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,
- probable cause (a good legal reason for the stop);
- a lawful arrest, and
- 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.
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.
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:
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 find 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).