Organize your evidence and submit declaration on time.
Issue subpoenas and expect to enforce them.
Review the DMV’s evidence.
Write down your arguments.
At the conclusion of the hearing, the hearing officer can:
decide to suspend your driver’s license based on the alleged DUI (known as “sustaining the action”), or
reverse the suspension of your driver’s license for the alleged DUI (known as “setting aside the action”).
If the officer sets aside the action, it is equivalent to receiving a not guilty verdict.
A DMV DUI hearing is an administrative hearing held at the Department of Motor Vehicle office for the sole purpose of determining whether or not your driver’s license should be suspended following a DUI arrest. The hearing is a separate process from the criminal court proceeding for the DUI charge.
1. Finalize your legal defense
You have the right to raise a legal defense/disclaimer at a DMV hearing.1 A hearing officer will issue a driver’s license suspension if the officer finds that:
Effective defenses, therefore, are ones that refute the above findings. Other common defenses include showing that:
you were not driving a motor vehicle,
the arresting police officer did not have probable cause for an arrest,
the breath testing instrument used in the case was not calibrated or was not working properly, and/or
there were fatal flaws with the arresting officer’s paperwork.
2. Organize your evidence and submit declarations on time
Once you determine the best defense to raise at the hearing, you should then gather and organize any evidence that supports that defense.2 A few common forms of evidence include:
As to witness statements, you can either submit written witness statements (“declarations”) into evidence, or you can have a witness attend the hearing process and present live testimony.
If you go the declaration route, make sure you send the declaration to the Department of Motor Vehicles (DMV) at least 10 days prior to the hearing, along with a notification stating that the witness will not be physically present unless the DMV specifically requests a cross-examination.
Criminal trials are completely separate procedures from DMV trials, where the state has a much lower burden of proof.
3. Issue subpoenas and expect to enforce them
You should subpoena all your witnesses who do not give declarations, even the ones who are “friendly” and claim they will come on their own accord. For unexpected reasons they may change their mind about wanting to testify, and being subpoenaed will pressure them to show up.
Issuing subpoenas is a technical process with strict rules regarding service. Your criminal defense attorney can serve – or hire someone to serve – your subpoenas for you.
4. Review the DMV’s evidence
At the hearing, you are informed of the legal grounds for the action and have the opportunity to review and challenge the DMV’s evidence.3
The DMV must provide you with any evidence it intends to present at the hearing before the hearing begins. This evidence is normally the police report of the arresting officer.
Note that a DMV hearing is a separate and distinct matter from a court proceeding for an alleged DUI charge.
If you are arrested for DUI, you will face two separate legal proceedings:
a court proceeding for the DWI in criminal court, and
a DMV DUI hearing.
As stated above, the DMV hearing can result in a suspended license/revocation of your driving privileges.
In court, however, a judge or jury determines whether or not you are actually guilty of DUI.
The evidence that the DMV presents at a DMV hearing is typically the same evidence that a prosecutor presents in a criminal case.
5. Write down your arguments
You are allowed to attend a hearing with evidence that supports your case and any notes to help present that evidence.
In fact, you are encouraged to prepare a script prior to your hearing date.
You should put any words that you want to say onto paper. This way, in the event you get nervous, you can still say what is necessary to win the hearing.
Although DMV hearings are hard to win, they are nearly always worth doing.
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.