DMV Refusal Hearing – What Is It and How Can I Win?

Posted on February 28, 2022

A DMV refusal hearing is an administrative hearing conducted by the Department of Motor Vehicles after a person is arrested for DUI and refuses to submit to a chemical test. The purpose of the hearing is for you to try to prevent the DMV from suspending your driver’s license. If you do not request a hearing within 10 days from the date of the arrest, the DMV will typically suspend your license for at least one year.

A few ways people can win a hearing, and thereby keep their driving privileges, are by showing that:

• they were not driving or in control of a vehicle,
• the arresting police officer did not have probable cause to stop them for DUI, and
• law enforcement did not properly advise them of the consequences of refusing to submit to a chemical breath test or blood test.

Note that California’s implied consent law, codified in California Vehicle Code 23612, requires any motorist lawfully arrested for DUI to submit to a breath or blood test to determine his/her blood alcohol concentration (BAC).

Please note that this law only applies to breath or blood tests after a lawful DUI arrest. This means that a driver can still refuse to take a preliminary alcohol screening (PAS) breath test before an arrest takes place.

1. What is a DMV refusal hearing?

After people are arrested for DUI, they cannot refuse the chemical testing of their blood or breath without consequences, under California’s “implied consent” law. One of these consequences is the suspension of the person’s driving privileges by the California DMV.¹

A DMV refusal hearing is an administrative per se hearing, conducted by the DMV, where a person who refused a chemical test can challenge the suspension of his/her driver’s license.² The hearing is sometimes referred to as an “APS hearing,” or an “admin per se hearing.”

It bears repeating that, in order to try and avoid license suspension, arrestees must personally request a DMV hearing within 10 days from the date of their arrest. If they fail to do so, they lose their right to a hearing and the DMV will automatically suspend their driving privileges.³

If a person requests a hearing, the suspension of his/her driver’s license is delayed pending the outcome of the hearing. Further, if drivers win their hearing, they may be able to retain their driving privileges.

Note that a chemical test refusal hearing is held in a DMV driver safety office (and not a criminal court) before a DMV hearing officer. The hearing officer is not a judge and often has no formal legal training.

Parties that request a hearing have certain legal rights that the DMV must honor. These include a party’s rights to:

• representation by a criminal defense attorney or DUI attorney,
• review evidence presented by the DMV,
• present evidence before the DMV,
• subpoena and present witnesses,
• testify on his/her own behalf, and
• appeal an adverse decision.⁴

2. How does a party win a DMV refusal hearing?

People can prevail at a DMV hearing by presenting favorable evidence to the DMV hearing officer. This includes evidence that shows:

• a person was stopped for DUI without probable cause,
• a party was not driving or in control of a vehicle,
• a party was arrested at an illegal DUI checkpoint,
• the arresting officer did not properly advise a person of the consequences of refusing to submit to a chemical breath or blood test,
• a party did not actually refuse to submit to a chemical test, and
• there were fatal flaws with the arresting officer’s paperwork.

3. What happens if I win/lose my hearing?

If motorists win their refusal hearing, hearing officers set aside the actions and parties retain their driving privileges.

If a person loses their DMV hearing, the DMV will suspend that party’s driver’s license.⁵

If a first offense of driving under the influence of alcohol, the DMV will suspend a license for one year.⁶ After the first month of suspension, a party may be able to have the suspension converted into a restricted license that allows him/her to drive to and from:

• work, and/or
• a California DUI school.

If a party loses a hearing and has a prior DUI, the DMV can suspend that person’s license for two years.⁷

Note that if a party loses a hearing, the person has the right to appeal the decision. Specifically, the party can:

• ask the DMV to conduct a departmental review of the decision, or
• file an appeal directly with the California Superior Court.⁸

4. Is a DMV refusal hearing the same thing as a DUI court case?

No. If people are arrested for DUI in California, they will face two separate legal proceedings. These are:

1. a criminal charge for DUI in California courts, and
2. an admin per se hearing at the DMV to determine what will happen to their driver’s license.

What is at stake in the California DUI court process are criminal penalties, such as:

• fines,
• potential jail time,
• completion of a California DUI school, and
• a variety of additional DUI probation conditions.

By contrast, the DMV license suspension hearing deals only with a person’s driving privileges. The DMV cannot send a person to jail or fine them, but they can suspend or revoke a party’s driver’s license.

Note that if people refuse a chemical test following a DUI arrest, they could face enhanced penalties if found guilty of DUI in their criminal court proceedings. The enhanced DUI chemical test refusal penalties are:

• for a first DUI offense, an additional 48 hours in county jail, and a minimum nine-month California DUI school (in lieu of the three-month program for first-time DUIs that don’t involve refusals),
• for a second DUI offense within ten years, an additional 96 hours in county jail,
• for a third DUI offense within ten years, an additional 10 days in county jail, and
• for a fourth or subsequent DUI offense within ten years, an additional 18 days in county jail.

---