How to win a DMV DUI hearing
On this page you will find:-
- How to win a DMV DUI hearing
- If you win your DMV hearing
- If you lose your DMV hearing
- Restricted License
- Refusal Cases
How is the DMV hearing different from the court trial for DUI?
The DMV hearing is an administrative proceeding regarding your driving privilege and the circumstances surrounding the arrest, not whether you are innocent or guilty of a criminal act.”
10 Days to request a DMV Hearing for DUI
You only have 10 days after the date of your arrest to request a DMV Hearing for DUI. See DUI Task 1: Request a DMV Hearing.
Who represents you at your DMV Hearing?
In your DMV DUI hearing your choice is to:-
- Represent yourself
- Or hire a private lawyer to assist you.
Your DMV DUI Hearing is an administrative hearing with the DMV, not a court hearing. Your case is assigned to a DMV Hearing Officer. You can go by yourself or optionally with your attorney. The Public Defender, if you have one, will only assist you with your criminal court case, so he or she will not represent or assist you with the DMV DUI hearing. Normally the arresting police officer will not come to the DMV hearing unless you or the DMV subpoena him.
DMV Hearing and your drivers’ license
If you win your DMV hearing, the DMV will not take any action against your license.
Remember you face two DUI hurdles – your DMV DUI Hearing and your court case. Even if you win your DMV hearing, be aware that the court still has the power to restrict, suspend or revoke your license depending on your case and if you have prior DUI’s. This is because the court and DMV have separate and independent powers to suspend your driver’s license.
California DMV – 3 Legal Issues
In order to win your DMV DUI Hearing, and have the DMV not take any action against your license, you must prevail on one of the following 3 issues:-
In a DMV DUI hearing, the DMV is only concerned with determining three legal issues. Unfortunately your need to drive for work is not considered by the DMV.
If you took a blood or breath test, the three legal issues in your DMV DUI Hearing are :-
- Did the Peace Officer have reasonable cause to believe you were driving a motor vehicle in violation of Vehicle Code Section 23140, VC 23152, or VC 23153?
- Were you placed under lawful arrest?
- Were you driving a motor vehicle when you had 0.08% or more by weight of alcohol in your blood?
Other ways to win a DMV DUI hearing
Other sub-issues in a DMV DUI hearing in california
If you can prevail on any of the following sub-issues, you can possibly win your DMV DUI hearing.
- Were you administered a test within 3 hours of driving?
- Did the officer continuously observe you for 15 minutes before administering your breath test at the police station pursuant to Title 17 of the California regulations which outline the proper breath testing procedures? This 15 minute observation is to make sure you did not ingest alcoholic beverages or other fluids, regurgitate, vomit, eat, or smoke during that 15 minute period.
- Was the officer properly trained and qualified to administer the breath test?
- Was the DS 367 Officers’ statement properly sworn and filled out?
- Was the official duty presumption rebutted, i.e. is there evidence that the officer did not properly perform his official duties?
The power of the court to suspend your license
If you win your hearing, the DMV will not take any action against your license. However, you must be aware that the court still has the power to restrict, suspend or revoke your license depending on your case and if you have prior DUI’s.
The terrible thing about a DUI is the court and DMV have separate and independent powers over your license. This can be very confusing; so be aware of this fact in determining what can happen to your license.
Reality of a DMV DUI Hearing
It is very hard to win a DMV DUI Hearing because, frankly, the DMV does not want you to win. The DMV will even subpoena police officers to a DMV DUI hearing to fix any mistakes the officers have made so that the DMV can enforce a suspension against your license. Normally the officer will not come to the DMV hearing unless you or the DMV subpoena him. In a DMV DUI hearing you are basically presumed guilty and the odds are stacked against you.
To win a DMV DUI Hearing you usually must have one of the following examples:
- The police did not follow proper procedure with the breath or blood tests
- You present convincing evidence the officer had no right to pull you over
- You present proof that you were under .08 at the time of driving
- Significant mistakes made in the Officer’s Statement DMV form and police report
- Insufficient or improper DMV evidence
In 2007, there were 186,961 DMV Hearings held in California for people over 21 years of age who were arrested for DUI’s and only 16,860 (that’s 9%) people won their DMV hearing.
Seek DMV departmental review or Sue the DMV
If you lose your DMV Hearing, you have the right to seek DMV departmental review of the decision and you can also sue the DMV in a civil court. If you win a trial in court, the DMV must give you your license back.
If you lose your DMV DUI Hearing and there was not a refusal, you face the following license suspensions:
First Time DUI
The DMV will suspend your license for a minimum of one month. After this one month suspension of your license, if you:-
- Enroll in an alcohol class
- File proof of insurance (SR-22, proof of financial responsibility)
- And pay a DMV license reissue fee of $125
… then you are eligible to install an Ignition Interlock Device (IID) and obtain an IID-restricted driver license with unlimited driving privileges for the next four to five months (possibly longer depending on what happens in court). This applies to convictions in the four IID pilot counties of Los Angeles, Alameda, Sacramento and Tulare which occurred on or after July 1, 2010.
In summary, on a first time DUI you cannot drive for 30 days if you lose your DMV DUI hearing, but after 30 days you can get an IID-restricted license with unlimited driving privileges.
Second Time DUI within 10 years
– the DMV will suspend your license for two years if you lose your DMV hearing. NO DRIVING AT ALL IS ALLOWED FOR THE FIRST 90 DAYS. YOU ARE NOT EVEN ALLOWED TO DRIVE TO WORK.
People cannot believe the DMV will not allow a restricted license during this 90-day period but the law is brutal and merciless on second DUIs and your license will be suspended for two years – WITH NO DRIVING ALLOWED AT ALL for 90 DAYS by the DMV for a second time DUI.
After 90 days of no driving at all and installation of an ignition interlock device, you might be eligible for an IID-restricted license which would allow you to drive for work-related reasons. The DMV will notify you if and when you are eligible to apply for a restricted license.
Note: The 90-day no-driving period applies if you were convicted of driving under the influence of alcohol only. If you were convicted of driving under the influence of any drug or the combined influence of any drug and an alcoholic beverage, the period of no driving at all before you might be eligible for a restricted license is 12 months.
Third Time DUI within 10 years
– the DMV and the Court will attempt to revoke your license for three years so you cannot drive at all. After six months of no driving at all, you might be eligible for an IID-restricted license which would allow you to drive for work-related reasons, subject to certain conditions including, among other things:-
- Proof of enrollment in an 18-month or 30-month DUI Education program
- Installation of an ignition interlock device.
Note: The 6-month no-driving period applies if you were convicted of driving under the influence of alcohol only. If you were convicted of driving under the influence of any drug or the combined influence of any drug and an alcoholic beverage, the period of no driving at all before you might be eligible for a restricted license is 12 months.
The DMV will notify you if and when you are eligible to apply for an IID-restricted license.
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