What To Expect At California DMV Hearing After DUI Arrest

By Law Offices | Felicia Yates & Associates

The State of California enacted the Administrative Per Se Law which is designed to punish an individual - by temporarily suspending their driver's license - if they have been deemed by the California DMV to have operated a motor vehicle with a Blood Alcohol Content (BAC) of 0.08% or higher.

It is worth noting, that any DMV administrative action is independent of any penalties imposed by a Superior Court for a DUI conviction.  While some Due Process is provided to a Defendant (i.e. – the issuance of a 30-day Temporary License on pink paper), you are not given many of the typical Constitutional protections you would find in a Court of Law.  For example, when you are facing charges in a regular Court of Law as a criminal defendant, there is an automatic presumption of innocence until proven guilty - at a DMV hearing following a DUI arrest it is just the opposite - there is an automatic presumption of guilt until proven innocent.  In other words, the Burden of Proof shifts to the driver defendant to prove to the California DMV that the evidence they have against the driver is unreliable, inaccurate, or otherwise inadmissible.  

This alternative DMV process is known as an Administrative Per Se hearing - or Admin Per Se hearing.  These hearings typically take place telephonically, and can involve testimony (written or verbal) from yourself as well as the citing law enforcement officer(s).  If you have retained an attorney, he or she may represent you, and the DMV Hearing Officer would be conducting the proceedings - again, usually via a previously scheduled teleconference.  You would not be entitled to have an attorney appointed to you by the DMV.  In order to prevail at an Admin Per Se hearing, you will need to have complete knowledge of the California Vehicle Code, California Evidence Code, California Penal Code, and DMV Administrative laws.  There is no middle ground.  You will not have an opportunity to plea bargain or negotiate your charge to a lesser offense - your driver's license will either be suspended, or it will not be suspended.  However, you will have an opportunity to seek discovery (information that the law enforcement agency or DMV possesses about your charges), present your own oral or written evidence to support your innocence, and to subpoena witnesses (like a passenger in your vehicle, or the law enforcement officer) to provide testimony at the DMV hearing.

One thing to be acutely aware of when facing a DMV Admin Per Se proceeding, is that the DMV does not factor in your need to drive a motor vehicle (e.g. – for employment or education purposes).  The only areas a DMV Hearing Officer cares about is as follows: 

For Defendants who took and completed a chemical test pursuant to California’s Implied Consent Law, they would generally be facing these issues…

1. Was there probable cause (a reasonable belief) to believe you were driving a motor vehicle in violation of California Vehicle Code sections 23152, 23153, or 23154?
2. Were you lawfully detained while on DUI probation, or lawfully arrested?
3. Were you driving a motor vehicle when you had a 0.08% or higher Blood Alcohol Content (BAC) level?

1. If you were driving a commercial vehicle, the level would drop to a 0.04% BAC
2. If you were on DUI Probation, then the level would drop even further, to a 0.01% BAC

For Defendants who refused or failed to complete a chemical test (breath or blood), they would generally be facing these issues:

1. Was there probable cause (a reasonable belief) to believe you were driving a motor vehicle in violation of California Vehicle Code sections 23152, 23153, or 23154?
2. Were you lawfully detained while on DUI probation, or lawfully arrested?
3. Were you told by the citing officer that your driving privilege would be suspended or revoked for 1, 2, or 3 years if you refused to submit to or failed to complete a chemical test?  (Note: the actual length of time would depend upon your 10-year driving record)
4. Did you actually refuse to submit to, or fail to complete a chemical test, or a preliminary alcohol screening (PAS) test while on DUI probation, after being requested to do so by a peace officer?
   

The DMV Hearing Officer essentially has to determine whether it is “more likely than not” - based upon a preponderance of the evidence - that you were intoxicated (with a BAC of 0.08% or higher) during the time you were operating a motor vehicle.  This is a much lower standard than the standard set forth in a California Superior Court - which is proof beyond a reasonable doubt.  

 

At the conclusion of the hearing process, the DMV Hearing Officer (who is neither a judge nor an attorney at law) will render a decision in writing which will result in your license suspension either being Sustained (Upheld), or being Set Aside (Dismissed).  If this is your first DUI, the DMV can order a license suspension period of up to four (4) months.  If this is your second DUI, the DMV can order a license suspension period of up to one (1) year, or 365 days. 

Should your license suspension be Sustained, you have the option to Appeal, or to request a Restricted Non-Commercial Driver’s License after serving a thirty (30) day “hard suspension” (not operating a motor vehicle for any reason whatsoever). 

To be eligible for such a Restricted Non-Commercial License, you must meet the following criteria:

• This is your first offense.
• You completed a chemical test.
• You were 21 years of age or older (pursuant to CVC section 13353.7).
• Your driving privilege is not suspended or revoked for some other reason.
• If approved, then you will be issued a “to/from/during course of employment and DUI program restriction” license, which will be valid for five (5) months from the issuance date.  Since a first time offender receives a suspension period of only four (4) months, this restricted license would adequately cover you until the conclusion of your original suspension period. 

To be eligible for a Critical Need License Restriction for drivers Under the Age of 21 (see CVC section 13353.8), you must meet the following criteria:

• You completed a PAS or chemical test with a BAC level of 0.01% or more.
• You have a critical need to drive (a specific critical need condition exists, and all other transportation is inadequate).
• Only first offenders who completed a PAS or other chemical test are eligible to apply for a Critical Need restricted driver’s license.
• You must show the DMV that public transportation in your area is not sufficient to accomplish your transportation to and from work, to and from school, or you happen to be the primary means of transportation for a family member to medical appointments.
• If approved, the DMV will issue a restricted license in lieu of a one-year full suspension, based on a “critical need” to drive.

To actually apply for a Restricted Non-Commercial License, you must do the following, and wait to apply until after the thirty (30) day “hard suspension” has run its course:

• Enroll in a licensed DUI First Offender program (notify the program provider that you intend to apply for a restricted driver's license).
• Ask the program provider to file a Proof of Enrollment Certificate (DL 107) in a licensed DUI First Offender program with the DMV (pursuant to CVC section 23538(b)).
• File proof of financial responsibility (i.e., this is known as an “SR 22” or Insurance Proof Certificate from a bona-fide auto insurer).
• Pay a $125 reissuance fee.

To actually apply for a Critical Need License Restriction, you must meet the following criteria, and wait to apply until after the thirty (30) day “hard suspension” has run its course:

• Pay a $100 reissue fee to DMV.
• File proof of financial responsibility (SR 22). 
• Maintain proof of financial responsibility for three years.
  

Lastly, there is a relatively new Statewide IID (Ignition Interlock Device) Pilot Program which runs from January 1, 2019 through December 31, 2025, and allows Admin Per Se violators that submitted to a chemical test, to immediately obtain an IID-restricted driver license.  An IID is wired to your vehicle’s ignition and requires your breath sample before the engine can start.  If alcohol is detected, the engine will simply not start.  

Since everyone's case is unique to that individual and the specific circumstances, you should consult with a competent DUI & DMV hearing attorney to determine your best course of action.  Our office has expertise in this area of the law, and we encourage you to reach out for a free consultation.  Attorney Felicia Yates has been practicing law for over 35 years in California and may be contacted at (702) 817-4661, via e-mail at attorneyfeliciayates@gmail.com, or via website at https://www.attyfeliciayates.com.