What Does the DMV Have to Prove in the Administrative Per Se Hearing?

After a DUI arrest in California, the DMV will automatically suspend your driver's license if you failed or refused chemical BAC testing. You have the right to challenge this suspension at an administrative per se hearing before the DMV. At this hearing, the DMV must present evidence to prove these key facts:

1. The Officer Had Legal Cause to Stop You

The DMV hearing officer must determine that the traffic stop leading to your DUI investigation was lawful. This means the officer needed a valid legal reason to pull you over, such as:

• Observing a traffic violation
• Having reasonable suspicion of DUI
• Having probable cause that a crime was committed

If the initial stop was illegal, the DMV cannot impose a license suspension. The hearing officer will review the police report and testimony to establish legal cause for the stop.

2. The Officer Had Reasonable Suspicion to Conduct a DUI Investigation

After stopping your vehicle, the officer needs reasonable suspicion of DUI to conduct field sobriety tests and further investigation. This can include:

• The smell of alcohol
• Slurred speech
• Bloodshot eyes
• Unsteady gait

Without reasonable suspicion of intoxication, the DMV cannot suspend your license based only on the illegal detention and investigation.

3. The Officer Read California's Implied Consent Advisory

Before requesting you submit to chemical BAC testing, the officer must inform you of California's implied consent law. This includes advising that:

• You are required by law to take a BAC test
• Refusing testing can lead to license suspension
• You have a choice of breath or blood testing

The DMV must prove the officer properly advised you of your rights and the consequences of refusing. If not, the suspension may be overturned.

4. You Were Lawfully Arrested for DUI

For the DMV suspension to apply, the officer must have had probable cause to make a lawful DUI arrest. Probable cause means facts demonstrating that:

• You were driving a vehicle
• While impaired by alcohol or drugs
• To the point it affected safe driving ability

Without establishing you were legally arrested for DUI, the subsequent license suspension cannot be imposed.

5. You Were Properly Advised of Your Chemical Testing Choices

Under California's implied consent law, the officer must properly advise you of the option to choose between a breath or blood test. Restricting or denying your choice can invalidate a suspension.

6. You Failed or Refused Chemical Testing When Requested

The DMV must enter proof that you either:

• Took and failed a chemical BAC test
• Refused to take a chemical BAC test when asked

This is the action that actually triggers the administrative per se license suspension. Without chemical test results or proof of refusal, the DMV has no grounds for suspension.

7. The Chemical Test Was Properly Administered if Taken

If you took a breath or blood test, the DMV must present evidence that:

• The test device was properly calibrated and working
• The officer followed all procedures when administering the test
• The results are an accurate measure of your BAC level

Procedural flaws in breath or blood testing can invalidate failures and avoid suspension.

Winning Your Hearing by Challenging the DMV's Evidence

The DMV must present solid proof of each element above to impose a suspension. As the driver, you have the right to refute their evidence and testimony. Potential ways to challenge their case include:

• No valid reason for the traffic stop
• Field sobriety tests were issued incorrectly
• Miranda rights were not read properly
• Errors in the chemical testing process
• Inconsistencies in the police report

By picking apart the DMV's evidence and raising reasonable doubt, you may be able to avoid the suspension entirely and keep your license.

Hiring an Attorney Gives You the Best Chance to Win

Navigating an administrative per se hearing without legal representation puts you at a major disadvantage. An attorney can provide these key benefits:

• Reviewing the police report to identify potential issues
• Obtaining supplemental evidence like body cam footage
• Raising objections to inadmissible evidence
• Questioning the officer's testimony
• Citing case law that supports your defense
• Raising doubt by scrutinizing all details

Experienced DUI lawyers know how to attack the DMV's case from every angle. Don't take chances at your hearing without hiring legal help.

Conclusion

The DMV must present solid evidence of seven key elements in order to impose an administrative license suspension after a DUI arrest. With so many legal technicalities involved, defending yourself at a per se hearing is extremely difficult. Partnering with a lawyer knowledgeable in DUI defense gives you the best shot at winning your hearing. Don't let the DMV suspend your license without a fight.