As discussed on our DMV HEARINGS page, if you are arrested for DUI the officers are required by California law to serve a "notice of driving privilege suspension/revocation" order in any of the following circumstances: 1) the person submits to a breath test with the results showing .08 or higher blood alcohol content (BAC); 2) the person submits to a blood or urine test, and the officer reasonably believes that the results will show a .08 or greater BAC; 3) the driver is under 21 years old, or is on probation for DUI, and submits to a preliminary alcohol screening test or evidentiary breath test with results showing a .01 or greater BAC; or 4) the driver refuses to submit to a breath or blood test following a DUI arrest. When any of these situations happen, the police officer sends a copy of the notice to the DMV. This triggers a DMV Administrative Per Se (APS) action against the person's privilege to drive. The driver must request a hearing within 10 days of receiving this notice or they will not get an opportunity to contest the action. This means their driver's license will automatically be suspended.
DMV hearings are very difficult for the driver. The hearing officer acts as both the prosecutor and the judge. Surprisingly, this is allowed under California law. There is also a much lower burden of proof for DMV hearings than in criminal cases. The evidence in a criminal case must show that the person is guilty "beyond a reasonable doubt." In DMV hearings, the burden is much lower. DMV only needs to prove its case by a "preponderance of the evidence." So what does DMV need to prove? This answer depends on what type of hearing is being held.
HEARING WHERE DRIVER IS .08 OR HIGHER BAC
When the APS action is based on the allegation that the driver's BAC was over the legal limit, DMV must establish, by a preponderance of the evidence, each of the following: 1) the police officer had reasonable cause to believe the person was driving in violation of Vehicle Code Section 23152 (DUI); 2) the person was placed under lawful arrest; and 3) the person was driving when they had a blood alcohol content of .08 or greater. Each element must be proven in order for the APS action to be upheld, which results in the person's license being suspended. If any one of the elements is not met, the action must be set aside (this is the equivalent of "not guilty" in criminal court). For example, Gaby was found by a police officer in a parked car with the engine running (lawfully parked in a parking lot). Following a DUI investigation, she was arrested. This was an unlawful arrest because the law is that the driving must occur in the arresting officer's presence unless there has been an accident or the vehicle is found blocking the road. The officer here did not see Gaby driving, she was already parked, nor was there an accident or was her vehicle blocking the road. Since element #2 could not be proven by DMV, Gaby's driver's license will not be suspended. Similarly, if it can be established that the BAC result is not .08 or greater or, if a blood test, the blood was not drawn in a medically approved manner, then element #3 cannot be met and action will be set aside.
HEARING WHERE DRIVER REFUSED TO TAKE BREATH OR BLOOD TEST
When a person is lawfully arrested for DUI, they are required to submit to a breath or blood test. This is required by California's implied consent law. In a refusal hearing, DMV must prove the following: 1) the police officer had reasonable cause to believe the person was driving in violation of Vehicle Code Section 23152 (DUI); 2) the person was placed under lawful arrest; 3) the driver was advised that if he/she refused a test, or failed to complete a test, that their driver's license would be suspended for 1 year or revoked for 2 or 3 years; and 4) the person refused to submit to or failed to complete a test after being requested to do so by a police officer. Similar to the actions involving a BAC of .08 or higher, if any one of the elements is not met, the action must be set aside. For example, Michael was confused when the officer read him his Miranda rights, which say that he has the right to an attorney, and then read him California's implied consent admonition which informs the person that he or she "does not have the right to have an attorney present before stating whether he or she will submit to a test or tests, before deciding which test or tests to take, or during administration of the test or tests chosen." Michael asked the officer for clarification, however the officer ignored him. The law says that if the driver is confused due to the fault of the police officer, the police officer must re-advise. The action taken against Michael's driver's license should be set aside since he did not "willfully" refuse to submit to a test.
If you are facing a DMV administrative action against your driver's license because you have been arrested for DUI, CONTACT our office immediately for a free and confidential consultation. DMV hearings are difficult and stacked against the driver. It is best to have the assistance of a knowledgable DUI Lawyer. Berglund Law Office, P.C. specializes in representing individuals facing DUI criminal charges and DMV APS actions.