When you drive in California, you consent to take a test of your breath or blood — or under certain circumstances, your urine — if you are arrested for driving under the influence of alcohol, drugs, or a combination of both.
If you are under 21, you must submit to a preliminary alcohol screening (PAS) or one of the other chemical tests if you have been detained and an officer has reason to believe that you were drinking alcohol. If your BAC measures .01% or a higher on the PAS, the officer may take your license; issue a temporary license for 30 day; give you an order of suspension for one year; and then determine whether to release you, turn you over to juvenile authorities, or contact your parents. You may request a DMV administrative hearing within 10 days.
If your PAS showed a BAC of .05%, the officer may require you to submit to either a breath or blood test. Some PAS devices provide a record, which may be submitted in court as evidence. Other PAS devices do not provide a record, so the officer may ask for a breath or blood test after the PAS. You do not have a right to consult with a lawyer before selecting or completing a test.
If a subsequent test reveals a BAC of .05% or higher, the officer will arrest you for DUI and detain you until you can be turned over to your parents or juvenile authorities.
If the officer reasonably believes you are under the combined influence of alcohol and drugs and you have already submitted to a PAS and/or a breath test, you may still be required to submit to a blood or urine test, because the breath test does not detect the presence of drugs.
If you refuse to submit to any of the tests, your driving privilege may be suspended. Even if you change your mind later and agree to a test, your driving privilege may be suspended for both reasons, although both actions will run concurrently. A DUI refusal can have severe consequences both in court and the DMV.
What Is an Administrative Hearing?
In most circumstances where the DMV orders a discretionary action against a person’s driving privilege, that person has the right to a hearing before the department to contest the action and review the evidence supporting it. (A discretionary action is one where the law permits, but does not require, the DMV to order an action.) A person must request a hearing within 10 days of receiving notice of the action against the driving privilege. The hearing proceedings are recorded and conducted by telephone or in person. The hearing is held before a Driver Safety Hearing Officer of the department.
At the hearing, the driver is informed of the legal grounds for the action and has the opportunity to review and challenge the evidence of the department and to present evidence, witnesses, and testimony to persuade the department to modify or rescind the action. The rules that control these hearings are found in the Vehicle Code, the Government Code (Administrative Procedures Act), and various Appellate and Supreme Court rulings. Following the hearing, the Driver Safety Hearing Officer will make a decision to uphold (sustain), modify, or rescind (set aside) the DMV action.
The DMV hearing is an administrative proceeding regarding your driving privilege and the circumstances surrounding the arrest, not whether you are innocent or guilty of a criminal act.
If you took a blood, breath, or (if applicable) urine test:
- Did the peace officer have reasonable cause to believe you were driving a motor vehicle in violation of Vehicle Code Section 23140 , 23152 , or 23153?
- Were you placed under lawful arrest?
- Were you driving a motor vehicle when you had 0.08% or more alcohol in your blood?
If you refused or failed to complete a blood, breath, or (if applicable) urine test:
- Did the peace officer have reasonable cause to believe you were driving a motor vehicle in violation of Vehicle Code Section 23140 23152 , or 23153?
- Were you placed under lawful arrest?
- Were you told that if you refused to submit to or failed to complete a test of your blood, breath, or (when applicable) urine, your driving privilege would be suspended for one year or revoked for two or three years?
- Did you refuse to submit to or fail to complete a blood or breath test, or (if applicable) a urine test after being requested to do so by a peace officer?
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You have the right to be represented by an attorney or other representative at your own expense, but representation by an attorney is not required.
You have the right to review the evidence and cross examine the testimony of any witnesses for the department and to present evidence and witnesses on your behalf, as well as the right to testify on your own behalf.
Following the hearing, you have the right to be provided a decision in writing. Should the decision resulting from the hearing be against you, you have the right to request the department to conduct an administrative review of the decision, as well as the right to appeal the decision to superior court.
Legislation authorizes the DMV to collect a $120 fee for a Departmental Review following an Administrative Per Se (APS) hearing, pursuant to Vehicle Code 13353 and 13353.2. Questions regarding this fee should be directed to the Driver Safety Office where your hearing was conducted.
Requests for the administrative review or to appeal the decision in court must be made within a certain time period, dependent on the type of hearing and as described in the Vehicle Code. These time periods and other specific information concerning your rights will be stated on the notice containing the hearing decision.
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