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DMV Hearings Based on Chemical Test Refusals

Drivers arrested on suspicion of DUI / DWI in California are often unaware that they must request a DMV hearing within 10 days or risk an automatic driver’s license suspension. If the Department of Motor Vehicles hearing officer finds that police had probable cause to make a lawful arrest and that the driver’s blood alcohol content (BAC) was .08 percent or greater, the license will be suspended.

Some drivers believe they can avoid a license suspension by refusing to take a chemical test, but the DMV can actually suspend the driver’s license for a longer period of time because of a chemical test refusal. Anyone arrested for driving under the influence in California should contact the experienced DUI / DWI defense lawyers at The Kavinoky Law Firm to learn about the options available to motorists accused of drunk driving in California.

In California and every other U.S. state, it is illegal to operate a motor vehicle with a BAC of .08 percent or greater. These laws are known as “per se” laws. Like California, many states have an administrative process in effect to suspend a driver’s license after a DUI / DWI arrest, regardless of whether the driver is convicted in criminal court. In California, the driver is entitled to an administrative “per se” hearing from the Department of Motor Vehicles to determine the status of the license.

California’s implied consent law mandates that any driver arrested on suspicion of DUI / DWI must submit to a chemical test of the blood, breath or urine to determine BAC. This requirement is so important to drunk driving prosecutions that both the courts and the Department of Motor Vehicles impose strict punishment on drivers who refuse to comply. In a criminal trial, the prosecutor can use a refusal as evidence of consciousness of guilt, and the DMV can impose an even longer license suspension than if the driver is found to have violated California’s per se law.

California Department of Motor Vehicles APS hearings are extremely complex and technical. Unlike in criminal court, evidence is typically introduced in the form of police reports and chemical test results, not live witness testimony. The DMV must prove the driver’s guilt by a preponderance of the evidence, not beyond a reasonable doubt. This is a much lower legal standard than in criminal court, and means the driver enjoys far fewer constitutional protections. Finally, DMV hearings are very unusual in at least one respect – the “prosecutor” and “judge” are the same person – the DMV hearing officer. This means that the individual who presents the evidence and the individual who rules on the evidence are the same person.

The process involved in a DMV hearing where the driver refused to submit to a chemical test is slightly different than those hearings where the driver consented. Like those hearings involving drivers who consented to chemical tests, the DMV hearing officer will determine whether police had probable cause to make an arrest, and whether that arrest was lawful. In cases where the driver refused, the DMV hearing officer will also establish whether the driver indeed declined the test, and whether he or she was advised of the consequences of doing so. If all of these elements are proven, the driver’s license will be suspended.

However, suspension of the driver’s license is far from automatic, even when the driver refused a chemical test. There are several valid defense strategies that can win the DMV hearing and preserve the driver’s license. In some cases, chemical test refusals can be excused if a valid reason existed. For example, some drivers have medical conditions, such as emphysema, that prevent them from blowing into a breath-testing machine. However, instead of giving the driver a blood test instead, police may record this as a refusal.

Ultimately, the DMV hearing that occurs after a California drunk driving arrest can be fought and won with a top defense attorney at the driver’s side. The knowledgeable DUI / DWI defense lawyers at The Kavinoky Law Firm are experienced in every aspect of defending a DMV APS hearing and the accompanying criminal case. A skilled attorney can answer any questions about the DMV hearing process during a free consultation.