After an arrest for DUI, the state's Department of Motor Vehicles, abbreviated as DMV, holds a DMV hearing to initiate the suspension of your driver's license. For example, the DMV could suspend your license for operating a vehicle with a blood alcohol concentration of 0.08% or more. You could also face a driver's license suspension for refusing to submit to a DUI blood or breath test or for having a .01 or higher BAC while being under the age of 21. There are other possible violations involving commercial drivers. The DMV's suspension of your driver's license is commonly known as an "administrative per se" license suspension. To avoid an automatic license suspension 30 days after a DUI arrest, you must request a DMV hearing within ten days of your arrest. At the hearing, you can present your case and explain why the DMV should not suspend your license. If you face a possible suspension of your driver's license in Pasadena, San Gabriel or Los Angeles area, Attorney Ann Gottesman is ready to fight for your driver’s license and guide you through the (often confusing) DMV hearing process.
“I know how important a driver’s license is to a person’s employment and life! I will do everything I can to achieve a positive result at your DMV hearing. In some cases, the administrative per se (“APS”) hearing can be technically complex and expert toxicologist testimony may be needed. I will present to the Department the best evidence we have in an attempt to overcome the legal presumption that is usually applied against the driver.” --Ann
The DMV Hearing
The DMV administrative hearing occurs at the DMV office. In-person hearings used to be the norm, but since COVID, the DMV currently allows only telephonic hearings. The sole purpose of the hearing is to decide whether your driver's license should be suspended following a DUI arrest. Upon a DUI arrest, if there is evidence you were driving with a .08 or more BAC, were underage, driving a commercial vehicle with a .04 % BAC or more, or refused a chemical test, the officer will confiscate your license and give you a Notice of Suspension. The Notice of Suspension serves as your driver's temporary license for one month. This notice also informs you that you have a right to a DMV hearing, during which you can contest the suspension of your driver's license. However, you can only exercise your right to a DMV hearing if you request it within ten calendar days of your DUI arrest.
The DMV will automatically suspend your license if you fail to request a hearing within ten days (unless the test results show you were driving under the legal limit). The suspension will occur at the end of 30 days if you don’t request a hearing. After the license suspension begins, you could reinstate your license (if you qualify) after the following:
- Enroll in a DUI School.
- Submit an SR-22 insurance form.
- Install an ignition interlock device.
- Pay a reinstatement fee of $125.
If you request the DMV hearing, the Department of Motor Vehicles will delay your license suspension, awaiting the results of your hearing.
EXAMPLES OF DEFENSES TO PRESENT AT THE ADMINISTRATIVE PER SE DMB HEARING AFTER A DUI ARREST
- Probable Cause to Arrest You
The law requires that the police have probable cause to believe that you are driving under the influence before they can effectuate a lawful arrest. Therefore, you can win at the DMV hearing if you prove that the police had no reasonable cause to stop your vehicle, or they did not have sufficient evidence to rise to the level of probable cause to arrest. With the help of your attorney, you may be able highlight several reasons to show that the police had no probable cause to arrest you:
- While you were driving, you complied with all the traffic rules.
- A bodycam or dashcam video contradicts the officer’s claims in the report and/or sworn testimony.
- The police stopped your vehicle on a “hunch” without reasonable suspicion.
- There was insufficient evidence to show you were driving under the influence even if the officer had a lawful reason to detain you.
- Your Blood Alcohol Concentration Was Below 0.08%
Under this theory, the DMV can only suspend your driver's license if the police lawfully arrested you and you either:
- Operated a vehicle with a blood alcohol content of 0.08% or more, or
- You refused to submit to a blood or breath test.
If the police arrest you for DUI, you may be able to win at the DMV hearing if you are able to present evidence proving by a preponderance (greater than 50 percent chance) that your BAC did not exceed the allowable limit of 0.08%. This is oftentimes done by showing your BAC was below .08 at the time of driving even if the chemical test taken later in time showed a .08 BAC or higher. Having a toxicologist testify is sometimes critical to presenting this defense. If there are issues with the accuracy or calibration records of the chemical test, the person who calibrates and maintains the machines will need to be subpoenaed to testify at the hearing.
- Showing That You Did Not Operate a Vehicle
You will prevail at a DMV hearing if you prove that you did not drive while under the influence of alcohol or drugs. You only need to prove that at the time of impairment (when your BAC was likely to be at a .08 or higher (or .01 for under 21 or .04 for commercial drivers) you were not driving.
For example, sometimes the person arrested was actually the passenger, but for various reasons the officer believed he or she was driving. Perhaps the driver was first contacted while sleeping in his or her vehicle and had not driven for some period of time. A driver may have decided to sleep it off instead of driving home. Unfortunately, the police arrive and find you behind the wheel of the parked vehicle, consequently arresting you for drunk driving. In this case, you can argue that even if you were behind the wheel, you did not operate your vehicle while under the influence.
Whatever the factual scenario, you and your attorney may be able to show that the circumstantial evidence supports a no-driving defense.
- Refusal Defense: You Were Not Made Aware of The Consequences of Refusing to Submit to a Chemical Test
If you refuse to submit to a breath or blood test, the officer should inform you about the consequences of refusing a DUI chemical test under Vehicle Section 23612. For example, the officer should inform you that refusing to submit to a DUI chemical test will lead to a one to three year license suspension. You should also be informed that you don’t have a right to talk to attorney before deciding whether or not to take a test and before taking a chemical test. This admonition is usually in writing, and the arresting officer will oftentimes read it out loud to you. However, the police officer can also give you a summary of the refusal admonition as long as the important points are covered. If the arresting officer did not read this warning to you or left out key parts, you can use that failure as your defense at the DMV hearing and get the one to three year suspension set aside.
An arresting officer may:
- Forget to advise drivers who operate vehicles while intoxicated about the consequences of refusing a DUI test.
- Intentionally choose not to advise drivers accordingly.
- Paraphrase or recite the warning in their own words instead of reading it as it is written, leaving out required parts of the admonition.
- Read the admonition but not answer the driver’s legitimate questions or read thus causing confusion in the driver (officer induced confusion defense).
- There lacked reasonable suspicion to detain or the officer failed to have probable cause to arrest.
If the arresting officer behaved in any of the manners outlined above, you could use it as a basis to challenge the refusal allegation and hard suspension.
- Proving That You Did Not Refuse to Submit to A Breath Or Blood Test
If the arresting officer accuses you of refusing to submit to a DUI chemical test, you can win at the DMV hearing if you prove that you cooperated with the police and did not refuse to submit to a blood or breath test.
You can use this defense by proving the following:
- You submitted to a DUI chemical test.
- You tried to blow into the breathalyzer equipment, but your breath was insufficient.
- The police did not offer you a blood draw as an alternative to a breath test.
- You asked questions about the tests, but the police interpreted your curiosity as a test refusal.
After considering all the issues presented, the DMV hearing officer may decide to suspend your driver's license based on the alleged DUI offense, by "sustaining the action."
The DMV hearing officer could also decide to set aside your driver's license suspension, a decision known as "setting aside the action." If the DMV hearing officer sets aside the action, it results in no action being taken against your license. Your license will therefore not be suspended and you will be able to obtain a new hard copy of your license free of charge.
Remember, however, that whatever happens at the DMV hearing, it is separate from what happens in the criminal court!.
- 15-Minute Observation Period Violation
Title 17 of the California Code of Regulations outlines how blood and breath tests should be collected, administered, stored, and analyzed. If the officer does not adhere to Title 17 requirements, the DUI suspension court be challenged. Title 17 requires the arresting officer to observe you for fifteen minutes before conducting the DUI breath test. This observation period is crucial to ensuring that the driver does not drink, eat, vomit, regurgitate, smoke, or do anything else that could interfere with the results of the DUI test. It is supposed to also help avoid mouth alcohol from interfering with the test.
Failing to conduct this 15 minute observation period jeopardizes the results of the DUI test and could mean that the driver's blood alcohol concentration was not at or above 0.08% at the time of driving even if the test results indicate as much. Therefore, if you prove that the police did not observe you for fifteen minutes before conducting the DUI test, you could present this at the hearing through defense expert testimony. If the DMV cannot then restore their burden and show Title 17 was properly complied with, then the suspension will be set-aside.
- Faulty Breath Testing Equipment
Title 17 also requires the breath testing equipment to be properly maintained and operated. The law states that the testing equipment should undergo an accuracy check after every 150 blows or every ten days, whichever is sooner. The BAC results could be inaccurate if the testing officer uses equipment that does not meet these requirements. The DMV hearing officer could set aside your license suspension if you prove the testing equipment was not properly calibrated and the DMV is unable to rebut that evidence. False BAC readings could also result if the testing equipment malfunctioned or was reading too high. Any readings taken on faulty breathalyzer equipment cannot be relied on.
- A Physiological Explanation of Your High BAC Results
High BAC results do not always indicate that you have consumed alcohol or drugs beyond the allowable limit. There are several reasons, unrelated to the alcohol you consumed, that you could result in a BAC reading of 0.08% or higher when in actuality you did not consume that amount of alcohol.
Some medical conditions or diets could make your body produce substances known as ketones, whose chemical characteristics are like alcohol. The DUI breath testing machines do not always distinguish between alcohol and ketones. In addition, the arresting officers could confuse ketosis breath with the smell of alcohol. While uncommon, DUI testing equipment could indicate a high BAC level, even if you have not consumed alcohol. Some conditions that could make your body produce ketones include hypoglycemia, diabetes, a low carbohydrate/high-protein diet, and extended fasting.
Other medical conditions that could lead to false results from a DUI breath test include acid reflux, gastroesophageal reflux disease (GERD), severe heartburn, and hiatal hernia. Conditions like hiatal hernia, GERD, and acid reflux could make stomach acid flow back to your esophagus, leading to false BAC results. Unfortunately, some people suffering from these conditions are wrongly arrested and charged with DUI every year. Understanding how acid reflux/GERD works and how it can affect your BAC results can form a good basis for your defense.
Mouth alcohol could also lead to an elevated BAC result. Residual mouth alcohol is a commonly used defense for DUI charges. This is because the DUI testing machine could pick up traces of alcohol in your mouth. Mouth alcohol occurs whenever you consume or regurgitate something with alcohol in it. The common sources of mouth alcohol include chewing tobacco, certain medications like cough syrup and Nyquil, breath sprays like Listerine, and dental work like retainers and dentures.
- Rising Blood Alcohol
In certain fact specific cases, one could use the rising blood alcohol defense to fight DUI charges and win at the DMV hearing. When you consume alcohol, it takes time for your body to metabolize it. Therefore, your BAC continues to rise rapidly but in a sometimes uneven pattern until it reaches its peak. The BAC peaks roughly anywhere from 30 minutes to 2 hours after you consume alcohol. However, this period varies from person to person. For some people, it could even take two to three hours for the blood alcohol content to peak. (There are some studies showing it can take even longer in some individuals!)
This means your BAC levels may be within the allowable limits when the arresting officer stops your vehicle. However, as you await the chemical test, your BAC levels will still rise, which could lead to higher BAC readings at the testing time. Especially if your BAC reading is just slightly above the allowable limit, your attorney can defend you by asserting that your BAC was below 0.08% when driving. Of course, if a defendant tells police that they only had 2 drinks 5 hours ago, this defense may be harder to present. This is why it is best to never answer questions asked by police!
This defense could convince the DMV officer to allow you to retain your driver's license. If you intend to use the rising alcohol defense, you will probably require the help of a DUI expert witness to give their testimony at the DMV hearing. At the administrative hearing at the DMV, the results of a DUI chemical test are considered accurate until proven otherwise. This is referred to as a rebuttable presumption. Therefore, you will have the burden to prove that the DUI chemical test results were inaccurate. To do this, you will likely require a forensic toxicologist to consider all the relevant factors and create a personalized BAC report for presentation at the hearing.
- The Police Arrested You at An Illegal DUI Checkpoint
Mostly, DUI checkpoints are considered legal in California. However, if you are arrested at a DUI checkpoint, you may be able to challenge your DUI charges at the DMV hearing and prevent the suspension of your driver's license. The law does not require the police to have reasonable cause to stop you at a DUI checkpoint. However, the checkpoint must meet certain requirements to be legal. Both the U.S. Constitution and the California Constitution outline these requirements. California law requires DUI checkpoints to meet the following requirements:
- Only an authorized supervisor should make operational decisions at the checkpoint.
- The officers must adopt a neutral criterion for stopping motorists.
- The location of a DUI checkpoint must be reasonable.
- Officers operating a DUI checkpoint must take proper precautions.
- The duration and timing of the checkpoint should indicate good judgment.
- The DUI checkpoint should have a sufficient indication that it is official.
- Officers should only hold or detain the drivers for a limited period.
- The officers should advertise the planned roadblocks ahead of time.
You could be able to fight your DUI charges at the DMV hearing if the police arrest you at a DUI checkpoint that does not meet the conditions outlined above.
The law does not prohibit you from intentionally avoiding a DUI checkpoint. Provided it is safe, you can turn around and use another route when you spot a DUI checkpoint. The law prohibits law enforcement officers from stopping your vehicle just because you avoided a DUI checkpoint.
However, it is important to note that normal traffic rules apply even at a DUI checkpoint. Law enforcement officers can stop you when you are trying to avoid a checkpoint if you:
- You have a defect like a broken taillight on your vehicle.
- You commit a traffic violation.
- You portray obvious signs of intoxication.
The law requires all drivers to stop at a DUI checkpoint and cooperate with the police. However, this does not mean you must comply with the field sobriety tests. You could refuse these tests, although you are not allowed to refuse a chemical test if requested to do one by the officer.
If you feel that, for any reason, the DUI checkpoint was illegal, your attorney may be able to help you build a defense around that.
The California State case that is referenced most often when discussing DUI checkpoints is the case of Ingersoll v. Palmer. The California Supreme Court created 8 guidelines for police to follow. However, failing to fulfill one of the guidelines will not automatically invalidate the checkpoint.
- Flaws In The Officer's Paperwork
When making a DUI arrest, the arresting officer must complete some paperwork and mandatory reports. If the officer makes an material error on this paperwork, you could use it as a defense. For example, the arresting officer could:
- Indicate the wrong dates or times on the paperwork.
- Fail to sign the proper documents.
- Fail to indicate the BAC results.
- Record the wrong BAC results.
All the errors outlined above could work in your favor, leading to a positive outcome at the DMV hearing.
Unreliable PAS Results
If you are under 21 years old and the police arrest you for violating the underage DUI zero tolerance laws, they could fail to lay the proper foundation for your BAC results. The law prohibits people under the age of 21 from operating a vehicle with a measurable alcohol content in their blood. Therefore, when dealing with underage driving, officers conduct preliminary alcohol screening tests, abbreviated as “PAS”, instead of conducting chemical DUI tests.
Title 17 does not regulate PAS devices. Therefore, the DMV must provide evidence of why the PAS results should be relied upon as evidence of your drunk driving. Your attorney could call the arresting officer and a forensic alcohol expert at your DMV hearing to support these defenses.
DMV Hearing and DUI Court Case
The DMV hearing differs from a criminal court case because it does not focus on determining whether you committed a criminal act. During a DMV hearing, the officer mainly focuses on the circumstances surrounding your DUI arrest and whether your driving privileges should be upheld or suspended. However, a DMV hearing is closely related to a DUI hearing. The prosecutor could reduce your criminal charges or even dismiss them based on the outcome of the DMV hearing.
You could win at the DMV hearing, and yet the Department of Motor Vehicles could later issue a suspension based upon a DUI conviction in court. A court conviction could occur after a plea deal or after a guilty verdict after a trial.
On the other hand, you could fail to win at the DMV hearing, and the Department of Motor Vehicles would suspend your driving privileges. However, if you receive a not-guilty verdict during a court trial, the DMV will have no option but to reinstate your driving privileges if the basis for the suspension was for driving with a .08 (or .01 or .04) or higher and you secure a not guilty verdict on that same charge. Pleading guilty or no contest to a reduced charge or a court dismissal will not impact the DMV license revocation/suspension in any way (except for possibly points on your record).
Compared to a DMV hearing, a court trial is more comprehensive and involved. During a court trial, your attorney will have much more leeway to explore defenses for your case.
What to Expect
A DMV official will conduct your hearing. This individual is not a judge or a lawyer but an administrative employee. They are not there to determine your guilt or innocence. All they have to determine if there sufficient evidence to show by a preponderance of the evidence that you drove with a .08 percent or more blood alcohol level (or .01 if under age or .04 if driving a commercial vehicle), or if you refused a chemical test after being requested to take one by an officer. If the evidence is insufficient or you and your lawyer are able to rebut the presumption, the DMV will set aside the suspension. At an APS hearing the DMV officer will consider some of these issues:
- Was the officer justified in detaining you?
- Was the arrest lawful?
- Were you driving with a blood alcohol content (BAC) of .08% or higher if you took a chemical test?
- (In refusal cases) Did the police tell you that refusing the test would result in a suspension of your driver's license, and did you deny it willfully?
To prevail in your DMV hearing, you must make clear, powerful arguments, supported by as much evidence as feasible, in order to rebut one or more of the presumptions against you.
At a DMV hearing in a DUI case, you can:
- Allow your DUI attorney to represent you at the hearing.
- Request that the hearing be in person instead of over the phone (none will be in person until DMV allows in-person hearings to resume.).
- Subpoena and cross-examine the officer who made the arrest or other witnesses.
- Present the testimony of a defense toxicologist and/or subpoena the testimony of the state’s toxicologist.
It is normally wise to not represent yourself at the DMV hearing. A driver does not have a right to a lawyer so if a driver wishes to have an attorney represent him or her he or she must hire one.
Find a Criminal Defense Attorney Near Me
Facing a possible suspension of your driver's license can be traumatizing. It means you will find trouble attending work, school, and other crucial appointments. If you need guidance and legal representation for a DMV hearing in Los Angeles County or in the Pasadena and San Gabriel area, contact Attorney Ann Gottesman at the Law Office of Ann Gottesman for a free consultation. Ann is ready to take your call!