The real short answer to winning a DMV hearing is to have an angle and that angle has to be sufficient to upend the DMV's case against you so they just set it aside because they don't feel that they can prove that you were driving under the influence of alcohol. There's a whole bunch of different ways to do that and they're fact specific.If somebody is not driving when the police get their hands on them and now the police are attempting to figure out if they were driving and when they were driving, that's always been an angle against the DMV, to say, wait a minute.
If my client has to be driving the vehicle in order to get a DUI, of course, if you're the only one in the middle of the freeway outside your vehicle, the police are going to surmise that you're the one that must have driven it and they're also going to ask you, did you drive this car?
When did you drive? So, that's the way the DMV will try to get out of it. They'll say the police have evidence that your client was driving it ten minutes earlier.
DUI Blood and Breath Tests
So, driving is definitely one of the angles — and not only driving, but you get your blood or breath taken and let's assume for purposes of trying to figure this out that you're over a .08 — the next question is, if I was a .08 at 10pm, what was I when I was driving? And when was I driving?
So, that's always another angle. Anytime somebody is not driving their car at the time, that's not an automatic win because the police know that's a problem and they're going to try to fill in the gaps for the DMV and for the court as well. But, that's always an angle to try to win your DMV case.
Unlawful Police Stop?
Another angle is, you have to look at what the DMV is trying to prove here and then if you could attack those things, then you'll be in a position to try to win the case. So, the three things the DMV always says they're trying to prove is: (1) was the defendant legally stopped? Or you have to add extra onto it, because a lot of times they're not stopped by the police.
An accident happens where everyone is outside of their vehicle talking and the police come up — that's not a stop. So, it goes a little bit deeper than that. Was the person illegally stopped or did the police legally come in contact with them. Those are the two things you're going to look at when you're assessing this issue of whether or not the police legally stopped you.
The next question is, did they legally arrest you? The DMV believes apparently that you can't just be illegally arrested. If you're illegally arrested, they'll throw the whole case out. The problem is, that the police are going to lie or tell the truth and say that you didn't pass the field sobriety tests.
They feel you're not safe to drive and that's why they're arresting you. If the DMV believes that and if the police can show evidence of that, then they'll be able to get by that hurdle, but they can't just be grabbing people for no reason. They can't just be pulling people over for no reason. If you can prove that — either through video or some other form of evidence — then you can win the DMV hearing.
Blood Alcohol Level
The last thing is, your blood alcohol level has to be a .08 or greater. If they can't prove that your blood alcohol is a .08, they're not going to take your driver's license. That happens all the time. People get busted and blow a .07. The DMV is not going to get them for that. You need to be a .08 or greater. So, if they cannot prove that you're a .08 or greater then they're not going to take your license away.
There is an exception to that. If you refuse to take the test. You see, there's a presumption in the law that if you refuse to take the test — because driving in California is a privilege, not a right — and part of your test is they tell you that if the police think you're drinking and driving, you must cooperate; you must take the test.
So, if you're a refusal and the DMV can prove that and they can also prove that the police told you that if you don't take this test then you're going to lose your driver's license for a year, then they can get passed that hurdle as well, even if they don't have a .08 or greater.
The policy behind this is, if people could just say they're not taking the test and that's the end of it, then everybody would do that and nobody would get caught for a DUI.
So, they're not going to allow that to happen. I would almost say that 99% of the time, if the police are asking you take the test you should take it because on a first-time DUI for example, even if you blow over a .08 — you're only going to lose your license for a real thirty days and you can get it back on a restricted basis; but, if you refuse to take the test you lose your license for a year with no restriction. So, why would somebody take that risk? It just doesn't make any sense.
I don't like people talking to the police because they usually same something that's going to incriminate them, but you do need to cooperate with the police, otherwise you're going to lose your driver's license for a year. So, there are ways to beat the DMV as it relates to a DMV hearing, but you have to look at what they're trying to prove.
Hedding Law Firm
16000 Ventura Blvd #1208
Encino, CA 91436