How to Win Your DMV Hearing in a DUI

Were you arrested for a DUI?  If you were, you probably had your driver’s license taken away and were given a temporary license, that’s only good for 30 days.

What happens now?  You must request a hearing with the DMV’s office of driver safety within 10 days. (For Orange County DUI Arrests, that is the Office of Driver Safety in Orange, California).
Part of the request involves a stay on suspension – in other words, your temporary license will continue to be good beyond the

Part of the request involves a stay on suspension – in other words, your temporary license will continue to be good beyond the 30-day expiration date so that you can keep driving with a full license. You must also request the evidence to be used against you.

The DMV, on their end, will then schedule an in-person, or telephonic, hearing.  They will send you confirmation of the date of the hearing through the mail, along with your new temporary license, and a complete copy of all of the evidence that will be used against you at the hearing.  That usually includes the following documents, which are sent in a large envelope from the DMV hearing office:

  • The DMV’s DS-367 form, which includes the probable cause statement
  • The police report;
  • Any traffic collision reports;
  • The blood test results, or breath testing results; and
  • Your complete driving record.

The hearing, in most cases, is scheduled about 45 days away, although it’s not unusual for DMV hearings to be continued, for some reasons.

What happens at the hearing?

If you were arrested for an Orange County DUI or arrested anywhere in California for a DUI, your hearing will be conducted by a DMV hearing officer.  That officer is not a judge and is not even a lawyer.  They preside over the entire hearing, making decisions on evidence, and making a final decision on the case.

The hearing officer has to find out if there is sufficient evidence as to the three issues with a hearing, which are as follows:

  1. Did the officer have probable cause to pull over the driver or investigate?
  2. Did the officer follow all of the procedures to place the driver under lawful arrest?
  3. Is it proven that the driver was operating a motor vehicle, and also above a .08% alcohol level at the time of driving, not just at a later test?

(If you were on probation for DUI, or under 21, or is alleged to have refused a test, there are additional issues to prove each of those situations.

What Wins a DMV hearing:

Being aggressive about objections is helpful to kick out evidence that could otherwise be used against you.  The evidence code discourages hearsay or any documents that lack foundation, or that require specific expert opinions.  Officers will often put in the evidence of the report that is a legal conclusion, rather than proven.  Even mistakes like the wrong date, or omitting a signature, can win the entire hearing.

The evidence must also meet the state’s testing code, Title 17 of the administrative code.  That requires a test within three hours of driving, and for breath testing, that the two breath tests required being taken two minutes apart, and agree within a .02% of each other.

Most cases are won on the probable cause issue.  Some are won on the “proper arrest” issue.  However, if a case can’t be proven by way of driving or as to the alcohol level, or compliance with the alcohol testing requirements, then the evidence is not admissible to prove the DMV case, and you win your license back.

If you have questions for our Orange County DUI lawyers, please contact our firm.  We are happy to help you.

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