The DMV Hearing: California DUI Arrest

When someone is arrested for DUI in California, the law requires the arresting officer to confiscate the driver's California driver's license and give them a temporary paper license. This triggers a 10-day window for the arrestee, or the arrestee's DUI lawyer, to call the DMV and request a DMV hearing. If no DMV hearing is requested by the driver or their DUI attorney, then the DMV will automatically impose the appropriate driver's license suspension. If a DMV hearing is requested, then the DMV will mail a new paper temporary license to the driver, allowing them to continue driving until and unless they lose the DMV hearing.



The DMV hearing is usually scheduled for around 45 days after the request for the DMV hearing is made. Thus, a driver can at least buy some more time to driver. Moreover, it is typical for the driver's DUI defense lawyer to "continue" the hearing, or set it another month or two later. Your DUI attorney will need this time to subpoena crucial evidence in the case, such as the calibration and maintenance logs for any breath-testing device as well as the audio/video in the case. So the DMV hearing usually isn't completed for about three months from the date of the request. Again, even if a driver is likely to lose the hearing they can have some flexibility for when the suspension begins.

At the DMV hearing, the DMV must prove its case against the driver by a preponderance of the evidence. Typically, the DMV must prove that the driver was lawfully stopped, that there was sufficient probable cause to arrest the driver, and that the driver had a blood-alcohol level of 0.08% at the time of driving. Since this is a civil matter, (the criminal case is handled in court), the rules of evidence are lax. In fact, the DMV hearing can even be conducted over the telephone.

Although the low evidentiary threshold and the lax rules of evidence make DMV hearings very difficult to win, they can be won. California law requires that breath and blood tests be conducted in a very specific manner in order to avoid mistakes. If the officer makes a mistake, the law requires the test result to be thrown out. For example, the officer must continuously observe the driver for 15 minutes before any breath test to make sure the driver doesn't burp. A single burp can transport minute amounts of alcohol from the stomach to the mouth. This will give a false reading. Also, the cop is supposed to take two breath samples, at least two minutes apart, to confirm the result. If this is not done correctly, the results must be suppressed.



Also, at the DMV hearing, the DMV must prove that there was legal grounds for the stop in the first place. If there was not sufficient "reasonable suspicion" for the initial detention, then all evidence that flowed from the illegal stop must be suppressed. A "rising defense" can also be raised at the DMV. A breath or blood test given long after the time of driving does NOT tell us what the driver's blood-alcohol was at the time of driving. Blood alcohol levels continuously change in a person's body. So a driver may be at a 0.06% at the time of driving but be much higher just 30 minutes later.

If you, or your DUI defense attorney, don't request a DMV hearing within ten days of the arrest, then you give up your right to challenge any suspension. Even if you or your lawyer later learn that the test was not done correctly, once you give up your right to a DMV hearing you can no longer challenge the suspension. Even one  based on faulty evidence.



If you would like more information about the DMV hearing call The Law Offices of EJ Stopyro at (949) 559-5500 today. We offer a free and confidential telephonic consultation with an experienced DUI attorney.