WHAT IS A DMV HEARING

California law permits the Department of Motor Vehicles (DMV) to order a suspension of your driving privilege if you get arrested for a DUI. The driver has the right to a hearing with the DMV to contest the suspension, and to review the evidence supporting the suspension. The driver or driver's attorney must request the hearing within 10 calendar days of receiving the notice against his driving privilege (usually from the police officer). The request must be done within 10 days, but the actual hearing can be 30-60 days later. The hearing itself is tape recorded, and are conducted by telephone or in person. If in person, the hearing is held with a DMV Driver Safety Hearing Officer at the local DMV Driver Safety office.

At the hearing, the driver and/or driver's attorney is informed of the legal rights for the hearing. Here is the opportunity to review and challenge the DMV evidence, and to present your evidence and testimony. The DMV officer (not the police officer) will make a decision to uphold (sustain), or to rescind (set aside) the DMV suspension.

YOUR LEGAL RIGHTS AT A DMV HEARING

The driver has the right to be represented by an attorney at the suspension hearing, at the driver's own expense. Representation by an attorney is not required, but strongly recommended. You have the right to review the evidence, and to cross-examine the police office (if the police officer is present). You have the right to testify on your own behalf, usually by answering prepared questions presented by your DUI attorney. Your attorney will give a closing argument, summarize the facts and quote vehicle code laws or relevant court cases. You have the right to get a written decision from the DMV.

HOW TO SCHEDULE A DMV HEARING

If you want a DMV hearing, you must call the DMV and request a hearing within 10 days of your arrest. You have a right to a hearing only if you had a valid driver's license at the time of your arrest. No valid license means no DMV hearing. The DMV hearing date and time should be coordinated with your attorney's calendar, in order to avoid a scheduling conflict. For this reason alone, it is better to have your DUI attorney call the DMV and schedule your DMV hearing. However, if you cannot retain an attorney before the 10 day cut-off, then you should call the DMV Driver Safety Office and request a hearing. The DMV will generally give you a short grace period to have your attorney call back and actually schedule the date and time of the hearing.

THE DMV HEARING PROCESS

The DMV has the responsibilty (known legally as "burden") to prove the suspension of your driving privilege is justified. Specifically, the DMV must prove that (1.) the stop of your vehicle was legal, (2.) the officer had a reasonable belief you were under the influence, and (3.) your blood alcohol level was greater the 0.08 percent. The first two requirements are met when the observations in the police report are more likely to be true than not true. Effectively, this standard of proof is satisfied if there is greater than 50% chance that the police report is true, or the findings in the police report are "more probable than not" (known legally as "preponderance of the evidence").

The DMV Hearing Officer will want to put into evidence the sworn statement of the arresting officer, plus other documents as your blood or breath alcohol results and your driving record. Your DUI attorney will attempt to prevent these documents from being put into evidence, and thus stopping the DMV from using them against you.

A set of laws (known as "Title 17" / California Code of Regulations / Public Health) mandates procedures that must be followed to allow blood and breath results to be entered into evidence. if these procedures are not followed, then the credibility of the blood or breath results is reduced. Given enough incorrect procedures, the documents may not be allowed into evidence. The DMV then could not prove the alcohol amount, and force the DMV to grant a set-aside in your case.

Testimomy from the driver may be important in explaining confusing issues in the police report. Sometimes confusing issues are good for your defense, and other times the confusion needs to be cleared up by personal testimony. Every DUI criminal case is different, and sometimes personal testimony can effectively fight your DMV case.

When all documents are put into evidence, and testimony and summary arguments given, then the DMV takes the case under submission. If the case against you is set-aside, then you will get your regular license, and are free to drive anywhere. If the case against you is upheld, the suspension on your driver's license will begin when you receive notice by mail.

If this is your first DUI suspension, then your driving license will be suspended for 120 days. A second DUI suspension will be for one year. You will be required to complete an alcohol education program which varies from 3 months to 18 months. If you meet several requirements, you may be able to get a restricted work license allowing you to drive to your place of employment and back home, plus any driving required for your employment.

THE DMV HEARING IS DOCUMENT DRIVEN

Your DMV Hearing is contolled mostly by the documents provided by the police. Unlike a criminal court hearing, the DMV hearing is much less formal, and the DMV Hearing Officer is in charge. The Hearing Officer is a DMV employee, and is not an attorney, and may have little to no legal education. The DMV will most likely not call any witness, but will rely on the police report, alcohol results and driving history prepared after your arrest. However, if any of these documents are not complete or not correct, then the DMV may not be able to overcome the low standard level of proof required to suspend your driving license. In this case, the arresting officer may be required to testify, usually by telephone.  An experienced DUI lawyer can identify the mistakes, omissions and contradictions in these documents, and object to these documents being admitted into evidence. If successful in getting critical documents not admitted, then the DMV would not be able to prove their case, and you would get a set-aside of your license suspension.