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Consequences for Loss of DMV Hearing With Chemical Test Refusal

Many California drivers arrested for DUI / DWI are unaware that they have only 10 days to request a DMV hearing or have their licenses automatically suspended. Often drivers are also unaware of the consequences of refusing a chemical test to determine blood alcohol content (BAC). Unless the refusal is excused, a driver who loses a DMV hearing will actually have a longer license suspension that one who submitted to a test. The experienced DUI / DWI defense lawyers at The Kavinoky Law Firm will fight hard to protect the accused drunk driver’s license, rights, and freedom both in court and at the Department of Motor Vehicles.

In California, as in every other state, operating a motor vehicle with a BAC of .08 percent or greater violates the state’s “per se” laws. Unlike in criminal court, which is concerned with both the driver’s BAC and mental and physical condition, the Department of Motor Vehicles focuses only on the driver’s blood alcohol content. Therefore, the DMV’s administrative per se (APS) hearing will seek to establish just three facts – that police had probable cause to make an arrest, that the arrest was lawful, and that the driver had a BAC of .08 percent or greater. If those three facts are established, the driver’s license will be suspended.

California’s implied consent law dictates that anyone lawfully arrested for drunk driving must submit to a chemical test of the blood, breath, or urine to determine BAC. Determining the driver’s BAC is so central to a California DUI / DWI prosecution that the Department of Motor Vehicles harshly punishes drivers who refuse to submit to a chemical test.

A driver arrested for DUI / DWI for the first time in California who refused a chemical test and loses his or her D.M.V. hearing faces a license suspension of one year, compared to a four-month suspension for a driver who took the test.

Additional refusals during subsequent drunk driving arrests will be treated just as harshly – a second refusal will result in a two-year driver’s license suspension, a third refusal is punishable with a three-year suspension, and a fourth refusal will result in a four-year suspension. In addition, any driver whose license is suspended in a DMV APS action must file an SR-22, or formal proof of insurance, for three years once the license is reinstated.

However, a DMV license suspension isn’t automatic, even when the driver refused a chemical test. An experienced DUI / DWI defense lawyer will argue to have the refusal excused. There are several circumstances under which a chemical test refusal might be excused. For example, certain drivers may have medical conditions that make it impossible for them to take a breath test, and instead of administering a blood test instead, police sometimes record this as a refusal. Language barriers or simple misunderstandings can also contribute to police recording a refusal that may be excused later.

There are also several effective defenses to the hearing itself. Unlike court trials that feature live testimony, the evidence in DMV hearings typically consists of documentation such as police reports and chemical test results. If any of this evidence can be excluded, the driver may win the hearing and retain his or her driving privileges.

Although the DMV has the sole power to suspend driver’s licensees in California, it’s important to remember that a driver who wins an APS hearing can still have his or her license suspended by the DMV following a DUI / DWI conviction in criminal court. Because of this, it’s critical to have an expert defense attorney at the driver’s side, both in court and at the Department of Motor Vehicles.

The skilled DUI / DWI defense lawyers at The Kavinoky Law Firm are experienced in every aspect of defending drivers who refused chemical tests, both in court and at the DMV. A knowledgeable defense attorney can answer any questions about a California driving under the influence arrest during a free consultation.