If arrested for drunk driving, the arresting police officer will take hold of your driver’s license and offer you a Notice of Suspension. You have ten days within the arrest to arrange to have your Department of Motor Vehicle hearing. Otherwise, you lose your entitlement to the hearing, and the driving privilege will be suspended after thirty days. Driver’s license suspension is the last thing you want to happen. The legal team at Orange County DUI Defense Lawyer Group has many years of experience that provide us with an unmatched foundation of knowledge and has assisted thousands of driving under the influence defendants to retain their driver’s licenses. We can review your arrest circumstances and develop the most effective legal defenses tailored to ensure you win your DMV administrative hearing.

Understanding the California Department of Motor Vehicles Hearing

Under California law, there are two ways of losing your driver’s license if you are arrested for driving under the influence (DUI). One is being convicted of the crime in court. The other way that can occur whether you are convicted or not is an administrative suspension (admin per se license suspension) handled by the DMV.

The DMV administrative hearing is held at the DMV office. The hearing aims to determine whether your driver’s license should be suspended or not following your DUI arrest.

If arrested for DUI, the arresting cop will seize the suspect’s license and issue them with a Notice of Suspension that functions as their temporary driver’s license for thirty (30) days. The notice will advise the driver that they can request an administrative hearing within ten days of their arrest to halt their license suspension.

If they fail to request their hearing within the 10-day duration, they will lose the entitlement to do so. Additionally, the driving privileges will be withdrawn automatically after thirty days.

Requesting the hearing postpones the driver’s license suspension until your hearing outcome. If you prevail in your hearing, the suspension will not happen.

What Happens When the DMV Fails to Conduct the Hearing Within 30 Days?

The DMV hearing officer will not terminate your thirty-day license when the DMV fails to conduct the hearing within 30 days.

Instead, the DMV will grant you unrestricted driving privileges until the agency:

  • conducts your hearing, and
  • make the suspension decision.

Your Rights During the DMV Administrative Hearing

A DMV administrative hearing is more stress-free than a court trial. First, a Department of Motor Vehicles hearing officer presiding the case does not have a formal legal education. Second, the burden of proof (amount of proof needed to establish guilt) is easy to satisfy in DMV hearings than in criminal proceedings. Third, the DMV hearing occurs in a DMV office. It can also happen over a telephone call.

Irrespective of these informalities, you have rights during the administrative hearing.

You are entitled to legal representation at the hearing at your expense. In other words, unlike in court proceedings, the Department of Motor Vehicle will not assign a defense lawyer on your behalf if you can afford one.

During the DMV hearing, you have a right to:

  • Analyze and challenge different pieces of evidence like a police report
  • Cross-examine any witness
  • Testify
  • Subpoena any witnesses

Scheduling Your DMV Administrative Hearing

To schedule the DMV hearing, you should contact the nearby Department of Motor Vehicles driver safety branch office; the administrative hearings are held here. Please note that the office is not the conventional Department of Motor Vehicles field office where drivers acquire their licenses or register vehicles.

If a defendant has a criminal defense lawyer, the counsel can request and book the hearing, provided the driver retains their legal services within the 10-day window. Moreover, they can attend the administrative hearing on the motorist’s behalf.

You can request the hearing via fax or phone.

Phone Request

A phone request means you call the applicable diver Safety Office and request for a hearing and a stay.

Additionally, you can ask for discovery (request for the police report documented in the driving-related crime).

When making this call, ensure you have your ticket. The Department of Motor Vehicles personnel handling your call will ask for your arrest location, date, type of chemical test administered, and the name and identification number of the police officer.

Fax Request

When using fax, ensure your letter includes:

  • Your name
  • Your contact information
  • Your license number
  • Your arrest’s location
  • The type of chemical test administered
  • The name of the arresting police officer
  • The name of the police authority that arrested you
  • You can find most of these details on your arrest ticket.

After using fax, you will receive a fax confirmation that confirms:

  • The driver safety fax number that you used, and
  • The date and time of the fax

How to Win Your DMV Hearing

Preparation and legal research can significantly increase the chance of prevailing in the hearing.

The DMV looks to address specific issues, but they depend on whether the suspension involves driving under the influence charges or refusing to take chemical tests.

If the driver’s license suspension is for drunk driving alone, the main issues are:

  • Was the DUI traffic stop lawful?
  • Did the cop have valid reasons for approaching you?
  • Did the law enforcement have a reasonable belief that you operated your car while drunk (probable cause) and to detain and arrest you?
  • Was your blood alcohol concentration 0.08 percent or higher?

If your driver’s license suspension involves refusing to take chemical testing like urine, breath, or blood, the key issues will be:

  • Did you refuse the chemical test or fail to complete it?
  • Did the police advise you, in adherence to laws, of the consequences of refusing to take the chemical test?

Your chances of winning your DMV administrative hearing depend on the case circumstances. Some of the legal strategies to prevail in the hearing include:

The Defendant Was Not Operating a Motor Vehicle During Their Arrest

If the cop did not see a driver driving the car and neither:

  • did the DMV subpoena a witness who did, nor
  • exists proof that could prove that the motorist was driving,

the California DMV hearing officer ought to set aside the license suspension.

For instance, if a person was out drinking alcohol and after returning to the vehicle, they realized they should not drive and decided to sleep in their car. A police officer approaches to check whether the individual is okay, smells an alcoholic odor, and arrests them for DUI. The arrest is illegal because the individual was not drunk driving.

The DUI Sobriety Checkpoint Was Illegal

If the police arrested you at a driving under the influence checkpoint that does not meet the DUI laws requirements, your arrest is unlawful. In other words, although you were driving your car while drunk, your illegal arrest could override this fact, and the hearing officer ought to set aside the suspension.

The legal requirements for a checkpoint include:

  • The supervising officer should make all operational decisions
  • The criteria for stopping vehicles should be neutral
  • The DUI checkpoint should be reasonably situated
  • Police should take enough safety precautions
  • The checkpoint duration and time should reflect good judgment
  • The police should detain motorists for a minimal duration
  • The roadblock should be publicly advertised in advance

The Police Did Not Have Probable Cause to Arrest You for Driving While Drunk

If the law enforcer did not have probable cause (a reasonable belief that you committed the crime), the DMV hearing officer should overrule the suspension of the driver’s license. Some of the arguments your criminal defense lawyer can raise to establish that the police did not have probable cause when arresting you include:

  • Although you were a traffic collision victim, you started drinking alcohol after arriving home, after which the law enforcers interviewed you
  • You complied with traffic regulations and were pulled over due to racial profiling (stopping you based on your nationality, ethnicity, or race)

The Police Did Not Observe You for At Least Fifteen Minutes

Title 17 of the Code of Regulations sets forth guidelines on how chemical tests should be collected, analyzed, administered, and stored. The DUI arrest should be scrutinized if the cop fails to abide by the law.

Law enforcers should observe the driver for more than fifteen minutes before conducting the chemical test. It is to make sure the driver does not engage in anything that can comprise their test results like eating, drinking, smoking, regurgitating, or vomiting.

Failing to comply with this regulation could mean the alcohol level in the suspect’s system was not 0.08 percent or greater during the arrest, leading to a win at their administrative hearing.

You Did Not Refuse to Submit to Chemical Testing

If a defendant did not refuse to submit, they should win the DMV hearing. If there exists no refusal or blood alcohol concentration results, you cannot lose your driving privileges.

Your skilled defense lawyer could argue that:

  • Although you blew, the breath samples were inadequate
  • The police officer did not offer you a blood draw as an alternative
  • You inquired about the procedure, and the cop misinterpreted the questions as hostility and assumed you were refusing.

There Were Mistakes in the Police’s Paperwork

After police arrest you, they should fill out specific mandatory paperwork and report.

If the arresting officer:

  • fails to sign their paperwork,
  • records inaccurate blood alcohol concentration results,
  • forgets to report BAC results, or
  • note down an inaccurate date on the documents,

and cannot recall the arrest details to fix the errors, it can lead to a favorable outcome for you at the DMV hearing.

Physiological Reasons for the False High Blood Alcohol Concentration Level

Numerous reasons not associated with the quantity of alcohol you drunk can cause your BAC to be more than 0.08 percent. They include:

  • Residual mouth alcohol
  • Medical conditions like acid reflux, heartburn or gastroesophageal reflux disease (GERD), diabetes
  • fasting
  • A high-protein, low carbohydrate diet

You must inform your defense attorney if you are on a diet or have a medical condition. The legal counsel can prove that the chemical test was inaccurate and you did not drive drunk. Sometimes all this requires is your medical records, expert witness testimonies, and witness statements.

The Law Enforcer Failed to Adequately Advise the Defendant of the Repercussions of Failing to Take Chemical Tests

If a person refuses to take chemical tests, the police officer should notify them that the DMV will suspend their license for a year. The admonition is written, and the cop should read it. Otherwise, it could result in a win in the refusal hearing.

If the arresting law enforcer engages in any of the following, the DMV hearing officer will set aside the license suspension:

  • Intentionally decides not to give the warning
  • Forget to issue it
  • Recites their interpretation of this warning instead of reading it, confusing the defendant
  • Telling that the refusal could lead to a compulsory license withdrawal instead of saying the result will lead to a license suspension

Breathalyzer Calibration Errors

A breathalyzer is a breath analysis testing device that a DUI suspect blows into, and the instrument registers the motorist’s BAC. While courts accept the result as strong evidence of your BAC, the police should demonstrate the device can give reliable results.

In California, breathalyzers should be re-calibrated and maintained after every ten days or 150 blows (whichever comes earlier). Other guidelines include:

  • The device should be on the list of accepted devices
  • The administering officer should be certified in using the device
  • The administering police officer should act so in adherence to their training
  • The chemical test should capture more than two measurable readings within 0.02 of each other

Suppose you can prove that the law enforcement agency did not comply with proper calibration procedures or that the breathalyzer consistently provided erroneous readings. In that case, the DMV hearing officer should restore your driving privileges.

Your defense lawyer can subpoena the breathalyzer’s calibration and maintenance records and use them as evidence that the device was unsuitable to deliver reliable results.

How Your DMV Hearing Differs From the DUI Court Process

The DMV hearing is independent of the court proceeding. The hearing officer does not care whether you committed the driving-related crime or not. Instead, they focus on your arrest circumstances and whether the driving privilege should be withdrawn.

These proceedings are related. Testimonies obtained during your DMV administrative hearing could convince the prosecution to reduce the charges or dismiss them.

Suppose, during the jury trial, a defendant receives a not guilty verdict on VC 23152(b) charges. In that case, the verdict can force the California Department of Motor Vehicles to reissue the driving privileges. Nevertheless, pleading no contest or guilty to reduced charges or a charge dismissal will not have a bearing on the driver’s license revocation or suspension.

Unlike DMV hearings, court trials are more comprehensive. A hearing officer (a DMV worker) governs the hearing. On the other hand, impartial jurors govern the drunk driving jury trial. All the 12 jury members should unanimously agree that you violated the law before convicting you.

Another significant variation is that the Department of Motor Vehicles hearing officer should find a preponderance of the evidence that the defendant engaged in the criminal activity. In a criminal case, the prosecution must prove beyond any reasonable doubt, which is a higher burden of proof than the preponderance of the evidence, that you committed the offense. Consequently, the defendant can win the criminal trial and lose their DMV administrative hearing or vice versa.

It is wise to retain a criminal defense counsel who is experienced and knowledgeable with both proceedings.

What Occurs If You Prevail Your Department of Motor Vehicles Hearing?

The Department of Motor Vehicles hearing officer will set aside the license withdrawal if you prevail in the hearing. In other words, you will have driving privileges.

It could also mean obtaining a more favorable offer from the prosecutor during plea bargaining. If your hearing reveals mistakes in the prosecution’s case against you, it can persuade the prosecution to dismiss the criminal charges.

However, since the two proceedings are independent, a win at the hearing is not an assurance you will obtain the best possible outcome at your court proceeding. The prosecution can still believe that they have sufficient evidence against the defendant. If the driver is not ultimately found guilty, the court has the discretion to either suspend or revoke your driving privileges. It is where seasoned legal representation comes in handy.

What Happens After Losing Your Hearing?

The license suspension or revocation will become effective once you lose the DMV hearing. The circumstances and length of the driving restriction depend on whether this is a first or subsequent crime.

Driver License Suspension Due to a First-Time DUI

If you lose your DMV hearing following your first-time DUI crime, the DMV will suspend your license for ten months. After the initial month, you can have your license converted into a restricted license that permits you to go to DUI school and work. However, DMV can restrict the license after you:

  • Submit your SR-22 auto-coverage form
  • Pay a reinstatement fee of $125
  • Enroll in DUI school

If your DUI caused injuries to somebody else and you lost the hearing, the license will be suspended for a year.

If you fail to take a chemical test, the Department of Motor Vehicles will withdraw the license privileges for a year. 

Please note that you cannot have your license restricted if you did not submit to chemical testing or caused a DUI with injury.

License Suspension Following a Second DUI Crime

If you are charged with a second-time drunk driving crime and lost the DMV hearing, the license suspension will be two (2) years. You can qualify to obtain a restricted driver’s license after a year.

If the DUI crime does not involve aggravating factors like an accident or high BAC, you can obtain your restricted driver’s license after three months.

If the DUI led to somebody else suffering injuries, the license suspension would be three years. The driving privileges will become restricted driver’s license after a year.

If you did not take a urine, breath, or blood test, the DMV would withdraw your driving privileges for two years.

License Suspension After Committing a Third-Time DUI Crime

If you face a third drunk driving charge within ten years and lose the hearing, the Department of Motor Vehicles will suspend the license for up to three (3) years. However, you can qualify for a license restriction after a year.

If your third-time drunk driving crime within the lookback period caused injuries to somebody else, the suspension would be five years. The license can also become restricted after a year.

Failing to take chemical tests in your third-time DUI crime attracts a three-year license suspension.

Underage DUI

If a driver is below 21 and drove their car with a BAC of 0.01% or greater, they violate the zero-tolerance DUI law. The DMV hearing officer will suspend their driver’s license after discovering they operated the car with any alcohol level in their system.

If they lose their hearing, the Department of Motor Vehicles will withdraw their driving privileges for a year. And if they fail to submit to chemical testing, they will face a three-year maximum license suspension, depending on the number of their previous DUI violations.

An Out-of-State Motorist

If charged with driving under the influence in the Golden State but do not reside in the state, you can schedule your hearing the same way discussed above. You can also have your lawyer attend the hearing by phone or in person.

If your driver’s license is suspended in Golden State, it can also affect your driving privileges at home. Most states are members of the Interstate Drivers License Compact. According to the DLC, every motorist in the U.S. has one driving record and driver’s license. Consequently, your home state can take action against you if you are arrested for DUI in California and have the privileges suspended after losing the DMV hearing.