test
  • You had a medical reason not to give a test
  • The officer didn’t properly advise you of your rights
  • The officer confused you when advising you of your rights 
  • The DS 367 Officers’ statement was not properly sworn and filled out
  • The DS367 Probable Cause Statement was not properly filled out
  • The Officer’s “official duty” was rebutted
  • Significant mistakes made in the Officer’s Statement DMV form and police report
  • Insufficient or improper DMV evidence

DMV Refusal Hearing Suspension Periods

If you refused the chemical test, this is very serious.  On a first offense refusal, the suspension period is 1 year, on a 2nd offense refusal its 2 years, and on a third offense refusal its 3 years.  This is a hard suspension with no restriction eligibility.     

DMV Hearing Issues – DUI Probation/Under 21 Years Old 

To win the DMV hearing you need to win one of the three following issues.    

  1. Did the Peace Officer have reasonable cause to believe you were driving a motor vehicle in violation of Vehicle Code Section 23140, 23152, or 23153
  2. Were you legally detained and placed under lawful arrest?
  3. Were you driving a motor vehicle when you had 0.01% or more by weight of alcohol in your blood?

Winning DMV Defenses

The DMV has the burden of proof to prove the case against you.  Although DMV hearings are tough to win, they can be won if you hire an attorney that knows what they are doing.  The following are just some of the areas were the DMV hearing can be won:

  • You were not the driver of the vehicle
  • The officer did not have a legal reason to pull you over
  • You were not given a breath/blood test within 3 hours of driving
  • The officer didn’t observe you for 15 minutes prior to the breath test as required by law 
  • The officer wasn’t properly trained and qualified to administer the breath test
  • The police didn’t follow the proper procedure in administering the breath/blood test
  • You were under 0.01% BAC at the time of driving
  • The DS 367 Officers’ statement was not properly sworn and filled out
  • The DS367 Probable Cause Statement was not properly filled out
  • The Officer’s “official duty” was rebutted
  • Significant mistakes made in the Officer’s Statement DMV form and police report
  • Insufficient or improper DMV evidence

DMV DUI probation/under 21 Hearing Suspension Periods

If you are under 21 or on DUI probation and you lose the DMV hearing, DMV will suspend your license for 1 year with no with no restriction eligibility.     

Presenting your own evidence

Evidence you present must be relevant to your case and can be sworn documents, medical records, collision reports, photographs, or other items. Evidence can also be sworn testimony taken under oath. On your hearing date, be prepared to bring any witnesses or written witness statements regarding the specific issues involved in your case. Your witnesses should be prepared to answer any questions asked by the hearing officer.

Continuing the DMV Hearing 

If you cannot attend your administrative hearing on the scheduled date and time, you must contact DMV prior to the hearing and within 10 working days of the time you know, or should have known, you need a continuance. You may have to file a written statement indicating the reasons you cannot appear. DMV may grant the continuance if you are not responsible for causing the delay and made a good faith attempt to prevent the delay. If a continuance is not granted and you do not attend your hearing, DMV will proceed with the hearing in your absence.

Notification of the decision

Following the hearing, you will be notified of the hearing officer’s decision in writing, even if you do not attend your hearing. The time it takes for DMV to make a decision depends on the issues being addressed, the amount of evidence and witness testimony presented.

Decision Results

Depending on the type of administrative hearing, a hearing officer may uphold or set aside the DMV action.  If a time period for an action against your driving privilege is specified in the California Vehicle Code, the hearing officer cannot change the length of the action.

Appealing the decision

Should the hearing decision go against you, you have the right to request the DMV to conduct an administrative review of the decision, as well as the right to appeal the decision to superior court.  Requests for a department review, or an appeal of the decision in Superior Court, must be made within a certain time period depending on the laws affecting your case and a fee will be required. The time periods for appeal and other information concerning your specific appeal rights are provided on the notice advising you of the administrative hearing decision.

No show at the hearing

If you request a hearing and do not attend the hearing, the department will proceed with the case against you.

You Can fight the DMV, contact our office today for a free same day consultation

We have successfully represented many drivers at the DMV APS hearing and have obtained many set asides. Call our office today at (916) 939-3900 or (530) 621-1800 to speak directly to an attorney about your DMV APS hearing.  We are open 24/7/365 to answer your questions.