DUI DMV Hearing FAQ

An Administrative Per Se (APS) hearing is a civil administrative proceeding conducted by the California Department of Motor Vehicles to determine whether your driver's license should be suspended following a DUI arrest. This hearing is completely separate from your criminal DUI case in court. The APS hearing focuses solely on whether you were lawfully arrested, whether the officer had reasonable cause to believe you were driving under the influence, and whether your BAC was 0.08% or higher (or 0.01% for underage drivers or those on DUI probation). The hearing does not determine guilt or innocence of the criminal DUI charge.

The key differences between the DMV hearing and criminal court include the standard of proof (preponderance of evidence at DMV versus beyond reasonable doubt in criminal court), the decision-maker (DMV hearing officer versus judge or jury), the potential consequences (license suspension only at DMV versus jail, fines, probation, and license suspension in criminal court), rules of evidence (more relaxed at DMV, hearsay often admitted), and timing (DMV hearing typically occurs before criminal trial). You can lose one proceeding and win the other. Winning your DMV hearing prevents administrative suspension but doesn't dismiss criminal charges, while winning your criminal case doesn't automatically reinstate a license suspended by DMV. Because these are separate proceedings, strategic coordination between your DMV hearing and criminal case is essential, which is why most DUI attorneys handle both simultaneously.

After a DUI arrest in California, you have only 10 calendar days from the date of arrest to request an Administrative Per Se (APS) hearing with the DMV. This deadline is strictly enforced under Vehicle Code Section 13558. The 10-day period begins the day after your arrest, and the request must be received by the DMV within this window, not just postmarked. If you miss this critical deadline, your license will be automatically suspended on the 30th day after arrest without any hearing or opportunity to challenge the suspension. This is one of the most important deadlines in DUI cases and is frequently missed by people who don't immediately contact an attorney after arrest.

You can request the hearing by calling the DMV Driver Safety Office phone number listed on the suspension order form you received at arrest, by mailing a written request to the address on the suspension form, by having your attorney submit the request on your behalf (recommended), or in some counties, through online submission. When you request the hearing within 10 days, the DMV automatically issues a stay of suspension that allows you to keep driving with full privileges until the hearing is conducted and a decision is rendered. This stay can last several weeks or even months, giving you valuable time to prepare your defense and maintain your ability to drive to work and fulfill other obligations. If you miss the 10-day deadline, you lose this stay and your license suspends automatically on day 30, though you may be able to request a late hearing in limited circumstances, such as if you were hospitalized after the arrest. However, late hearings don't grant a stay, so your license will be suspended during the hearing process.

The DMV hearing officer will decide four specific issues at your APS hearing under Vehicle Code Section 13557. These issues are: (1) whether the peace officer had reasonable cause to believe you were driving under the influence, (2) whether you were lawfully arrested, (3) whether you were driving a motor vehicle with a BAC of 0.08% or more (or 0.01% for certain drivers), and (4) for refusal cases, whether you refused or failed to complete a chemical test after being properly admonished. The DMV must prove each element by a preponderance of the evidence, meaning it's more likely than not that each element is true.

Reasonable cause requires the officer to have specific, articulable facts justifying the belief you were driving under the influence, such as erratic driving, odor of alcohol, slurred speech, failed field sobriety tests, or admission of drinking. A lawful arrest requires compliance with Fourth Amendment protections and California arrest procedures, including proper advisements and probable cause. The BAC element requires reliable chemical testing showing you were at or above the legal limit while driving, not just when tested (this is where rising BAC defense comes into play). For refusal cases, the DMV must prove the officer properly explained the consequences of refusal and you willfully refused to complete testing. The hearing officer's decision must address each of these issues separately, and the DMV must prevail on all elements to sustain the suspension. If you win on any single issue, the suspension should be set aside. This focused scope means DMV hearings are narrower than criminal trials, which consider additional factors like actual impairment, Miranda rights, and sentencing considerations.

A stay of suspension is a temporary postponement of your license suspension that allows you to continue driving with full privileges while waiting for your DMV hearing and its outcome. When you request an APS hearing within 10 days of arrest, the DMV automatically issues a stay of suspension under Vehicle Code Section 13558(c). This stay remains in effect until the hearing is held and a decision is issued, which can take several weeks or months. During this time, you can drive normally without restrictions, as if the DUI arrest never occurred from a licensing perspective.

The stay is critically important because it prevents immediate license suspension and maintains your ability to drive to work, school, medical appointments, and other essential activities while you fight the suspension. To obtain the stay, you simply need to request the hearing within 10 days; there's no separate application for the stay itself. Once the hearing is requested, the temporary license the officer gave you at the time of arrest continues to be valid until the DMV sends you a notice with the hearing date and decision. If you win the hearing, the stay becomes permanent and your license is returned with no suspension. If you lose the hearing, the stay lifts and the suspension goes into effect, though you may be eligible for a restricted license. If you request continuances of the hearing, the stay continues through each continuance, potentially extending your full driving privileges for many months. However, if you fail to appear for the scheduled hearing, the DMV will issue a default decision suspending your license and the stay will end. It's also important to note that the stay only applies to the administrative suspension; if your license is also suspended by the criminal court upon conviction, that's a separate suspension that isn't stayed by the DMV hearing request.

Yes, it's entirely possible to win your DMV hearing and avoid license suspension even if you're later convicted of DUI in criminal court, or vice versa. The DMV hearing and criminal case are completely separate proceedings with different standards of proof, different issues being decided, and different rules of evidence. The DMV hearing uses the lower preponderance of evidence standard (more likely than not), while criminal court requires proof beyond a reasonable doubt. This means evidence that's insufficient for criminal conviction might still support DMV suspension, or technical defects that win your DMV hearing might not prevent criminal prosecution.

Common scenarios where you might win one but lose the other include Title 17 violations in blood testing that invalidate DMV evidence but don't necessarily defeat criminal charges if other evidence exists, rising BAC defense that shows BAC was below 0.08% while driving but rose above the limit by the time of testing (wins DMV hearing but prosecution can still argue impairment under VC 23152(a)), plea bargain to wet reckless in criminal court (no criminal DUI conviction) but DMV still imposes suspension based on BAC results, and unlawful stop issues that exclude evidence in criminal court but DMV hearing focuses on arrest and BAC, not the initial stop. Additionally, the timing is usually different: DMV hearings typically occur within 1-4 months after arrest, while criminal cases can take 6-18 months or longer to resolve. This means you'll often know your DMV hearing outcome before your criminal case concludes. An experienced DUI attorney can use favorable DMV hearing outcomes as leverage in criminal plea negotiations, or conversely, may strategically time the DMV hearing to occur after preliminary hearing in criminal court to obtain officer testimony under oath that can be used at the DMV hearing.

At a DMV APS hearing, both you and the DMV can present various types of evidence under Vehicle Code Section 13557 and California Code of Regulations Title 17. The DMV typically presents the officer's sworn statement (DS-367 form) describing the arrest circumstances, chemical test results from blood or breath analysis, arrest report and officer notes, vehicle impound records, and any dashcam or bodycam video if available. The officer's sworn statement often substitutes for live testimony, as officers rarely appear at DMV hearings unless subpoenaed. This hearsay evidence is admissible at DMV hearings even though it would be excluded in criminal court.

You can present witness testimony including your own testimony and any passenger witnesses who can contradict officer observations, expert testimony from toxicologists or DUI experts challenging BAC results or testing procedures, Title 17 violations in blood or breath testing (such as improper observation periods, uncalibrated equipment, or improper storage), proof of rising BAC defense showing your BAC was below legal limit while driving but rose by testing time, evidence challenging reasonable cause for the stop (such as dash cam video showing normal driving), medical conditions affecting field sobriety tests (inner ear problems, knee injuries, neurological conditions), and documentation of improper arrest procedures or Miranda violations. You can also subpoena the arresting officer to cross-examine them, subpoena blood samples for independent testing, subpoena calibration and maintenance records for breath testing devices, and present documentary evidence like witness statements, medical records, or expert reports. The hearing officer has discretion to exclude irrelevant or overly repetitive evidence, but generally applies relaxed evidentiary standards compared to criminal court. Strategic presentation of evidence is crucial, as the hearing typically lasts only 30-90 minutes and you must efficiently establish weaknesses in the DMV's case while affirmatively proving your defense theories.

A typical DMV APS hearing lasts 30 minutes to 2 hours depending on the complexity of issues and amount of evidence presented. The hearing is usually scheduled 4-12 weeks after you request it, though you can request continuances for good cause such as needing more time to gather evidence or coordinate with your criminal case. Most hearings are conducted by telephone conference call, though you can request an in-person hearing at a DMV Driver Safety Office. The hearing officer acts as both judge and prosecutor, presenting the DMV's evidence and ruling on objections and final decision.

The hearing process follows this general sequence: opening statements where the hearing officer explains the issues and procedures, DMV presentation of evidence including officer sworn report, chemical test results, and arrest documents, your opportunity to cross-examine DMV evidence and raise objections, your presentation of evidence including testimony, expert witnesses, and documentary evidence, DMV opportunity to respond to your evidence, closing arguments from both sides summarizing key points, and hearing officer decision issued either immediately or within several weeks by mail. During the hearing, you have the right to object to evidence, subpoena witnesses and documents, present your own evidence and testimony, cross-examine witnesses, be represented by an attorney, and make legal arguments. The hearing is recorded, and you can request a copy of the recording for appeal purposes. After the hearing, the officer typically issues a written decision within 1-4 weeks explaining their findings on each of the four statutory issues and whether the suspension is sustained, set aside, or modified. The decision notice will also inform you of appeal rights and restricted license eligibility if the suspension is upheld.

If you lose your DMV APS hearing, the hearing officer will issue a suspension order that goes into effect immediately or on a specified future date. For a first-time DUI with BAC 0.08% or higher, you'll face a 4-month suspension under Vehicle Code Section 13353.3. For first refusal cases, the suspension is 1 year under VC 13353. Second and subsequent offenses carry longer suspension periods of 1-3 years depending on your record. The suspension date is usually either the date the decision is mailed or 1-2 weeks after the decision to allow you time to arrange alternative transportation.

However, losing your DMV hearing doesn't mean you lose all driving privileges. You may be eligible for a restricted license that allows you to drive to and from work, during work hours if your job requires driving, and to and from DUI classes. To obtain a restricted license for a first offense, you must serve a 30-day hard suspension, install an ignition interlock device (IID) in all vehicles you operate, enroll in a DUI education program, file an SR-22 insurance certificate proving financial responsibility, and pay the $125 license reissue fee. With the IID-restricted license, you can drive anywhere at any time as long as the device is installed. Without an IID, traditional restricted licenses are more limited. For second and subsequent offenses, you'll face longer hard suspension periods (1-2 years) before restricted license eligibility. After losing your hearing, you also have appeal options including administrative review by DMV supervisors (must be requested within 15 days) or writ of mandate in superior court (must be filed within 90 days). These appeals rarely succeed but can provide additional time to drive under a stay while the appeal is pending if you request and obtain a stay of suspension from the court.

Yes, you have the right to appeal an adverse DMV APS hearing decision through two possible methods. You can request administrative review by a DMV Mandatory Actions Unit supervisor under Vehicle Code Section 14400.1 within 15 days of the hearing decision. This internal review examines whether the hearing officer properly applied the law and considered all evidence, though it rarely results in overturning the original decision. The administrative review is essentially asking DMV management to review their own employee's decision, so success rates are very low (under 5%). However, it's a quick and free process that can occasionally identify clear errors in the hearing officer's analysis.

The more effective but expensive option is filing a writ of mandate (also called writ of administrative mandamus) in superior court under Code of Civil Procedure Section 1094.5. This is a lawsuit challenging the DMV's decision as unsupported by evidence or contrary to law. You must file the writ within 90 days of the hearing decision. The court reviews the DMV hearing record to determine if the findings are supported by substantial evidence and whether the DMV abused its discretion or made legal errors. Unlike administrative review, the court is independent of DMV and more likely to find errors. You can request a stay of suspension while the writ is pending, which if granted, allows you to continue driving during the court review process (which can take 6-12 months). Writ proceedings typically cost $2,500-$7,500 in attorney fees and have success rates of 10-30% depending on the strength of your case. Common grounds for winning a writ include failure to prove one of the four statutory elements, improper admission of evidence, failure to properly consider your evidence, Title 17 violations in chemical testing that weren't properly analyzed, or clear errors in applying the law. If you win the writ, the court orders DMV to set aside the suspension and your license is returned.

While you have the right to represent yourself at a DMV APS hearing, hiring an experienced DUI attorney significantly increases your chances of success. Unlike criminal court, you do not have a constitutional right to appointed counsel for DMV hearings, so if you cannot afford a private attorney, you must represent yourself. However, the complexity of DMV hearings makes attorney representation highly valuable. Attorneys familiar with DMV procedures know how to effectively cross-examine the DMV's evidence, identify Title 17 violations in chemical testing, present expert testimony on rising BAC and other technical defenses, subpoena and question the arresting officer, navigate evidentiary objections and procedural rules, and coordinate DMV hearing strategy with your criminal case to avoid creating damaging admissions.

Statistics show that represented defendants win DMV hearings at significantly higher rates (approximately 20-40%) compared to self-represented individuals (under 10%). Attorneys can also request and obtain continuances more easily to allow time for evidence gathering and coordinate with criminal case developments. They have relationships with DMV hearing officers and understand local practices and which defenses are most effective in particular offices. The cost of attorney representation for a DMV hearing typically ranges from $500-$1,500 if you're already retaining them for the criminal case, or $1,000-$2,500 for DMV hearing only. This investment is usually worthwhile when you consider the cost of license suspension: loss of employment or income from inability to drive to work, increased insurance premiums (thousands of dollars over several years), costs of alternative transportation, ignition interlock device expenses, and restricted license fees. Even if you ultimately lose the hearing, attorney representation often results in obtaining multiple continuances that extend your stay of suspension for many months, giving you additional time to drive while preparing your criminal defense and making arrangements for potential suspension.