DUI & DMV Hearing Issues

“The Department of Motor Vehicles and the Administrative Per Se Hearing” TRIAL BAR NEWS

Journal of the Consumer Attorneys of San Diego (January 2006)


Tuesday evening, a patrol cruiser drops in behind a Mercedes traveling 70 miles per hour on SR- 163.  The driver who is talking on the cell phone,  glances in his review mirror just as the patrol cruiser’s red lights are activated.  The driver has a sinking feeling.  He pulls his car to the side of the road and parks.  There is a tap on his window and his body tightens with tension.   As he lowers the window, the officer asks for his license and registration.

The driver complies with the officer’s request.  The dreaded question is asked: “have you been drinking tonight, sir?”  Potential responses flood the driver’s mind.  His mouth confesses “yes”  before he is finished thinking. “Please step out of the vehicle.”  The officer directs the driver to perform a series of Field Coordination Tests such as walking a straight line and reciting the alphabet.  Too shy or embarrassed to ask,  the driver wonders – “do I have to do these circus acts?  I couldn’t do this while sober?”  Then, standing on the side of the road, the officer asks the driver to blow into a breath machine, known as a Preliminary Alcohol Screening device (PAS).  Again, the driver wonders – “do I have to do this test?”

After the driver completes blowing into the PAS machine, to his horror he is informed that he is under arrest.  As the officer handcuffs the driver and puts him in the backseat,  he asks the driver – “do you prefer to take a blood or breath test at the station?”  The driver responds– “can I call my attorney before I choose a test?”  The officer responds “No, do you prefer a blood or breath test?”  The driver then again wonders – “What are my rights?  Do I have to take this test?”

The driver is taken to the station, where he submits to a chemical test.  He now faces consequences not only with the criminal court but also the Department of Motor Vehicles (DMV).    The administration license suspension law, known as “Admin Per Se” (APS) requires the DMV to suspend or revoke the driving privilege of any person arrested for driving under the influence of alcohol (DUI) who:  1) takes a blood or breath test which shows a Blood Alcohol Concentration (“BAC”) of .08 or higher; or 2) refuses to take or fails to complete a breath or blood test.  The DMV’s actions are independent of any court sanctions.  So what are the Driver’s rights with regards to the DMV after being stopped and arrested for DUI?

Do I Have To Take These Tests? –  And Implied Consent  

When referring to the PAS and Field Coordination test, the short answer to the driver’s above question: “Do I have to take these tests?” – is No.  If a driver is 21 years or older,  he or she is NOT required to perform the requested Field Coordination Tests nor is he or she required to submit to a PAS test.  There may be intangible consequences such as the hearing officer considering refusal to do these tests as a consciousness of guilt but there are no enumerated legal ramifications.  However, if a driver is under 21, he or she is required to submit to a PAS test due to stricter “zero tolerance” laws regarding alcohol use and the underage driver.  (Veh. C. § 23136 ( c).)

Implied Consent Law and a “Refusal”

A driver must take a chemical test after being arrested for a DUI offense.   The DMV issues a driver’s license on the condition that the driver will submit to a blood or breath test after an officer has arrested him or her for suspicion of DUI.  (Veh. C. § 23612, Implied Consent for Chemical Testing.)  If a driver fails or refuses to take such a test and  is unsuccessful at the DMV hearing, as discussed below,  then upon the first offense the driver will lose their license for one year and  he or she is not entitled to a restricted license for work purposes. (Veh. C. §13353.)

Contrary to legal intuition or what is seen on television, a driver does not have a right to contact an attorney when deciding whether to take a chemical test or which one to elect.  (See Ent v. DMV, (1968)  265 Cal.App.2d  936; and Finley v. Orr, (1968)  262 Cal.App.2d 656;  But see McDownnell v. DMV (1975) 45 Cal.App.3d 653, which provides a potential defense in a refusal hearing if the officer induced confusion under certain circumstances.)

For the driver who refuses to submit to a mandatory chemical test, police have the authority and can forcibly take a blood sample.  (See Schemerber v. California, (1966) 387 U.S. 757.)

What Are The Driver’s Rights

Notice of a Due Process

After the arrest, the officer will usually hand the driver a pink piece of paper.  This is written notice that the DMV will suspend his or her license.  The suspension time depends on the existence of prior offenses and ranges from four months to one year.  If it is a first offense (not including a refusal) the driver may be eligible for a restricted license.  However, the driver is entitled to a hearing.  He or she has 10 days from the date of arrest to demand such a hearing (the actual hearing will follow approximately 45 days from the request of a hearing.)  If the driver fails to make such a demand, then a suspension will automatically follow 30 days from the date of the arrest.

The APS Hearing

At an APS hearing, a driver has the following rights: (1) to be represented by an attorney, at the driver’s expense; (2) to review the evidence and cross-examine the testimony of any witness for the DMV; (3) to present evidence and relevant witnesses on behalf of the driver; (4) to testify on his or her own behalf.  The driver’s need for his or her license such as professional, medical, or child care issues cannot be considered at the APS hearing.  The scope of the hearing is limited to the following issues:

  1. Did the officer have probable cause to stop the driver’s vehicle?
  2. Did the officer lawfully arrest the driver?
  3. (If a refusal hearing)  Was the driver told that a refusal to submit to or failure to complete a chemical test would result in a one year license suspension?
  4. (If a refusal hearing) Did the driver refuse to submit to or fail to complete a blood or breath test after being asked to do so by a officer?
  5. Was the driver operating a motor vehicle with .08 or more by weight of alcohol in his/her  blood?

A Driver Safety Hearing Officer is an employee of the DMV who has received training to conduct hearings.  The Hearing Officer sits as both the proponent of evidence and the finder of fact.  The DMV hearing officer weighs the evidence and makes a decision based on a preponderance of the evidence standard.  See, Daniels v. Department of Motor Vehicles (1983) 33 Cal.3d 532, 536.

An attorney representing a driver should be prepared to cross examine lay witnesses, phlebotomists, crime lab technicians, and police officers.  There are many nuances to this specialized area of law.  For example, the chemical test, be it breath or blood, must have been timely.  If there was an accident, the officer must state with clarity how the time of driving was established.  Moreover, the person administering the test to the driver, whether it be an operator of the breath machine or the person drawing blood, must be qualified under California Law.  Thus, an attorney must be cognizant of these issues and others when mounting an affirmative defense.  The attorney may use an expert witness such as a toxicologist to attack the breath or blood test results.  Depending on the circumstances, defense counsel may utilize the services of an accident reconstructionist or private investigator when analyzing the reasonableness for the law enforcement contact.

After a DMV hearing, the hearing officer can implement a range of administrative actions from no action to a suspension.  If the driver disagrees with the decision, the driver can request a departmental review within 15 days from the written decision or seek review in the Superior Court by way of petition for Writ of Mandamus within 30 days or up to 94 days from the written decision depending on the particular circumstances of the case.


Even in these “civil” administrative hearings, a strong foundation in Fourth Amendment juris prudence is required.  In addition, a solid understanding of the science of alcohol absorption,  burn-off, and measurement techniques is essential.