Can I Win My DMV DUI License Suspension Hearing?
With over 25 years of experience, DMV Hearing Attorney Richard Wagner knows how the DMV works. Read Richard Wagner's profile.
“Dear Richard:
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DMV DUI License Suspension Hearings are also known as Admin Per Se or APS hearings. They are called “administrative per se” because the DMV does not criminally penalize you.
The DMV suspends or revokes your driving privilege as an administrative matter if there is enough evidence that you were driving with a certain blood-alcohol concentration1 or if you refused to take a blood or breath test.2
These hearings are complicated. If you win your DMV hearing, it is called a Set Aside.
That's why you should do what countless others have done who have been in your shoes when arrested for a DUI, hire DUI DMV Hearing Attorney Richard Wagner.
How Do You Win A DMV Hearing If You Get Into an Accident and Your BAC Is .15%?
CVC §13380 requires arresting officers to provide a sworn statement with all or nearly all of the information relevant to the enforcement action. This includes:
- the time of driving,
- the time so-called objective symptoms of intoxication were observed,
- and the time of arrest.
These facts must be established for the three-hour presumption to apply.
What is the three-hour presumption? VC 23152(b) says it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after driving.
However, if the officer fails to establish the time of driving, this rebuttable presumption cannot apply.
Also, California Evidence Code Section 1280, Official records exception, says, "Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies:
(c) The sources of information and method and time of preparation were such as to indicate its trustworthiness."
This means when an officer fails to include evidence of the time of driving or provides conflicting evidence, the officer's report cannot be admitted into evidence at the DMV Hearing. It is hearsay.
Documents presented as evidence must be legally relevant. DMV Hearing Attorney Richard Wagner knows the law and makes legal objections.
You are entitled to a DMV hearing.
The hearings are held at a Driver Safety Office. Not a DMV Field Office.
If you don't request a hearing within ten days you could be out of luck. But don't worry.
The Law Office of Richard Wagner has convinced the DMV to give clients DMV hearings who have missed the 10-day deadline in some cases.
If the DMV can't do the DMV hearing and make a decision before your temporary license runs out, you are entitled to a stay, or a pause, on the suspension.
You also get an extension on your temporary driver's license.
DMV BAC .08% Hearings
If 21 or over, the 3 issues at your DMV Admin Per Se Hearing are:
1) Did the police officer have reasonable cause to believe you were driving in violation of Section 23152, 23153 or 23154 of the California Vehicle Code?
2) Were you lawfully arrested or lawfully detained while on DUI probation?
3) Were you driving when you had 0.08% BAC?3
Commercial driver license holders are professional drivers who operate large, heavy motor vehicles. You transport hazardous materials or vulnerable passengers. The law holds you to a higher standard when operating motor vehicles requiring any class.
If you were a commercially licensed driver, operating a commercial motor vehicle, or transporting hazardous material, you will be subject to a commercial disqualification action when the APS action becomes effective.
DMV Penalties – .08% BAC Hearings
First DMV Admin Per Se Hearing → 4-month suspension.4
Second or more DMV Admin Per Se suspensions or DUI convictions within 10 years → 1-year5 suspension.
First Commercial Disqualification → 1 year.
Second Commercial Disqualification → Lifetime.
DMV Hearing Attorney Richard Wagner helps you get a restricted license. Hire DUI Attorney Richard Wagner and get back on the road!
Commercial drivers 21 years of age or older whose license becomes suspended and who have not been convicted of a separate DUI violation or have not had a prior APS or PAS action within 10 years, may apply to the DMV for two types of restricted non-commercial driver's license. The Law Office of Richard Wagner will help you with this.
Commercial Driver's License holders must downgrade (become non-commercial) if they wish to receive a restricted license.
DMV Refusal Hearings
If 21 or over and accused of Refusing, the Hearing issues are:
- Did the police officer have reasonable cause to believe you were driving in violation of Section 23152, 23153 or 23154 of the California Vehicle Code?
- Were you lawfully arrested or lawfully detained while on DUI probation?
- Were you told your driving privilege would be suspended, or revoked for one, two, or three years if you refused?
- Did you refuse a chemical test or PAS test (DUI Probation) after being requested to do so by a police officer?
How Do I Win My DMV Hearing For My 2nd DUI and I am Accused of Refusing?
DMV Penalties – Refusal Hearings
If the DMV rules you Refused, and this is your First DUI, suspension → 1 year, with no restricted license available.
If the DMV rules you Refused and this is your Second DUI within 10 years→ 2-year revocation with no restricted license available.
If you Refused, and this is your Third DUI within 10 years→ 3-year revocation, with no restricted license available.
First Commercial Disqualification → 1 year.
Second Commercial Disqualification → Lifetime.
DMV Under 21 Hearings
The Zero Tolerance Law: If under 21 at the time of your first DUI, the DMV wants to suspend your driving privilege for → 1 year.
You can apply for a critical need restricted license unless you refused. A critical need to drive means the circumstances required to be shown to get a junior permit. Types of restricted licenses are:
- to and from school
- for family illness
- to and from work
- for family business
The DMV must prove these issues at the Under Age 21 PAS Hearing:
- Did the police officer have reasonable cause to believe you were driving in violation of Section 23136, 23140, 23152, 23153, or 23154 of the California Vehicle Code?
- Were you lawfully detained?
- Were you, while under the age of 21, driving with a BAC of 0.01% or greater, as measured by a preliminary alcohol screening (PAS) device?
The DMV must prove these issues at the Under Age 21 Refusal Hearing:
- Did the officer have reasonable cause to believe you were driving a motor vehicle in violation of §23136 VC?
- Were you lawfully detained?
- Were you told your driving privilege would be suspended or revoked for one to three years? Did you refuse to submit to or fail to complete a PAS test or other chemical test after being requested to do so by a peace officer?
If the DMV rules you Refused, and this is your First DUI, suspension → 1-year suspension, with no restricted license available.
If the DMV rules you Refused, and this is your Second DUI within 10 years, suspension → 2-year revocation, with no restricted license available.
If the DMV rules you Refused, and this is your Third DUI within 10 years → 3-year revocation, with no restricted license available.
An officer cannot stop a person to investigate for driving under the influence or any other crime without a valid, legal reason. The facts are necessary because probable cause to stop/investigate is a part of the lawful arrest issue.
Whether there was a lawful arrest or lawful detention can be confusing.
DMV Hearings: 0.01% or More BAC While on DUI Probation
The DMV must prove these issues at the DMV Hearing for those on DUI Probation:
- Did the peace officer have reasonable cause to believe you were driving a motor vehicle in violation of §23154 VC?
- Were you lawfully detained and/or lawfully arrested?
- Were you driving a motor vehicle with 0.01% BAC or more by weight of alcohol while on DUI probation?
First and subsequent violations → 1-year suspension.
The APS DUI Violation of Probation is in addition to any other APS/PAS action imposed due to the same offense when the following applies:
• 21 years of age or older and the BAC level is 0.08% or more, or
• You are 21 years of age or older and your BAC is 0.04% or more while operating a commercial motor vehicle, or
• You are under the age of 21 operating a motor vehicle with a BAC of 0.01% or greater.
DMV Refusal Hearing Violation of DUI Probation
The DMV must prove these issues at the DMV Refusal Hearing for those on DUI Probation:
- Did the peace officer have reasonable cause to believe you were driving a motor vehicle in violation of §23154 VC?
- Were you lawfully detained?
- Were you told your driving privilege would be suspended or revoked for one, two, or three years if you refused to submit to, or failed to complete a chemical test?
- Did you refuse to submit to or fail to complete a chemical test after being requested to do so by a peace officer?
If you Refused and have 1 prior DUI and are currently on DUI probation → 2-year revocation.
If you Refused and have 2 prior DUIs and are currently on DUI probation → 3-year revocation.
How Do I Win A DMV Hearing If I am On DUI Probation, I Got Arrested For My Third DUI and My BAC Was Over .20?
If pulled over for DUI, contact The Law Office of Richard Wagner, A Professional Corporation, to get your DMV Hearing set up, avoid the automatic suspension of your driver's license, and help you get a restricted license, call 714-721-4423. FREE CONSULTATION.
- California DUI FAQs
- Understanding DUI Breath Tests in California
- DUI Speed Enhancement
- Do I Need A Lawyer for My First DUI?
- DUI License Restrictions and Suspensions
- DUI Drugs
- Orange County DUI Attorney
- DUI Causing Injury - Felony or Misdemeanor
- Refusing to Take Breath and Blood Tests
LEGAL AUTHORITIES
1 California Vehicle Code Section 13353.2(a), says, "The department shall immediately suspend the privilege of a person to operate a motor vehicle for any one of the following reasons: (1) The person was driving a motor vehicle when the person had 0.08 percent or more, by weight, of alcohol in his or her blood. (2) The person was under 21 years of age and had a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test, or other chemical test. (3) The person was driving a vehicle that requires a commercial driver's license when the person had 0.04 percent or more, by weight, of alcohol in his or her blood. (4) The person was driving a motor vehicle when both of the following applied: (A) The person was on probation for a violation of Section 23152 or 23153. (B) The person had 0.01 percent or more, by weight, of alcohol in his or her blood, as measured by a preliminary alcohol screening test or other chemical test."
2 See, California Vehicle Code Section 13353. Effect of refusal of request to submit, or failure to complete, chemical test. Subdivision(e), says, "The person may request an administrative hearing pursuant to Section 13558."
3 California Vehicle Code Section 13357(3), says, "If the department determines in the review of a determination made under Section 13353.2, by the preponderance of the evidence, all of the following facts, the department shall sustain the order of suspension or revocation ... (A) The peace officer had reasonable cause to believe that the person had been driving a motor vehicle in violation of Section 23136, 23140, 23152, 23153, or 23154. (B) The person was placed under arrest or, if the alleged violation was of Section 23136, the person was lawfully detained. (C) The person was driving a motor vehicle under any of the following circumstances: (i) When the person had 0.08 percent or more, by weight, of alcohol in his or her blood."
4 California Vehicle Code Section 13353.3 says,
(b) The period of suspension of a person's privilege to operate a motor vehicle under Section 13353.2 is as follows:
(1)
(A) If the person has not been convicted of a separate violation of Section 23103, as specified in Section 23103.5, or Section 23140, 23152, or 23153, or Section 191.5 or subdivision (a) of Section 192.5 of the Penal Code, the person has not been administratively determined to have refused chemical testing pursuant to Section 13353 or 13353.1 of this code, or the person has not been administratively determined to have been driving with an excessive concentration of alcohol pursuant to Section 13353.2 on a separate occasion, which offense or occurrence occurred within 10 years of the occasion in question, the person's privilege to operate a motor vehicle shall be suspended for four months, except as provided in subparagraph (B).
5 California Vehicle Code Section 13353.3 says,
(b) The period of suspension of a person's privilege to operate a motor vehicle under Section 13353.2 is as follows:
(2)
(A) If the person has been convicted of one or more separate violations of Section 23103, as specified in Section 23103.5, or Section 23140, 23152, or 23153, or Section 191.5 or subdivision (a) of Section 192.5 of the Penal Code, the person has been administratively determined to have refused chemical testing pursuant to Section 13353 or 13353.1 of this code, or the person has been administratively determined to have been driving with an excessive concentration of alcohol pursuant to Section 13353.2 on a separate occasion, which offense or occasion occurred within 10 years of the occasion in question, the person's privilege to operate a motor vehicle shall be suspended for one year, except as provided in subparagraph (B).
