Most states have laws that allow the Department of Motor Vehicles (DMV) (or equivalent state agency) to suspend your driving privileges if you're arrested for driving under the influence (DUI)—even before your criminal case makes it to court. Generally, a DUI chemical test (typically of the breath or blood) indicating a certain concentration of alcohol or drugs or refusing to take a chemical test triggers this DMV action.
For many people, license suspension is the harshest DUI-related penalty because of its impact on day-to-day life. So, maintaining driving privileges while a DUI case is pending is often a top priority. In most instances, requesting an administrative review hearing (sometimes called an “administrative per se” hearing) is the only way to keep your license while your criminal case is going on.
An administrative per se suspension is automatic—and typically goes into effect 30 days or so after the arrest—unless the driver requests a review hearing with the DMV. When you request a hearing, the DMV generally puts the suspension on hold until the conclusion of your hearing.
If you don't request a hearing within a certain period of time of the arrest, then you forfeit your right to challenge the administrative suspension. The time a driver has to request a hearing varies by state, but in many states, including California, it’s ten days.
The purpose of the hearing is to determine whether the DMV has grounds to administratively suspend your license. In other words, to decide whether you were driving with a certain concentration of drugs or alcohol in your system or refused to submit to chemical testing in violation of the state’s implied consent laws.
Generally, for the DMV to suspend a driver’s license, the state must prove by a preponderance of evidence (more likely than not) that:
In some states, such as Illinois, having a prohibited amount of drugs in your system is also grounds for administrative suspension.
At the hearing, the DMV hearing officer (the person deciding the case) considers evidence presented by the arresting officer. The officer generally brings in the results of any chemical tests taken by the driver and testifies about the encounter. To establish intoxication, the officer might recount observations like the motorist driving poorly, reeking of alcohol, or having slurred speech. The hearing officer might also consider how well the driver performed on field sobriety tests (FSTs).
In addition to putting your license suspension on hold, requesting a hearing gives you a shot at beating the administrative suspension. For example, if the arresting officer fails to show up at the hearing or evidence is lacking, you’re likely to prevail. Winning your hearing means you get to keep driving while your criminal case is pending.
Even a DMV-hearing loss can be helpful for your attorney in evaluating the strength and weaknesses of the state’s case and whether you might have any viable defenses. In other words, your attorney can get a sneak peek at what’s to come in your criminal case. But a word of caution: What you do at a DMV hearing can also negatively affect your criminal case. So it’s always best if an attorney—whose job it is to protect your legal rights—comes with you to the hearing.
If you’ve been arrested for driving under the influence, get in contact with an experienced DUI attorney. Processes and procedures vary by state, so it’s important to talk to a local attorney who can explain how things work in your area and help you decide your best course of action.