Under California law, there are two ways to lose your driver’s license if you’re arrested for DUI. One is to be convicted of the DUI charge in court. But the other way can happen whether you are convicted or not—in fact, it often happens before you’ve even had your day in court. This is the “admin per se” license suspension, or administrative suspension, handled by the state DMV.
Administrative suspension goes into effect just 30 days after your arrest. But you can fight the suspension if you request a DMV hearing within 10 days of the arrest. Requesting your DMV hearing gives you two big advantages:
- Your license suspension will be stayed until the hearing date, which is often months away. This buys you much needed time.
- If you make a strong case at the hearing, you may get the administrative suspension dropped altogether. That means you get to keep your license until and unless you’re convicted of DUI.
Obviously, you want to win your hearing if at all possible. To do that, you need to know what the DMV is looking for and what kinds of evidence will help you win.
What a DMV Officer Looks for in a Hearing
Your hearing will be held by a DMV officer. This person is an administrative employee, not a judge or lawyer. They’re not there to decide whether you’re guilty. All they need to know is whether there are solid grounds for the DUI charge. If not, they will drop the suspension and wait for the courts to make a decision.
To that end they will consider several factors:
- Did the officer have probable cause to suspect you of DUI?
- Was the arrest done lawfully?
- If you took a chemical test: Were you driving with a blood alcohol concentration (BAC) of .08% or more?
- If you refused the test: Did the officer warn you that refusing it will result in a suspended license, and did you refuse it willfully?
To win your hearing you must present clear, strong arguments against one or more of these points, with as much evidence as possible. You are allowed to:
- Have your DUI lawyer represent you at the hearing
- Have the hearing held in person rather than over the phone
- Subpoena the arresting officer or other witnesses, and cross examine them
It’s generally recommended that you should take advantage of all three of these options.
7 Defenses That Can Win a DMV Hearing
Based on the above factors there are a wide variety of defenses that can win a DMV hearing. A good DUI lawyer will know all of them and choose the strongest ones for your specific case. Seven of the most effective arguments include:
- The officer did not have probable cause to stop you. Officers cannot pull over a car without reason, nor can they pull you over based purely on your race (“racial profiling”). If you were following all traffic laws when you were first stopped, there’s a strong case that there was no probable cause.
- You were arrested at a DUI checkpoint that didn’t follow legal procedures. It is legal for police to hold DUI checkpoints or “roadblocks,” but they must follow strict legal procedures in doing so. This includes alerting the public to the roadblock in advance, screening cars on a random basis, and having supervisors on hand to monitor the process, among other rules.
- The arresting officer didn’t conduct a proper “observation period.” Prior to administering a breath test police must observe you for 15 minutes. The purpose of this observation period is to make sure you do not burp, vomit, or eat or drink anything prior to the test. If you weren’t properly observed, the test results may not be accurate.
- You didn’t drive. If you didn’t actually drive your car then you are not guilty of DUI.
- You got a false high BAC level. The blood or breath test can be thrown off by many factors such as mouth alcohol, rising BAC, your diet and even health conditions.
- The breath test equipment didn’t work correctly. Breath test equipment must be maintained and calibrated on a regular basis. Your lawyer can pull the calibration record for your breath test device. If it wasn’t calibrated or there’s evidence of a malfunction, the results may not be valid.
- The officer didn’t explain the consequences of refusing the test. Police are supposed to clearly advise you of the consequences of refusing the chemical test when they first ask you to take it. If not, the refusal may not count against you.
Any of these circumstances could help you win your DMV hearing, but doing so requires legal expertise. Let us match you to a DUI lawyer who had the right experience for your case. Fill out the form to the right or call (310) 896-2724 and get your free consultation today.