How Does the DMV Hearing Work After a DUI in California?
The short answer: after a California DUI arrest you are fighting two cases at once. The criminal case in court decides whether you are guilty of driving under the influence under Vehicle Code section 23152. The DMV administrative per se case decides whether you lose your license, and it runs on its own schedule. You have 10 days from the arrest to request a DMV hearing under Vehicle Code section 13558. If you do not, the suspension takes effect automatically when the temporary license expires, no matter what happens later in court. Drivers arrested in Ontario, Rancho Cucamonga, Riverside, Corona, Santa Ana, Van Nuys, and everywhere else in Southern California face the same deadline.
Why the DMV hearing matters even if the criminal case looks good. The DMV does not wait for the court. A driver can win the criminal case months later and still have served a four-month suspension because nobody requested the hearing. The hearing is also the first chance to cross-examine the arresting officer under oath and to see the DMV's evidence before the criminal case gets moving. This guide explains what the DMV must prove, how the hearing actually runs, the defenses that win, and what a suspension looks like for a first and a repeat offender. For the court side, read our guide on what happens after a DUI arrest in California and our Riverside County DUI defense page.
What Is the DMV Administrative Per Se Hearing?
A separate civil proceeding. The administrative per se, or APS, program is the DMV's authority under Vehicle Code section 13353.2 to suspend the license of a driver who was arrested for DUI and who had a blood alcohol concentration of 0.08 percent or more, 0.01 percent or more if under 21, or 0.04 percent or more while driving a commercial vehicle. It is not a criminal case. The standard of proof is a preponderance of the evidence, not beyond a reasonable doubt, and the DMV hearing officer, not a judge, decides.
The pink temporary license. At the arrest the officer takes your California license and serves a notice of suspension under Vehicle Code section 13382. That pink form is your temporary license for 30 days and your notice that the suspension will begin when it expires. The 10-day hearing request clock in Vehicle Code section 13558 starts on the date of that notice. If the officer did not take your license because you have an out-of-state license, the DMV can still suspend your privilege to drive in California and mails the notice, and the same deadline applies from the date of the notice.
Refusal cases. If the officer reports that you refused a chemical test, the DMV proceeds under Vehicle Code section 13353 instead. California's implied consent law in Vehicle Code section 23612 requires a lawfully arrested DUI driver to submit to a breath or blood test, and a refusal suspension is longer than a per se suspension and does not allow a restricted license. The DMV must prove you were properly admonished about the consequences of refusing.
How to Request the DMV Hearing Within 10 Days
Call or contact the Driver Safety Office, not a field office. APS hearings are handled by DMV Driver Safety Offices, not by the local DMV field office where you renew a license. The Driver Safety Office assigned to your case depends on the county of arrest; the DMV website lists the office and its contact information, and the notice of suspension explains how to request the hearing. A DUI defense lawyer can make the request for you and will usually do it the same day you retain the firm.
Ask for a stay, the discovery, and an in-person hearing if you want one. When the hearing is requested within the 10 days, the DMV generally stays the suspension until the hearing decision, so you keep driving in the meantime on the temporary license or a DMV-issued extension. Ask for a copy of the DMV's evidence, which is the officer's sworn statement on form DS-367, the arrest report, and the chemical test results, and request the hearing be set on a date that gives time to review it. Hearings are commonly held by telephone or video; you may request an in-person hearing, and Vehicle Code section 14100 and the sections that follow describe your hearing rights.
Missing the deadline. If the request is late, the DMV will generally deny the hearing and the suspension begins on the date stated in the notice. There is a narrow path to a late hearing if you can show the notice was never properly served or that there is good cause, but do not count on it. The 10-day window is the single most common mistake we see from drivers arrested on a weekend in Ontario or Fontana who assume their court date is the only deadline. Our guide on what to do if you were arrested last night in the Inland Empire puts this call at the top of the list.
What the DMV Must Prove at the Hearing
Three issues in a per se case. Under Vehicle Code section 13557, the hearing officer decides whether (1) the officer had reasonable cause to believe you were driving in violation of Vehicle Code section 23152 or Vehicle Code section 23153; (2) you were lawfully arrested; and (3) you were driving with a blood alcohol concentration of 0.08 percent or more. If the DMV fails on any one of the three, the suspension is set aside.
Four issues in a refusal case. In a refusal hearing under Vehicle Code section 13353, the DMV must show reasonable cause, a lawful arrest, that you were told your license would be suspended or revoked if you refused, and that you did in fact refuse or fail to complete the test. A driver who tried to blow but could not produce a sample, who was too injured to comply, or who was never clearly admonished has a defense.
The DMV's evidence is mostly paper. The DMV typically proves its case with the officer's sworn DS-367 statement, the unsworn arrest report, the breath test printout or the forensic blood alcohol report, and sometimes a dispatch log. Under Lake v. Reed (1997) 16 Cal.4th 448, the hearing officer may rely on the officer's sworn statement and may consider the unsworn police report as well, and the relaxed evidence rules in Government Code section 11513 allow hearsay to supplement or explain other evidence. Under MacDonald v. Gutierrez (2004) 32 Cal.4th 150, a sworn statement that is incomplete can be filled in with the unsworn report. That is why the hearing is not a rerun of the criminal case and why the defense has to attack the documents themselves.
Circumstantial proof of 0.08. In Coffey v. Shiomoto (2015) 60 Cal.4th 1198, the California Supreme Court held that the hearing officer may consider circumstantial evidence such as driving pattern, physical symptoms, and field sobriety test performance, together with the chemical test, to decide whether the driver was at or above 0.08 at the time of driving. A rising blood alcohol defense based on the test results alone can be answered with that circumstantial evidence, so the defense has to address the whole record.
Defenses That Win DMV Hearings
No reasonable cause for the stop. The officer needs a lawful basis for the traffic stop or the contact. A stop based on a hunch, on a vehicle code violation that did not actually occur, or on an anonymous tip without corroboration undermines the first element. Dash camera and body camera footage frequently contradict the "weaving" described in the report. Our article on when police can search your car in California covers the stop and search rules that also apply here.
No proof of driving. The DMV must show you were driving. In Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753, the California Supreme Court held that a refusal suspension requires evidence that the vehicle actually moved, so a driver found asleep in a parked car with the engine running has a real argument. Collision cases where no one saw you behind the wheel raise the same issue.
Unlawful arrest or defective admonition. An arrest for a misdemeanor DUI generally requires that the offense occurred in the officer's presence, with statutory exceptions for collisions and certain other circumstances in Vehicle Code section 40300.5. A refusal case fails if the admonition was garbled, incomplete, or given in a language the driver did not understand.
Chemical test problems. Breath test defenses include the 15-minute observation period, mouth alcohol, instrument calibration records, and the accuracy checks required by Title 17 of the California Code of Regulations. Blood test defenses include chain of custody, the qualifications of the person who drew the blood, fermentation, and the laboratory's uncertainty of measurement. If the sample was tested more than three hours after driving, the rebuttable presumption in Vehicle Code section 23152, subdivision (b), that the result reflects the level at the time of driving does not apply, and the DMV must prove the number some other way.
Rising blood alcohol. Alcohol takes time to absorb. A driver who had a drink shortly before driving may have been under 0.08 while driving and above it an hour later at the station. The defense presents the drinking timeline and, in a serious case, a forensic toxicologist. After Coffey the DMV can answer with symptoms and driving pattern, so this defense works best when the objective symptoms in the report are mild.
The officer does not appear. The defense can subpoena the arresting officer. If the officer is subpoenaed and does not appear, the hearing officer must decide the case on the paperwork, and any gap in the sworn statement becomes the defense's argument. Cross-examination of the officer is also the best free discovery available before the criminal case, because the testimony is recorded and can be used for impeachment later.
What Happens to Your License After the Hearing
If you win. The hearing officer issues a written decision setting aside the suspension and the DMV returns your driving privilege. A set-aside at the DMV does not end the criminal case, and a criminal conviction for Vehicle Code section 23152 later triggers a separate court-ordered suspension under Vehicle Code section 13352. The reverse is also true: under Vehicle Code section 13353.2, an acquittal of the alcohol-related charge in criminal court requires the DMV to reinstate the license if the APS suspension was based on the same arrest.
If you lose as a first offender. A first per se suspension is four months under Vehicle Code section 13353.3. Most first offenders can obtain a restricted license to drive to work and to the DUI program after a short hard suspension, with proof of enrollment in a licensed DUI program under Vehicle Code section 23538 and an SR-22 insurance filing, or can obtain an ignition interlock restricted license without a waiting period under the IID provisions that took effect statewide in 2019. The exact options depend on your record and the current statute, so confirm the terms with the DMV or your attorney before relying on them.
If you lose with a prior. A per se suspension with a prior DUI conviction or APS action within 10 years is one year under Vehicle Code section 13353.3, and refusal suspensions are longer still, with no restricted license for a refusal. Repeat offenders may qualify for an IID restricted license after a waiting period. The court case adds its own consequences under Vehicle Code section 13352 when the conviction is entered.
Judicial review. A driver who loses at the DMV can ask for a departmental review and can file a petition for writ of mandate in superior court under Vehicle Code section 13559 and Code of Civil Procedure section 1094.5. Deadlines for both are short and run from the DMV's decision, so ask about them at the hearing. Separately, in California DUI Lawyers Association v. Department of Motor Vehicles (2022) 77 Cal.App.5th 517, the Court of Appeal held that having the same DMV hearing officer act as both the department's advocate and the decision maker violated due process, and the DMV has since restructured how its hearings are staffed. Ask your attorney how the current procedure applies to your hearing.
How the DMV Hearing and the Criminal Case Interact
The court case runs at the Southern California courthouses. A DUI arrest by the Ontario Police Department, the Rancho Cucamonga sheriff's station, or the California Highway Patrol on the 10 or 15 freeways is usually filed at the Rancho Cucamonga courthouse or the San Bernardino Justice Center. Riverside and Corona arrests go to the Riverside Hall of Justice, Temecula and Murrieta arrests to the Southwest Justice Center, Coachella Valley arrests to the Larson Justice Center in Indio, Orange County arrests to the Central Justice Center in Santa Ana or the Harbor Justice Center in Newport Beach, San Fernando Valley arrests to the Van Nuys courthouse, and Ventura County arrests to the Ventura County Hall of Justice. Check the court's website for the assigned courthouse. Our guide on what happens at arraignment in Riverside County explains the first court date.
Using the DMV hearing to build the criminal defense. The officer's recorded testimony at the DMV hearing, the calibration records, and the blood alcohol report obtained through the hearing become the foundation for a suppression motion under Penal Code section 1538.5 or for negotiating a reduced charge such as a wet reckless under Vehicle Code section 23103.5. Read our guides on 1538.5 motions and whether you should take a plea deal for how those decisions get made.
A plea to a reduced charge does not automatically fix the DMV action. A wet reckless plea avoids the court-triggered suspension under Vehicle Code section 13352, but the APS suspension stands unless the DMV hearing was won or the driver was acquitted of the alcohol charge. Coordinate the two cases from the beginning rather than treating the DMV as an afterthought. Daniel Gramling, Esq. handles the DMV hearing and the criminal case together for clients in Ontario, Rancho Cucamonga, Riverside, Corona, Santa Ana, and across Southern California on flat-fee terms.
Frequently Asked Questions
How many days do I have to request a DMV hearing after a DUI in California?
Ten days from the date of the notice of suspension. Vehicle Code section 13558 sets the deadline, and the notice served at the arrest under Vehicle Code section 13382 starts the clock. Request the hearing through the DMV Driver Safety Office, ask for a stay of the suspension, and ask for the DMV's evidence at the same time.
Can I drive while I wait for the DMV hearing?
Usually, yes. The pink notice is a 30-day temporary license, and when the hearing is requested on time the DMV generally stays the suspension and extends your driving privilege until the hearing officer issues a decision. Confirm the stay in writing and carry the DMV paperwork when you drive.
What does the DMV have to prove at the hearing?
Three things in a per se case. Under Vehicle Code section 13557, the hearing officer must find that the officer had reasonable cause to believe you were driving under the influence, that you were lawfully arrested, and that your blood alcohol concentration was 0.08 percent or more. The standard is a preponderance of the evidence, and hearsay in the police report can be considered under Government Code section 11513.
Will winning the DMV hearing get my DUI dismissed?
No, the cases are separate. A set-aside at the DMV does not bind the prosecutor or the court, and a court conviction for Vehicle Code section 23152 later triggers a separate suspension under Vehicle Code section 13352. The DMV hearing still helps the criminal defense by locking in the officer's testimony and exposing weaknesses in the stop, the arrest, or the chemical test.
How long is the DMV suspension for a first DUI in California?
Four months for a first per se suspension under Vehicle Code section 13353.3. Most first offenders can obtain a restricted or ignition interlock license with proof of DUI program enrollment under Vehicle Code section 23538 and an SR-22, subject to the current DMV rules. A refusal suspension under Vehicle Code section 13353 is longer and does not allow a restricted license.
Can I appeal if I lose the DMV hearing?
Yes. You can request a departmental review and can file a petition for writ of mandate in superior court under Vehicle Code section 13559 and Code of Civil Procedure section 1094.5. Both deadlines are short and run from the DMV's written decision, so discuss them with counsel as soon as the decision arrives.
Talk to a DUI Defense Lawyer Before the 10 Days Run Out
Gramling Law Group defends DUI cases at the Rancho Cucamonga courthouse, the San Bernardino Justice Center, the Riverside Hall of Justice, the Southwest Justice Center in Murrieta, the Larson Justice Center in Indio, the Central and Harbor Justice Centers in Orange County, the Van Nuys courthouse, and the Ventura County Hall of Justice, and throughout the Inland Empire, Los Angeles County, Orange County, and Southern California. Daniel Gramling, Esq. offers flat-fee criminal defense and limited-scope options that include the DMV hearing request. Call (909) 654-4575 or contact us through this website for a consultation.
This article is educational and is not legal advice. Reading it does not create an attorney-client relationship. It addresses California law only.
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