California’s DUI laws can be complex and confusing. In this section, our attorneys break down the rules and explain the process.
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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:
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.
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:
People can prevail at a DMV hearing by presenting favorable evidence to the DMV hearing officer. This includes evidence that shows:
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:
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:
No. If people are arrested for DUI in California, they will face two separate legal proceedings. These are:
What is at stake in the California DUI court process are criminal penalties, such as:
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:
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.