Implied Consent Law – What Happens at a DMV Hearing to save your Driver’s License?


The procedure to object to the suspension or revocation of a driver’s license where an “Admin per se” suspension is imminent is as follows. If a person wishes to contest the suspension received as the result of driving with a blood alcohol test result of .08 or above, or refusing to take or complete a blood alcohol test they must make a request within 10 calendar days of the service of the notice of suspension, which is entitled DS 367, and is a “pink” carbon copy of the original order.1 This form also serves as a temporary driver’s license for 30 days until the suspension is invoked. On occasion this notice is not given at the time of an arrest in which case DMV will served a notice of suspension by mail with accompanying instructions regarding the effective date of a suspension or revocation and a date by which a request for a hearing must be made.

Hearing Officer

Where there is a timely request for a hearing and the department is unable to schedule a hearing within the 30 day grace period, it will grant a stay on the effective date of the suspension until a hearing can be held.2 The hearing will be held as close to where the arrest occurred as possible, and in some instances it can be transferred to a location closer to where the licensed driver lives.3

The hearing is presided over by an administrator employed by DMV who acts as both a prosecutor and a judge. At the hearing witnesses can be called, and the licensee can ask that DMV to issue subpoenas on their behalf, including one for the officer who administered the test if the DMV has not done so; a deposit of $150 must be paid to the person or the public agency that employs the witness to compensate for the witnesses’ salary and traveling expenses.4

The issues at the hearing are limited to these:

  1. Did the police officer have probable cause to believe the person was driving in violation of either section 23152,5 or 23153.6 of the California Vehicle Code?
  2. Was the arrest lawful?
  3. Did the person have blood alcohol content of .o8% or above?

If the issue is a refusal to take or complete a test then the issues are:

  1. Did the police officer have probable cause to believe the person was driving in violation of either section 23152 or 23153 of the California Vehicle Code?
  2. Was the arrest lawful?
  3. Was there a willful refusal or a failure to complete an alcohol test?
  4. Was the person advised of the consequences of refusing or failing to complete a test?

  5. Primitive Breathalyzer
  6. In some cases the issue of capacity to take a test may arise; someone who is rendered unconscious; or is suffering from a condition where it would be impossible to refuse to submit to a test; however even if they cannot either consent or refuse a test they are not considered to have withdrawn consent under the implied consent law.

If such a situation arises a test will be administered even though there has been no explicit consent; in the case of incapacity the requirement to admonish a person of the consequences of a refusal is excused; surprisingly someone who is deceased also has not withdrawn consent and a test may be administered; however, incapacity does remains a defense at a DMV hearing to suspend a person’s license for refusing to take a test where no test was administered and a refusal is alleged.7

1 Section 13558(8) of the California Vehicle Code
2 Section 13558(e) of the California Vehicle Code
3 Section13558(b), 13558(c)(2), 13557(b)(2) of the California Vehicle Code
4 Sections 68097.1, 68097.2 of the California Government Code
5 Misdemeanor driving under the influence
6 Felony driving under the influence, injury accident
7 Section 23612(a)(5) of the California Vehicle Code