DMV Hearing and Driver License Suspension FAQs

You must request a DMV hearing within 10 days of your arrest, or face an automatic suspension of your driver's license. Below are some common questions about the DMV hearing and Driver License Suspension.

 

How is the DMV hearing different than Court?  The DMV has jurisdiction over your driving privileges, and thus the ultimate say over whether your driver's license is suspended or revoked.  The DMV administrative action is separate from your criminal case in court.  The DMV's suspension or revocation of a driver's license is mandatory after a DUI conviction, in addition to any jail time or fines imposed by the court.

 

After a DUI arrest, what happens with the DMV?  The officer who arrested you is required by law to forward to the DMV immediately a copy of the Notice of Suspension given to you, any driver license confiscated, and a sworn report.  The DMV automatically reviews these, as well as any chemical breath or blood test results.

 

How do I get my license back after the officer confiscated it?  At the time of your arrest or release from jail for DUI, you were given a pink Notice of Suspension and temporary license.  The DMV can suspend your license for up to three years if it is your third offense and you refused the chemical test at the time of your arrest.  Your license will be returned to you at the end of your suspension or revocation, but you must pay a $125 re-issue fee and file a Statement of Financial Responsibility.  You can also get your driver's license back if the DMV finds there was no basis for taking it.

 

The Officer said I refused the chemical test.  What does that mean?  Under the law, your are required to submit to a chemical test to determine the alcohol or drug content of your blood. If you refused to take a blood or breath test after being requested to do so by a peace officer, you may have to take a urine test, if:  1) the officer suspects that you were driving under the influence of drugs or a combination of drugs and alcohol, or 2) both the blood or breath tests are not available, or 3) you are a hemophiliac, or 4) you are taking anticoagulant medication in conjunction with a heart condition.

 

How does the Order of Suspension and Temporary License work? The license is temporary and is usually issued on a pink piece of paper. You may drive for 30 days from the date the order of suspension or revocation was issued, provided you have been issued a California driver license and your license is not expired, or your driving privilege is not suspended or revoked for any other reason.

 

Why do I need to contact the DMV within 10 days of my arrest? You (or your attorney) must contact the DMV within 10 days to protect your driving privileges, because your temporary license expires 30 days after your arrest. If you contact the DMV in time, your driving privileges will not be suspended before a hearing is held and a decision is made.

 

What is a DMV "APS Hearing"? In addition to court proceedings, a drunk-driving arrest triggers a DMV administrative action to suspend your privilege to drive. The Administrative Per Se Hearing ("APS") is your opportunity to challenge the DMV's attempt to restrict or suspend your license.

 

Can I drive while awaiting my DMV hearing? If you or your attorney gets a "stay" or postponement of your driver's license suspension pending the result of the DMV hearing, you may be able to drive before your hearing. You must contact the DMV within 10 days of your arrest to petition the DMV for such a stay.

 

How do I contact the DMV to request a hearing? An attorney can contact the DMV to schedule the hearing for you at the DMV Driver Safety office nearest to the location of your arrest. Your attorney may advise the DMV that you are retaining an attorney, requesting a stay on your driver's license suspension, and sending a written request for discovery. The DMV will give you the option of an "in person" or "telephonic" hearing. Requesting a hearing will most likely prevent your driving privilege from being suspended until your case is heard.

 

What happens at the DMV hearing? A hearing officer will conduct the hearing just like a prosecutor would in a criminal case, but the officer also makes the final decision based on the evidence presented. It will not matter that you need to drive for work or because of a medical or educational need, unless you are under age 21. You may represent yourself or hire an attorney to represent you, just as in a criminal case.

The only issues that will be discussed, by law, at the hearing are:

  • If you took a blood, breath or urine test, did the officer have reasonable cause to believe that you were driving a motor vehicle in violation of Vehicle Code 23140, 23152 or 23153?

  • Were you placed under lawful arrest?

  • Were you driving a motor vehicle when you had .08% or more by weight of alcohol in your blood or .01% or more if under age 21 or on probation for a DUI?

  • If you refused or failed to complete a blood, breath or urine test, did the officer have reasonable cause to believe you driving a motor vehicle in violation of Vehicle Code 23140, 23152 or 23153?

  • Were you told that if you refused to submit to or fail to complete a blood, breath or urine test after being requested to do so by a peace officer, that your driving privilege would be suspended for one year or revoked for two or three years?

  • Did you refuse to submit to or fail to complete a blood, breath or urine test after being requested to do so by an officer?

You or your attorney must request documents or police reports in the DMV's possession in writing before the hearing in order to see the DMV's evidence. You or your attorney may present oral testimony and other evidence, or file the information in written form.

Although the arresting officer does not have to testify, the DMV may call the officer if it is later determined that his or her testimony is needed. You or your attorney may subpoena the officer or any other witness you feel would help your case. If you decide to represent yourself, you are responsible for payment of any required fees and for making sure your witness receives the subpoena.

If, after hearing the argument of an attorney regarding your license, the review shows there is no basis for the suspension or revocation, the action will be set aside. You will be notified by the DMV in writing only if the suspension or revocation is set aside following the administrative review.

If you lose at the hearing, you may request a departmental review in writing within 15 days for an additional fee of $120, or you may request a court review by filing a writ with the Superior Court within the number of days shown on the bottom of the notice that was mailed to you telling you the results of your hearing.

 

Can I win a DMV hearing? It is possible to win a DMV hearing. In many cases, there are legal questions concerning the procedure of the arrest that can be challenged, as the DMV must prove that the investigation and arrest were carried out legally in order to suspend a driver's license.

The DMV must show that a person arrested for driving under the influence:

  • Takes a breath test which shows a Blood Alcohol Concentration (BAC) of .08% or more, or over .01% if under age 21 or on probation for a DUI, or

  • Takes a blood or urine test and the officer believes that the driver is at or above the .08% BAC, .01% if under age 21 or on probation for a DUI, or

  • Refuses to take or fails to complete a blood, breath or urine test of BAC.

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© 2015 Maralee Eriksen