The honest 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 are many different ways to do that, and they're fact-specific. If somebody is not going 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 to get a DUI, of course, if you're the only one in the middle of the freeway outside your car, 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 going it ten minutes earlier.

So, driving is 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 10 pm, what was I when I was driving? And when was I going?

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 the court as well. But that's always an angle to try to win your DMV case.

Unlawful Police Stop?

Another angle is that you have to look at what the DMV is trying to prove here, and then if you could attack those things, 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 are: (1) was the defendant legally stopped? Or you have to add extra onto it because a lot of times they're not controlled 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 contact them. Those are the two things you're going to look at when you're assessing this issue of whether or not the police lawfully stopped you.

Legal Arrest?

The next question is, did they legally arrest you? The DMV believes apparently that you can't just be detained illegally. If you're detained unlawfully, they'll throw the whole case out. The problem is that the police will 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 the police can show evidence of that, 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 .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. It would help if you were a .08 or greater. So, if they cannot prove that you're a .08 or greater, they're not going to take your license away.

There is an exception to that. Suppose 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 confirm 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 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 to 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 whole thirty days and you can get it back on a limited 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 will 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.