What to Expect at a DMV Hearing

Posted on December 3, 2021

At the DMV hearing, the hearing officer will listen to evidence of guilt presented by the arresting officer. He or she will then hear exculpatory evidence from the defendant. The defendant can testify, and can cross-examine other witnesses and the arresting officer. All of this happens in a DMV office, or even over the phone.

What happens at the DMV DUI hearing?

The DMV hearing is where an officer for the agency will hear evidence of an alleged case of driving under the influence (DUI) and decide whether to suspend the defendant’s driver’s license. The hearing is independent from the criminal case. Drivers have a right to an attorney at the hearing, but only at the driver’s expense.

The hearing is not held in a courtroom. Instead, it happens at a local office for the state’s Department of Motor Vehicles (DMV). It may even happen over the phone.

The person conducting the hearing is not a judge. Instead, he or she is an employee of the DMV. In most cases, the hearing officer will have special training to conduct the hearing, but will not have a law degree. That special training, however, is provided by the DMV.

At the hearing, the arresting officer will testify about what happened. He or she will often file the police report as evidence. This testimony will generally include information about:

• why the traffic stop was initiated, in the first place,
• how the driver looked, or how he or she interacted with the officer,
• how the driver performed on field sobriety tests (FSTs),
• whether the driver refused a chemical breath test or breathalyzer, and
• if the driver took a breathalyzer or gave a blood or urine test, the resulting blood alcohol content (BAC) reading.

The defendant, usually through his or her criminal defense attorney, has the right to cross-examine the arresting officer.

Once law enforcement has presented its case, the driver can present his or her side of the story. In addition to the right to cross-examine the police officer, drivers can also:

• challenge other evidence, like the police report,
• subpoena and present other witnesses, and
• testify on their own behalf.

Depending on the circumstances of the case, the driver may have a valid defense. Some of the most common include:

• the defendant was not driving the vehicle,
• the officer did not have sufficient probable cause to initiate the traffic stop,
• the officer did not conduct the required 15-minute observation period, and
• the officer failed to advise the driver of the repercussions of refusing a breathalyzer.

After hearing the evidence, the DMV hearing officer will decide whether a preponderance of the evidence shows that the driver was under the influence. This burden of proof is different from the criminal DUI case, and is very important. In criminal cases, the prosecutor has to prove their case beyond a reasonable doubt. In DMV hearings, they only have to prove it by a preponderance of the evidence. This is satisfied if the evidence shows that it was more likely than not that the driver was under the influence.

This lower burden of proof means that it is easier for law enforcement to win. Getting the legal advice of a skilled DUI defense lawyer from a local law office is essential for beating DUI charges at this stage in the process.

What happens if I win the DMV hearing?

Drivers who win their DMV hearing will recover their driving privileges. They can also use the victory as leverage in their criminal DUI case.

If law enforcement fails to meet its burden of proof, the DMV hearing officer will set aside the action. This means the pending license suspension will be tossed out. The driver will keep his or her driving privileges.

The DMV hearing is separate from the criminal DUI case. However, if the driver wins at the DMV hearing, it is often a very strong sign that the prosecutor’s criminal case is flawed or weak. It did not even overcome the lower “preponderance of the evidence” burden of proof.

However, the repercussions for the criminal case are neither automatic nor guaranteed. Many prosecutors will react to the loss at the DMV hearing by offering a plea deal or dropping the case, entirely. However, some others will press forward. If they do, and the criminal case goes to trial, and the driver ends up being convicted, the judge may suspend or revoke the driver’s license, anyway.

Can my driver’s license be suspended if I lose?

Yes, if you lose the DMV hearing, then your driver’s license will be suspended. The pending suspension from the arrest goes into effect. However, the DMV is limited to this punishment: The DMV cannot impose fines or send the driver to jail.

The length of the license suspension will depend on the circumstances of the case. It will also depend on whether the driver has any DUI or DWI convictions, in their past. Generally, for first-time offenders, the suspension may be up to one year.

Drivers who have lost at the DMV hearing do have a right to appeal the outcome, though. Depending on the state, an appeal can take the case to court, or can trigger an internal administrative review.

Additionally, the criminal DUI case will still be pending. This is where a judge can sentence the defendant to other penalties, like:

• jail,
• fines,
• alcohol rehab,
• counseling, and
• community service.

However, losing a DMV hearing is not all bad. In many cases, the evidence that comes out during the DMV hearing makes it clear that the prosecutor’s case is not airtight. For example, the police officer’s testimony may reveal that their reason for the traffic stop may not amount to probable cause. While this may have been enough to overcome the lower burden of proof in the DMV hearing, the prosecutor may see that it will likely fail in criminal court. He or she may offer a better plea deal, as a result.

How does it work in California?

In California, the DMV hearing is conducted in much the same way as in other states. The license suspension hearing is formally called a Driver Safety Administrative Per Se, or APS, hearing. These administrative hearings are held at a local California DMV safety branch office.

Drivers in California who have been arrested for drunk driving will have their driver’s license confiscated. They will be given a pink Notice of Suspension. This Notice serves as the driver’s temporary license for 30 days.

The Notice also informs the driver that he or she is entitled to the DMV hearing. However, the driver has to request this hearing within 10 days of the arrest. If no request is made, the Notice of Suspension will expire after 30 days and the driver’s license will automatically be suspended.

In California, the license suspension depends on the driver’s prior record and the incident¹:

However, many drivers may be able to shorten the suspension by installing an ignition interlock device (IID). They may also be eligible for a restricted license.

Drivers should strongly consider establishing an attorney-client relationship with a DUI attorney from a reputable law firm and getting their legal help before their DMV hearing.

About the Author

Neil Shouse

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.