What are the chances of winning at a DMV hearing?

The chances of winning your DMV hearing depend on the facts of the case. If law enforcement has a weak case or clearly violated your rights, it is easier to win at the hearing. Regardless of the case, hiring a skilled DUI attorney increases the likelihood of getting a good outcome.

What are the odds of winning at the DMV hearing?

If you have been arrested and accused of driving under the influence (DUI), the odds of winning your DMV hearing depend on the facts and circumstances of the arrest. If police have a strong case for drunk driving, the odds of winning at the DMV hearing are low.

If the police made a mistake during the arrest, the odds are much higher. The legal advice of a DUI lawyer or criminal defense lawyer can increase the odds of success.

Factors that can increase or decrease the chances of a successful outcome include:

• whether the police officer had probable cause to initiate the traffic stop,
• how clear the officer’s instructions were,
• the results of a breath test,
• whether the officer warned you of the consequences of refusing to take a chemical breath test or blood test, and
• whether you refused to take the test.

The odds of winning the hearing are not zero. You should strongly consider invoking your right to have the administrative hearing. Doing so can challenge what would otherwise be an automatic driver’s license suspension.

Furthermore, DMV hearings are like “dry runs” for the criminal case. It allows the criminal defense attorney to

1. cross-examine the arresting officer and
2. find inconsistencies in the state’s evidence.

This, in turn, could contribute to the criminal case getting reduced or dismissed.

What is a DMV DUI hearing?

The DMV hearing is the administrative prong of a DUI or DWI case. It is where the Department of Motor Vehicles (DMV) will decide whether to suspend your license for a DUI arrest.

Anyone who has been arrested for suspected drunk or drugged driving in California will face 2 different legal proceedings:

1. a criminal DUI charge in a state court case, and
2. an admin per se hearing at the DMV.

This DMV hearing is strictly limited to your driving privileges. Unlike in a criminal case, the DMV case cannot

• send you to jail or
• put you on probation.

During the DUI arrest, the arresting officer will confiscate your driver’s license. The officer will give you a pink “Notice of Suspension” paper. This Notice serves as a temporary, 30-day license. Once these 30 days expire, your driver’s license will be suspended.

The Notice also tells you of your right to a DMV hearing, formally known as a Driver Safety Administrative Per Se (APS) hearing, to prevent this impending suspension. However, you have to request this hearing within 10 days of the arrest.

If you do not invoke this right in 10 days, you will lose it. The hearing will not be scheduled. There will be an automatic suspension of your license when the temporary Notice expires in 30 days.

Once the hearing is scheduled, your driver’s license suspension will be put on hold until the hearing’s outcome.

The hearing, itself, is held at the DMV, not a criminal court. It can even be held over the phone. The hearing officer is a DMV employee, not a judge. These employees rarely have legal training. During this hearing, you have a right to:

• review and challenge the evidence against you, including test results, the arrest report, and the police report,
• subpoena and present witnesses, including the arresting officer,
• cross-examine any witnesses presented, and
• testify.

The DMV hearing officer will listen to evidence from both sides. He or she will then decide whether a preponderance of the evidence shows that you were under the influence. This burden of proof is substantially lower than the “beyond a reasonable doubt” standard needed in the criminal prong of a DUI case.

If the hearing officer decides that you were under the influence, he or she will

• sustain the action and
• uphold the license suspension.

The officer will set aside the action and reverse the suspension

• if there is not sufficient evidence, or
• if you successfully raise a defense.

What are some DUI defense strategies?

Numerous DUI defense strategies can be used at the DMV hearing. Some of the most common are:

• you were not actually driving,
• the officer did not have probable cause to initiate the traffic stop,
• the officer did not tell you of the consequences of refusing a chemical blood alcohol content (BAC) test,
• your BAC was legal, and
• you did not actually refuse a chemical BAC test.

Even if these prove unsuccessful, a DUI defense lawyer can use the hearing to gather evidence that the prosecutor’s case is weak. This can lead to a better plea deal or an acquittal at the criminal trial.

You were not driving

If you were not driving the vehicle, the hearing officer should reverse the suspension. This can be a strong defense in 2 circumstances:

1. someone else was driving the car at the time of the stop, or
2. you were in the driver’s seat, but were not driving.

The first situation can happen if someone else was in your car and claims to be you.

The second situation is more common, though. It often involves a driver who gets into their car to sleep off the effects of alcohol or drugs. If a police officer makes a DUI arrest in this case, it would be an unlawful arrest because the officer has to witness you actually driving your vehicle.

No probable cause for the traffic stop

Police officers need to have probable cause to initiate a traffic stop. Examples would be

• swerving,
• unsafe lane changes,
• speeding, or
• other violations of local-, state-, or federal law.

Pulling you over for no reason – or due to racial profiling – would violate your rights. When officers violate your rights and then find evidence of a crime, that evidence can be suppressed and kept out of court. This also applies to DMV hearings.

A skilled criminal defense attorney can show that there was no probable cause to support a particular traffic stop.

No refusal notification

Whenever you refuse to submit to a chemical BAC test, the police officer must tell you of the consequences of doing so (which includes a one-year license suspension). This notification

1. is in writing, and
2. the officer has to read it to you, word for word.

If the officer does not do this, the hearing officer may set aside the license suspension.

Your BAC was legal

Driving impaired with a legal BAC of below 0.08% can often be the basis for getting the license suspension set aside.

You did not refuse chemical BAC test

Refusing a chemical BAC test leads to an automatic license suspension. However, you actually have to refuse the chemical test, first.

There is no refusal of the chemical test when:

• you ask questions about the test that the officer misconstrues as a refusal,
• you refuse field sobriety tests, which the officer wrongly believes are chemical BAC tests, or
• your breath samples were insufficient for the breathalyzer.

How long can the license suspension be?

If you lose your DMV hearing, the license suspension will go into effect. In California, the duration of the suspension before you can get the license back depends on your criminal record:

In the last 10 years, this is your…	Suspension duration
First DUI offense	6 to 10 months
Second DUI offense	2 years
Third DUI offense	3 years
Fourth or subsequent DUI offense	4 years

The duration may be longer

• if the DUI caused an injury¹ or
• if you refused a chemical breath or blood test.²

Additionally, underage or commercial drivers have to abide by lower legal limits and may face additional consequences, even if it was a first misdemeanor offense and you otherwise have a clean driving record and no prior license revocations.

However, if you had your license suspended, you may be eligible for:

• an ignition interlock device, or IID, or
• a restricted license that lets you drive to work or school.

Additional resources

For more information, refer to these articles by the California DMV.

• Administrative Hearings
• Driver Safety Administrative Hearing Process
• Negligent Operator Treatment System Hearings
• Subpoenas for Hearings
• Driver Safety Offices

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