DMV Hearing Defenses in a DUI


    Robert L. Miller and Associates is a law firm dedicated to clients. We have handled thousands of cases, and have winning results. Learn more about our firm and why it’s the best choice.

    Read more


    DUI Dismissals and Case Results
    See some of the many cases we have won at trial or through motions, negotiations, or strategy. Learn why we are so successful in protecting clients

    Read more


    If you have been arrested, don’t delay. You have only 10 days to save your license. Contact us today for a FREE consultation, and find out about all of your options, and all of your rights, and how to protect yourself.

    Read more

DMV Hearing Defenses in a DUI

DMV Hearing Defenses in a DUI

DMV Hearing Defenses in a DUI: As established elsewhere on our website, the DMV has a procedure in their hearings after a DUI arrest, to examine whether or not there is enough evidence to order the suspension of a license.

If there isn’t enough evidence, then the license has to be set aside, or returned to the driver.

Once the DMV establishes the prima facie case with the documents presented that establish the three issues below,

  1. probable cause (a good legal reason for the stop);
  2. a lawful arrest, and
  3. both driving of a vehicle, and a BAC over 0.08 within 3 hours;

then they have met their burden at the DMV hearing.

The Good News: DMV wins at a hearing are going up.

DMV Wins in a DUI

The chart above shows that more people are winning DMV hearings.  Statistically, many more drivers who have a DUI and a lawyer will win their hearing.  However,  the total amount of wins at the DMV is increasing, with or without a lawyer.

DMV Hearing Defenses in a DUI

When the DMV has made their case, then you have the burden to provide evidence sufficient to show that official standards were not followed (or the facts aren’t what they claim). This then shifts the burden back to the department to establish without regard to any official duty or other presumptions that the weight of the evidence still supports the decision to suspend. The burden on the defense does not require the marshaling of complex scientific evidence (but it doesn’t preclude it either). Once the burden has shifted back to the department, they have to provide additional evidence to re-establish the weight in their favor.

How People Win DMV Hearings in a DUI

Take a look at the chart below.  You will see the main reasons that the DMV hearing officers list in cases that won a set aside:

That table shows that cases are won most by asserting the following issues:

  1. The true blood alcohol levels were not as high as reported by the police or crime lab;
  2. The report is missing, or missing information, or is inadequate to prove the issues at the hearing;
  3. A phrase or comment on the reports calls into question the reliability of the reports; 
  4. A comprehensive decision written internally at the DMV when the reports came in;
  5. The factual summary or facts of the case do not support the DMV taking action.

If you match your defenses with what the DMV already knows is the largest cause of them losing cases, you will have a much higher success rate in DUI licensing hearings at the DMV.

DMV Set Aside Cases

Cases discussing and providing guidance on the role of the DMV in meeting the burden, and the role of counsel on rebutting is, are:

Davenport v. Department of Motor Vehicles (1991) 228 Cal.App.3d 252
Imachi v. Department of Motor Vehicles (1992) 2 Cal.App.4th 809
Najera v. Shiomoto 241 Cal.App.4th 173 (2015).

The DMV tries to get around this by using boilerplate language in their decisions, in whole or in part.  This language is so standard in upholding the Department’s decisions and denying the Defense claims, that it was probably written by those in the DMV Legal Department in Sacramento.  The language in decisions usually finds the defense evidence insufficient to shift the burden in the first place.  They find evidence speculative, subjective, and insufficient.  If the defense presents an expert, they often state that the expert did no studies on the subject, did not interview the subject, did not rely on any specific literature, etc., whether or not that was the case.

Educating the DMV hearing officers on Hearing Defenses

Some hearing officers do not understand that the burden on the defense is as low as the cases indicate. They feel that unless it is “more likely than not” that the BAC was under 0.08, that they still must win. They think any expert must say that it is probable, not just possible, that the BAC was under 0.08 at the time of driving. They also think that any possibility on their side outweighs the probability on the defense side (which any DUI Defense Attorney knows is wrong).

DMV hearing officers are also able to use driving, FST’s, and other physical symptoms to counter the clear indications of a rising BAC from drinking patterns or PAS to Evidential tests. See Coffey v. Shiomoto. 60 Cal.4th 1198 (2015).

Contact us today

Contact us

Contact us today. If you need the help of an Orange County DUI Lawyer, or have questions, contact us or call us anytime at (877) 942-3090.

Our Mission: "To deliver outstanding client service, to provide fulfilling careers and professional satisfaction for our people, and to achieve financial success so that we can reward ourselves, grow, and give back to the community."