What the DMV Must Prove to Suspend Your License
The DMV doesn’t need a conviction to take your license. But it does need to prove three specific things. If it fails on even one, you win.
(916) 498-8460 — Free ConsultationIf you were arrested for DUI in California, the DMV doesn’t wait for a conviction. Within days of your arrest, the Department of Motor Vehicles initiates a separate administrative action to suspend your driving privilege — regardless of what happens in criminal court.
That action is called an Administrative Per Se (APS) hearing. The DMV doesn’t have to prove you were drunk. It only has to prove three specific things.
If it fails to prove even one of them, you keep your license.
You have 10 days from the date of your arrest to request a hearing. If you miss this window, your license is automatically suspended 30 days after the arrest. Do not wait.
This is not a criminal proceeding. The standard of proof is lower — “preponderance of the evidence” — but the DMV still carries a burden. Many hearings are won not by proving innocence, but by exposing what the DMV cannot adequately prove.
For a driver 21 or older with a BAC of 0.08% or above, the DMV hearing officer must find — by a preponderance of the evidence — that all three of the following are true. Fail one, and the suspension must be set aside.
Reasonable Cause
The peace officer had reasonable cause to believe you were driving a motor vehicle in violation of California Vehicle Code §23152 or §23153.
Was the initial stop lawful? Did the officer articulate specific facts — not a hunch — to justify pulling you over? Was it a sobriety checkpoint? If so, did it meet all eight constitutional criteria?
Lawful Arrest
You were lawfully arrested. The arrest must be supported by probable cause — enough for a reasonable person to believe you probably committed the offense.
Was probable cause established at the time of arrest — not based on what the officer learned afterward? Were field sobriety tests properly administered and scored?
BAC of 0.08% or More at the Time of Driving
You were driving with a blood alcohol concentration of 0.08% or more by weight. The BAC must be established at the time of driving — not just at the time of the test.
Was the test properly administered under Title 17 CCR? Was the 15-minute observation period maintained? Was equipment functioning? Was blood drawn by a qualified person? Is a rising BAC defense viable?
The three-issue framework above applies to the most common APS case. Your situation may involve different or additional issues depending on the circumstances of your arrest.
Refusal Cases
If you refused or failed to complete a chemical test, the DMV must prove four issues — including that you were properly warned about the consequences. The exact language matters. An officer who said “could” instead of “will” may have given a legally insufficient admonition. Refusal suspensions are longer: one year for a first offense, two for a second, three for a third.
Drivers Under 21 — Zero Tolerance
The threshold drops to 0.01% BAC, measured by a Preliminary Alcohol Screening (PAS) test or other chemical test. The foundational requirements for a valid PAS result must still be met: proper working order, correctly administered, qualified operator.
DUI Probation Violations
Drivers on DUI probation face a 0.01% BAC threshold regardless of age. The DMV must establish that the officer knew — or had sufficient basis to reasonably infer — that you were on DUI probation at the time of the stop.
Commercial Drivers
CDL holders are held to a 0.04% BAC threshold when operating a commercial vehicle. A sustained APS action also triggers a commercial disqualification — a serious separate consequence beyond the license suspension itself.
The DMV’s BAC evidence almost always comes from a breath or blood test. Both are subject to strict procedural requirements under Title 17 of the California Code of Regulations — and errors in how those tests were conducted can undermine the DMV’s ability to prove Issue 3.
- Two separate breath samples producing results within 0.02 g/100mL of each other
- Continuous observation of the driver for at least 15 minutes before the test — during which the driver must not have ingested anything, regurgitated, vomited, eaten, or smoked
- Equipment properly functioning at the time of the test
Continuous observation does not require unbroken eye contact — but the officer must be able to account for the full 15-minute period. Gaps matter.
Blood draws must be performed by a qualified person under Vehicle Code §23158. The forensic alcohol analysis report must include the collection date, analysis date, analyst name and signature, and a certification statement. A deficient lab report can challenge the admissibility or weight of the BAC evidence.
Because alcohol continues absorbing into the bloodstream for 45 minutes to 3 hours after consumption, your BAC at the time of the chemical test may be higher than it was when you were actually driving. This defense requires expert evidence — typically a forensic toxicologist — and is most viable when the gap between driving and testing was substantial and the BAC result was close to the legal limit.
If your arrest arose from a sobriety checkpoint, there is a presumption under Evidence Code §664 that the checkpoint was constitutional — but that presumption can be rebutted. California law requires checkpoints to satisfy all eight of the following criteria:
- Supervisory personnel selected the checkpoint site
- Vehicles were stopped by a neutral mathematical formula — not officer discretion
- The checkpoint was operated safely with proper lighting and signage
- High visibility: advance warning signs, flashing lights, uniformed officers
- The location was reasonable based on local DUI collision and arrest history
- Time and duration were set to minimize intrusiveness
- Individual detentions were no longer than necessary
- Advance publicity was provided
A checkpoint that failed any of these criteria may produce a constitutionally defective stop — and a case that cannot be sustained.
California law does not require you to have an attorney at a DMV APS hearing. Non-lawyer hearing advocates are permitted — and they will tell you this themselves. What they will not tell you is what they cannot do.
A non-lawyer advocate cannot file a Writ of Mandate in Superior Court if you lose. If the hearing officer makes a legal error — misapplies the law, ignores a valid defense, admits evidence that should have been excluded — a non-lawyer advocate has no remedy. The suspension stands. An attorney does not accept that outcome.
John Campanella has represented clients at DMV APS hearings since 1994. He is nationally certified as a Field Sobriety Test practitioner — trained in the same standardized protocols law enforcement uses, and he knows exactly how they can be improperly administered. He owns and has reviewed the operator manuals for the major breathalyzer devices used by law enforcement agencies throughout California.
That is not background information. It is the foundation for cross-examination.
Yes. The APS hearing and the criminal DUI case are entirely separate proceedings. The DMV applies a lower standard of proof — preponderance of the evidence, not beyond a reasonable doubt. An acquittal in criminal court does not automatically set aside an APS suspension, though certified documents reflecting a finding of factual innocence may result in a set aside.
Your license is automatically suspended 30 days from the date the officer served you with the order. You lose your right to contest the action entirely. The 10-day window begins the moment you receive the DS 367 form. This deadline cannot be missed.
In most cases, no. APS hearings are now conducted by telephone unless you specifically request an in-person hearing. John Campanella represents clients at Driver Safety Offices throughout California without requiring clients to travel.
They are separate actions that run concurrently. The APS suspension is administrative — imposed by the DMV before any court proceedings. A DUI conviction suspension is criminal — imposed after a guilty plea or verdict. Under Vehicle Code §13353.3(c), the total period cannot exceed the longer of the two. An attorney can manage both timelines strategically.
First-offense APS offenders who submitted to a chemical test with no prior DUI-related actions within 10 years may apply for a restricted license without waiting for a hearing outcome. One option requires a 30-day hard suspension followed by a 6-month to/from-work restriction. Another allows an immediate ignition interlock device (IID) restriction for 4 months. Refusal cases do not qualify.
Your Hearing Is Time-Critical. You Have 10 Days to Act.
John Campanella has challenged DMV APS hearings since 1994. Nationally certified in field sobriety testing. Writ of Mandate capable. Statewide representation throughout California.
(916) 498-8460 — Free Consultation