Department Of Motor Vehicles
Anyone arrested for driving under the influence and has their license taken has 10 days to schedule a hearing with their local DMV office (via telephone or in person) and fight to have their license returned.
You can have your license suspension ‘STAYED’. This means that when you schedule to have a hearing from the DMV, your license suspension will be temporarily put on hold and you will be given full privileges (the automatic license suspension that would have gone into effect after 30 days after your stop will NOT go into effect) until the hearing and then the merits of your case will be heard.
The Department of Motor Vehicles regulates licensing and takes administrative and disciplinary action which is separate and apart from a criminal proceeding involving driving under the influence of alcohol.
The Department of Motor Vehicles (DMV) proceeding is quite different than the courtroom proceeding in a criminal matter. The hearings are more informal, and are run by a Driver Safety Office (DSO) Hearing Officer, who is an employee of the Department of Motor Vehicles and is not a lawyer, much less a judge. The standard of proof in these hearings is a “preponderance” of the evidence, a much lower standard than criminal court.
Many DSO Hearing Officers do not fully understand the law as it relates to driver’s license suspension, or are afraid to rule in favor of a Licensee as they see it as their job to support the Department of Motor Vehicles.
This makes administrative hearings with the DMV somewhat problematical. However, our office has been successful in winning these hearings as we make a special effort to clarify the issues for the hearing officer, as well as using their own training materials and internal memoranda as authority for our position. We also do full discovery, issuing subpoenas for the arresting officer’s training records, and the maintenance and calibration records for any machine used to give a blood alcohol test to our client.
These hearings are very technical, and the chances of a person winning without legal help is slim. DMV does not care if you need to drive for work or school purposes.
What Are The Issues At The DMV Hearing?
One issue that is NOT on the table are hardship licenses. The DMV does not issue these licenses for Admin Per Se actions. What is on the table is:
1. Were you driving the car?
2. Were you legally stopped?
3. Were you legally arrested?
4. Did you take a test and was it legally administered?
5. Were your results .08 or above?
These are primarily all legal questions which require the assistance of an experienced attorney.
What Are My Legal Rights At A DMV Administrative Hearing?
You have the right to be represented by an attorney at your own expense. You have the right to review the evidence and to cross examine the testimony of any witnesses for the department, and to present evidence and witnesses on your own behalf, as well as the right to testify on your own behalf.
Following the hearing, you have the right to be provided a decision in writing. Should the decision resulting from the hearing be against you, you have the right to request the department to conduct an administrative review of the decision, as well as the right to appeal the decision to superior court.
Requests for the administrative review or to appeal the decision in court must be made within a certain time period dependent on the type of hearing and as described in the Vehicle Code. These time periods and other specific information concerning your rights will be stated on the notice containing the hearing decision.
How Do I Schedule A Hearing?
Check the notice you received advising you of the action against your driving privilege. If the notice indicates you have the right to a hearing, you have ten days following receipt of the notice to request a hearing.
You may do so by writing to or telephoning one of the department’s Driver Safety Offices. Be sure to identify yourself by your full name, your driver license number, and your date of birth. You will also be asked to verify your correct mailing address.
What If I Do Not Appear At The Hearing?
If you request a hearing and do not attend the hearing, the department will proceed with the case against you.