Administrative Per Se Hearings FAQs

What is a temporary license?

How do I request a DMV administrative per se hearing?

What are the three issues at a DMV hearing?

How will the DMV try to prove their case against me?

What if I refused to take a blood alcohol test?

I have been convicted of a prior DUI offense. What effect can this have on this DMV hearing?

What if I lose the DMV hearing?

What is a temporary license?

When a driver is arrested for driving under the influence of alcohol in California, the arresting officer will generally confiscate the driver's license. After confiscating the license, the police officer will give the driver a pink sheet called a "Temporary License Endorsement.” This temporary license generally allows the driver to drive for a period of 30 days. It also serves as notice of an administrative license suspension, and as notice of the right to request a hearing to contest the driver’s license suspension within 10 days.

How do I request a DMV administrative per se hearing?

Within 10 days of the issuance of the temporary license, the driver or his lawyer must contact the DMV to request an administrative hearing. Once a hearing has been scheduled, a "stay" of the suspension of the driver's license is issued, allowing the driver to drive past the 30-day period, pending the results of the hearing. An "interim driver's license" will be forwarded to the driver, allowing them to continue driving until the date of the hearing.

What are the three issues at a DMV hearing?

After a DUI arrest, three main issues are addressed at an administrative per se hearing before the DMV:

1. Was there reasonable cause to determine that the respondent was driving a motor vehicle?
2. Was the respondent lawfully arrested for driving under the influence of alcohol and/or drugs?
3. Did the respondent submit to a breath or blood test with a blood-alcohol concentration of 0.08% or greater?

How will the DMV try to prove their case against me?

The issues at a DMV hearing may seem fairly straightforward, but in reality, they are not. The DMV will try to prove their case against you by presenting documentary evidence.

The DMV’s documentary evidence will include some or all the following:

• a copy of the Temporary License Endorsement
• a document entitled "Officer's Statement”
• arrest and police reports
• traffic collision reports (if applicable)
• chemical test records and results
• blood test records and results
• laboratory certification records (in cases with blood testing)

The law in these administrative cases states that although documentary evidence is admissible as "hearsay,” it must be "reliable and trustworthy.” Many times, the documents that police officers submit to the DMV contain ambiguities or omissions such as misplaced or inconsistent dates and times, missing signatures, inaccurate officer information, and a wide variety of other mistakes or omissions. In many hearings, flaws in the documentary evidence will lead to success at the DMV hearing.

Even if a client has driven while under the influence, has been lawfully arrested, and has been tested with a blood-alcohol concentration of 0.08% or greater in a breath or blood sample, an experienced DUI attorney can still prevail at a DMV hearing on numerous administrative or documentary issues. The aggressive attorneys at McGregor & Ernenwein have successfully represented clients in hundreds of these hearings. Remember, there are ways to win at these hearings, and an experienced DMV attorney can help.

What if I refused to take a blood alcohol test?

In cases where a driver refused to take a blood alcohol chemical test, the DMV must still prove the three issues above. In addition, the DMV must prove that the driver was properly advised of his or her obligation to take a blood-alcohol test, and that the driver willfully refused the test, while knowing the consequences of that refusal.

It can often be demonstrated that the driver was not properly advised of the obligation to take a blood-alcohol test. For instance, the officer may have failed to adequately advise the driver of the consequences, the driver may not have understood English sufficiently (and was not provided with an interpreter), or the driver may have been injured or otherwise unable to understand the advisement. If the driver was not properly advised, then the refusal to submit to a blood alcohol test cannot be used against them at a DMV hearing.

I have been convicted of a prior DUI offense. What effect can this have on this DMV hearing?

There can be significant DMV consequences for drivers who have suffered multiple DUI convictions or prior DMV actions. The length of the suspension or revocation of the driver's license increases with the number of DUIs or prior DMV actions a driver has on his or her record. The suspension time increases even further if the case involves a refusal to take a blood-alcohol test.

What if I lose the DMV hearing?

If a driver does not prevail at the DMV hearing, they may be eligible for a restricted license. After a thirty-day "hard suspension," wherein driving is not allowed, the driver is generally able to obtain a restricted license allowing them to drive to and from work, within the scope of their employment, and to and from their alcohol education program. In order to obtain this restriction, the driver must submit an SR22 proof of insurance form, show proof of enrollment in an AB-541 alcohol program and pay a fee of $125. Our attorneys regularly assist their clients in obtaining restricted licenses, and can refer the client to an appropriate alcohol program in his or her area.

Attorneys at McGregor & Ernenwein conduct DMV administrative per se hearings on virtually a daily basis. Our attorneys are well versed in DUI law and in the administrative laws that apply to these hearings. Attorneys from the Law Offices of McGregor & Ernenwein vigorously defend their clients before the DMV. Call us today for a free consultation.