1. Show that the officer lacked probable cause for the traffic stop
Police officers must have probable cause that a driver was driving while intoxicated to detain the motorist for the offense.
This means a person arrested for the crime can win at a DMV hearing if the party’s DUI lawyer shows that the arresting officer did not have probable cause.
A DUI attorney can argue any number of reasons why an officer lacked probable cause for an arrest. For example, the lawyer could establish a DUI defense by saying that:
the driver obeyed all traffic laws while driving, and
police pulled the motorist over due to racial profiling.
2. Show that you weren’t advised of the consequences of refusing a blood or breath test
If a person refuses to submit to a chemical test or breath test (via a breathalyzer), then the officer must advise the driver that his/her driver’s license will be automatically suspended for one year.
Further, this admonition is in writing and the officer is supposed to read it word for word. If the officer fails to do this, the person faced with the DUI arrest could win at the DMV hearing.
Note that officers make numerous drunk driving arrests and sometimes:
forget to advise people about the consequences of a refusal,
deliberately chose not to give proper advice, or
recite their own interpretation of the admonition instead of reading it.
Any of these actions could lead a DMV hearing officer to set aside a license suspension.
3. Show that your BAC was under .08%
Most jurisdictions say that the DMV can only suspend a person’s driving privileges in a DUI case if the driver was arrested for the crime and either:
had a BAC of .08% or greater, or
refused a blood test or breath test.
Motorists arrested for the offense, then, can win at a DMV hearing by showing their blood alcohol concentration test results were under .08%.
A DUI criminal case is separate from the DMV case.
4. Show that you were not actually “driving” a car
Drivers will prevail at a DMV hearing if they, or their defense lawyers, show that they were not driving at the time the police made the arrest.
If the police did not personally observe an arrestee driving, then a hearing officer should set aside a license suspension provided that:
the DMV does not subpoena any witnesses to testify that the arrestee was driving, or
there is no other evidence to show that the person was driving.
Consider, for example, a person that gets behind the wheel of a car while drunk but decides to “sleep it off” rather than drive. Here, the person is not guilty of driving under the influence because he/she was not technically driving. As a result, the DMV should not suspend the person’s license.
5. Show that you did agree to a blood or breath test
Drivers will win at a DMV hearing if they show that they complied with authorities and gave a blood or breath test. This is provided that the test results show that the drivers were not intoxicated.
For example, drivers can show that they:
submitted to a chemical test,
tried to “blow” but their breath samples were not sufficient,
were not offered a blood draw as an alternative to a breath test, or
asked questions about the tests and the police just assumed that the questions were not serious, and they interpreted them as a refusal.
Any of these showings should lead to a hearing officer setting aside a suspension.
What is the law in California?
California law says that the state’s Department of Motor Vehicles can initiate the suspension of driving privileges if someone was arrested for DUI and:
A motorist does have the right to challenge this suspension by requesting a DMV administrative hearing. The driver, though, must make this request within 10 days from the date of the arrest.[iii]
If a DMV hearing takes place, the meeting is conducted at a DMV office and is run by a “hearing officer.” This officer is a DMV employee that typically has no legal background.[iv]
A driver attending a hearing can challenge a suspension by raising any of the arguments discussed above.
Note, though, that the Department can go ahead and suspend a person’s license if it proves that:
the DUI stop and the arrest for the crime were legal, and
the driver operated his/her car with a BAC of.08% or greater, or
the driver refused a blood or breath test.
Unlike at a trial for a DUI, the Department does not have to prove these issues “beyond a reasonable doubt.” The standard of proof at these hearings is a lesser standard known as “by a preponderance of the evidence.” The DMV satisfies this standard if it shows that the above issues are more likely than not to be true.
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.