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Article – DMV Hearing – Issues & Defenses

Article – DMV Hearing – Issues & Defenses

California DMV Hearing: Issues & Defenses

It may be possible to demonstrate that a driver’s alcohol level was below the legal limit at the time they were driving, even though it rose to a higher level at the time they were tested.


Anyone arrested for DUI in California, whether they hold a California driver’s license or not, must request a hearing with the Department of Motor Vehicles Driver Safety Office that is closest to the location of arrest. This request MUST be made within 10 days of the date of the arrest (including weekends and holidays), or the arrestee’s license will automatically be suspended after 30 days.

Out-of-state residents that have the misfortune of being arrested in California are not exempt from this obligation, even if they don’t have a California license or if they have no intention of returning to California. Because of something called the Interstate Driver’s License Compact, which operates to share information between the various states, the California DMV action will be reported to the driver’s home state, and the license will be suspended there! A license-holder from another state acts at his or her peril by not requesting the hearing, even if they never intend to return.

Assuming the hearing request is made on a timely basis, the issues to be determined at the hearing will vary, depending upon whether the accused gave a chemical test of his or her blood or breath, or whether they refused a chemical test.

Where a chemical test was given, there are three issues:

  1. First, did the officer have reasonable cause to believe the licensee had been driving a motor vehicle while under the influence of alcohol?
  2. Next, was the licensee lawfully arrested?
  3. Finally, did a valid and admissible chemical test indicate a blood or breath alcohol result in a BAC of .08% or higher?

Where a chemical test was refused, the issues differ slightly, and include whether the licensee was properly advised of the consequences of refusal, and whether the licensee refused to submit to testing after being so advised.

The DMV Hearing Process

Unlike criminal court, where the prosecution must bring in "live" witnesses to prove the case against the accused, the DMV generally does not bring in any such witnesses. Instead the DMV usually attempts to support its action by introducing various police reports into evidence, as well as the "official" reports relating to the chemical test where one was given.

Therefore, the fight at the DMV Hearing is generally a hyper-technical one, centered on the admissibility of the DMV’s proposed evidence. The DMV’s proposed evidence is hearsay. Hearsay is generally inadmissible, absent an exception to the hearsay rule that applies. One possible avenue for success is to challenge the admissibility of this evidence; if the evidence cannot legally be admitted, the DMV must set aside its action.

However, anyone who has attended a DMV Hearing can attest to one very odd aspect that is immediately noticeable: The prosecutor and the judge are the same person. That’s right. The very person who seeks to introduce evidence on behalf of the Department is the same person who rules upon whether or not that evidence will be admitted. As amazing as it sounds, this has survived challenges by lawyers for years. Equally amazing is that the DMV Hearing Officer who is making these legal rulings is not a judge, or even a lawyer. They are generally DMV employees who have simply risen through the ranks, and received cursory training in how to conduct these hearings.

Notwithstanding this inherent systemic unfairness, DMV Hearings can be fought and won. Challenges to the DMV’s evidence are frequently granted. Additionally, it may be possible to demonstrate that a driver’s alcohol level was below the legal limit at the time they were driving, even though it rose to a higher level at the time they were arrested. Additionally, DMV Hearings provide an excellent opportunity to gather information that can be used to help in the criminal court case. Unlike civil cases, where people are merely fighting over money, there are no depositions in criminal cases. This means that there is no legal process by which a defense lawyer can compel a police officer to sit there and answer questions under oath about what happened on the night of the arrest. However, a skilled DUI defense lawyer will be aware that they may subpoena police officers to the DMV Hearing, where those officers will provide testimony under oath, the same oath that is given in court. This means that any favorable testimony that is developed at the DMV Hearing will be available for use in the criminal case.

DMV Hearing Consequences

The consequences of a loss at the DMV Hearing level can be quite drastic. For a first-time offender who submits to a chemical test, the DMV will suspend the drivers license for four months. However, it is possible to get a restricted license (that allows for driving to/from and during the course of work, and to/from an alcohol education program) if certain criteria is met. For a first-offender who refuses to take a chemical test, a license suspension of one year will be imposed, with no opportunity for a restricted license.

For second-offenders (or greater), the consequences increase. For second-offenders who provide a chemical test, a one-year license suspension will result absent victory at the DMV Hearing level. For second-offenders who refuse chemical testing a two-year suspension is in step.

Those convicted of a third-offense DMV in court face a three-year license revocation. Obviously, the stakes in these cases are very high and help from a trained legal professional can make all the difference in the world.

Contact the Law Offices of Shelley D. Dwyer by calling 650-367-8500 and schedule an appointment (usually available the same day), or fill out an online contact form.