First off, the prosecutors at a DMV hearing are the hearing officers themselves.  So, non-lawyers are putting on the Department of Motor Vehicles evidence.  They have to put on the evidence, and then they rule on all admission of evidence, including their evidence.

For instance, the hearing officers might present a police report.  The defense attorney, representing the accused, may object to the report, citing hearsay since the police are not present to testify. However, the objection can be overruled, and the police report is admitted into evidence.

If it's a close call on a case or if they have some problems on a case just based on the face of the police report, then what they will do is send a subpoena to the police officer who was arrested for the DUI, and that person will testify live on the phone.

First, the DMV hearing officer will ask the accused questions, and then the defense attorney can ask some questions. Then, in the end, the DV hearing officer will decide whether or not the person's license is suspended or the suspension is set aside.

It's important to note that decisions are not typically made immediately after the hearing.  Instead, the hearing officer usually states, 'Thank you, counsel.  We will inform you of our decision shortly,' and this decision typically arrives within a couple of days.

Mandatory Actions Unit

If there are some real issues in the case and the hearing officer is confused and unsure how to rule, they will send the case on to their mandatory actions unit, a separate department within the DMV responsible for reviewing complex cases. This can extend the decision-making process to up to thirty, forty-five, or sixty days. During that time frame, your client is undoubtedly still allowed to drive.

The client can drive as long as there is a stay in place until the DMV makes its final ruling regarding the suspension of the driver's license.  The three things that the DMV is looking at when deciding whether to suspend somebody's license is whether the police legally stop the person.

In other words, was there some traffic violation?  Is there some unlawful activity the police observed justifying a stop?  Or is it a DUI checkpoint, which is another way to stop people without probable cause?

If the stop is good, the next question will be, is the arrest lawful?  What makes a lawful arrest?  The police have to have probable cause to arrest the person.

That probable cause is usually gained by the person taking and failing the field sobriety test. Once a person fails a field sobriety test, the DMV feels justified in suspending the driver's license in a DUI case.

The next thing the DMV has to prove is that the person's blood-alcohol level was .08 or greater, and they can do that through a breath test or a blood test.

Also, another way to get you without even getting that resolved is if you're foolish enough to refuse to take the test. Then, it's automatically presumed that you're DUI. You will lose your driver's license for one year with no restriction, and it will make it a lot easier for the prosecutors to prove their case against you because there's a presumption that you were DUI.

It's like that because if they didn't do it that way, everybody would refuse to take the test, and then they would be in a position where they couldn't get anybody for a DUI.

So, based on that, they make sure that if you don't take the test, you're automatically a DUI unless you can rebut the presumption. Rebutting the presumption means presenting evidence that contradicts the DMV's assumption of guilt.  If you could prove somehow you weren't driving under the influence of alcohol, which is not an easy thing to do, you would be able to rebut the presumption and get out of your DUI case.

DMV Hearing Is In Person or Over The Phone

These DMV hearings are usually conducted either in person or over the phone.  Many lawyers I hear claim that they have a much better success rate if it's in person.  I'm afraid I have to disagree.  Either you have the evidence to beat the DMV, or you don't.

You can beat them just as easily over the phone as you can in person.  I've won a lot of DMV hearings over the phone.  I don't think it makes a difference in most cases whether the DMV hearing is conducted over the phone or in person.  If you've got the evidence, you've got the evidence.  If you don't, you don't.

So, if you've got a DUI and need some help with the DUI in the criminal court and with the DMV, pick up the phone.  Make the call.  We've been doing this for twenty-five years and have handled thousands of DUI cases over the years, and we'd be happy to help you get the best resolution for your DUI case.