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DMV Refusal Hearing: Definition & 10 Steps To Take to Win!

A DMV refusal hearing, often required after a driver refuses to submit to a chemical test during a DUI (Driving Under the Influence) arrest, is a critical aspect of DUI law and procedure. The primary purpose of a DMV refusal hearing is to review the circumstances around a driver’s refusal to take a chemical test when lawfully requested by a police officer during a DUI investigation. The hearing determines whether the driver’s license should be suspended or revoked based on that refusal.
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What is a DMV Refusal Hearing?

According to SCLG, under California’s “implied consent law“, if you’re arrested for DUI, refusing to undergo chemical testing for blood or breath can lead to significant consequences, including the suspension of your driving privileges by the California Department of Motor Vehicles (DMV) [1].

A DMV refusal hearing is an administrative per se hearing, conducted by the DMV, where you can challenge your license suspension for refusing the chemical test. The hearing is sometimes referred to as an “APS hearing,” or an “admin per se hearing – SCLG 

It’s critical to note that to potentially prevent your license from being suspended, you must request a DMV hearing within 10 days of your arrest. Missing this deadline means forfeiting your right to contest the suspension, leading to the automatic suspension of your driving privileges by the DMV.

When you request a hearing, the enforcement of your license suspension is put on hold until the hearing’s conclusion. Winning this hearing could result in maintaining your driving privileges.

The hearing itself takes place not in a criminal court but at a DMV driver safety office and is overseen by a DMV hearing officer, who is not a judge and may lack formal legal training.

At this hearing, you are entitled to several legal rights, which the DMV must respect. These rights include:

  • Being represented by a criminal defense or DUI attorney
  • Reviewing the evidence that the DMV plans to use against you
  • Present your own evidence in your defense
  • Issuing subpoenas and presenting witnesses to support your case
  • Testifying on your own behalf
  • Appealing the decision if it goes against you

Understanding these aspects and preparing accordingly with professional legal help can significantly impact the outcome of a DMV refusal hearing, offering a chance to preserve your driving rights.

What Happens at the Hearing?

According to DMV, the driver is first informed of the legal actions against them, and then given the chance to challenge the DMV’s evidence, and attempt to persuade the Driver Safety Hearing Officer to modify or rescind the action [2]. The rules that govern DMV refusal hearings can be found in the California Vehicle Code (CVC), the Government Code (Administrative Procedures Act), and in various Appellate and Supreme Court rulings.

Following the hearing, the Driver Safety Hearing Officer will make a decision to uphold (sustain), modify, or rescind (set aside) the DMV action.

How to Win a DMV Hearing

A skilled DUI defense attorney can meticulously analyze the police report and all associated evidence to identify the most robust defenses for challenging your administrative suspension.

Here are ten powerful defense arguments that could be used during a DMV hearing:

1. The officer did not have probable cause to stop you: Officers cannot pull a car over without reason. If you were obeying all traffic laws prior to being pulled over, there is a strong case the officer did not have probable cause to stop you.

2. Inaccurate BAC Reading: Various factors, such as a rising blood alcohol concentration (BAC), certain medications, a low-carb diet, or medical conditions like acid reflux or GERD, can skew BAC results, leading to false positives.

3. Malfunctioning BAC Test Equipment: Breathalyzer devices require regular maintenance and calibration. If there’s evidence that the equipment was malfunctioning or wasn’t calibrated properly, the BAC results may be deemed unreliable.

4. Non-compliance at DUI Checkpoints: While DUI checkpoints are legal, they must adhere to strict guidelines, including random vehicle screening, public notification prior to the checkpoint, and supervision by commanding officers. Failure to meet these requirements can invalidate an arrest made at such checkpoints.

5. No Evidence of Driving: In California, DUI conviction requires proof of “volitional movement” of the vehicle. If there’s no evidence that you were driving, charges may not stand, as merely being in or around the vehicle is not sufficient for a DUI charge.

6. Inadequate Observation Period: California law mandates a 15-minute observation period before administering a breathalyzer to ensure that the subject doesn’t eat, drink, or vomit. Flaws in this procedure can invalidate the test results.

7. Improper Training in Administering Tests: If the officer conducting the sobriety or breath tests wasn’t properly trained, the validity of the test results can be questioned.

8. Requirement for Two Breath Samples: The protocol requires two breath samples that must be within .02 grams per 1 Liter of blood alcohol content of each other. Failure to meet this criterion can make the results inadmissible.

9. Failure to Inform About Test Refusal Consequences: Officers must clearly explain the consequences of refusing to take a chemical test. A lack of clear communication on this can render a refusal invalid.

10. Errors in the Police Report: Mistakes or omissions in the police report, such as a blank DS367 form (used to justify probable cause) or inaccuracies in the details, can significantly weaken the prosecution’s case. If errors are substantial, they might prevent a license suspension.

These defenses, if effectively argued by a knowledgeable DUI attorney, can significantly impact the outcome of a DMV hearing and potentially save your driving privileges.

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