How to Win Your DMV Zero Tolerance Hearing
Learn the Winning Defenses, Prep & Background
How to Win Your DMV Zero Tolerance Hearing
While retaining a DMV attorney is always the best way to win your zero tolerance hearing, there is no reason you cannot do it yourself with a little preparation. We have compiled all the information you need to beat DMV.
5 Steps to Winning Your Zero Tolerance Hearing
There are five steps you must follow to win your admin per se hearing.
- Spend an hour or two reviewing the law and procedures applicable to all hearings. Pay particular attention to the material dealing with objections and subpoenas, as they will help you create a winning record at your hearing.
- Master the four elements DMV needs to prove at the zero tolerance hearing to suspend your license so you can begin to focus on the defenses that can actually win the case for you.
- Review the defenses typically available to a zero tolerance hearing and identify the ones you can use based on the facts of your own case.
- Prepare a written plan of attack so that your case is organized, you won’t forget anything, and you can stay calm and focused no matter what happens at the hearing.
- Conduct your hearing the way a DMV lawyer would, politely and subtly taking control while creating a winning administrative record.
If despite your best efforts, the hearing officer breaks the law and suspends your license anyway, you will have maximized your chances of overturning the suspension on a writ and forcing DMV to pay your attorney’s fees.
Understand the Basics of all DMV Hearings
Many of the issues you will encounter in a zero tolerance hearing are common to all DMV hearings and are listed on the main “Hearings” page of this site and in the “See Also” tab below.
For example, every DMV hearing requires a motorist to learn objections and closing argument; in addition, some others also require cross-examination and presentation of evidence. Where DMV calls a witness to testify, you will usually need to conduct a cross-examination of that witness; some cases will require that you present your own evidence (a defense witness, document or declaration) to rebut DMV’s prima facie case.
Don’t let these issues scare you! They’ll start to seem like common sense after a bit, and these pages will tell you everything from how to request your hearing in the first place to how to issue subpoenas to how to do your closing argument. We’ve even provided sample attack plans in our library to get you started.
Know the Elements of a Zero Tolerance Hearing
At a zero tolerance hearing, DMV must prove four things to suspend your license:
- That the officer had probable cause to believe you were DUI;
- That you were [lawfully stopped and] lawfully arrested or detained for violating the drinking/driving laws;
- That you were driving with a BAC of .01% or higher;
- When you were under 21 years of age.
The first two elements of an APS case really come down to the same issue: did the officer break the law in stopping and arresting you? The third element focuses on the chemical breath or blood test (usually a preliminary alcohol screening (PAS) test. If the hearing officer fails to prove any of these elements (or if you refute any of them when it’s your turn to present your case), DMV cannot legally suspend your license. Remember that DMV has the burden of proving these elements; you do not have to disprove them. Often just objecting to the evidence prevents DMV from legally proving its case against you.
Learn the Winning Defenses at a Zero Tolerance Hearing
In general there are three types of defenses at an zero tolerance hearing: (1) procedural defenses based on the way DMV hearings are conducted; (2) officer mistakes based on the way the traffic stop and arrest were conducted; and (3) PAS test defenses based on scientific foundation. Skim these defenses and, based on the facts of your case, identify the ones that might work for you.
- Procedural Hearing Defense #1: Illegal Continuance Granted
- Procedural Hearing Defense #2: Continuance Illegally Denied
- Procedural Hearing Defense #3: Illegal Telephone Testimony
- Procedural Hearing Defense #4: Use of Hearsay as Sole Evidence
- Officer Mistake Defense #1: Illegal Stop Because No Law Broken
- Officer Mistake Defense #2: Illegal Sobriety Checkpoint
- Officer Mistake Defense #3: Police Report Unsigned/Unsworn
- Officer Mistake Defense #4: No Driving/Time of Driving
- Officer Mistake Defense #5: Report Changed After Signing
- PAS Test Defense #1: No Adams Foundation for PAS
- PAS Test Defense #2: .01% Reading Not Illegal
Decide Which Defenses You Can Try
Once you understand the elements DMV needs to prove and the usual defenses available to challenge those elements, you will review the facts of your case to select the defenses you can mount based on those facts. A typical case will involve no more than two or three defenses, but there is no limit except for the requirement that there be a good faith basis behind each one.
Go over each of the typical defenses and ask yourself if the defense will be available to you based on what you expect will happen at the hearing. It may involve some educated guessing about what the hearing officer will do, but you have some clues available to you. For instance, did the hearing officer fail to subpoena any witnesses to the hearing? If so, that’s a clue that she will likely rely on the DS 367M to suspend you, and that provides some built-in defenses.
Replay the events of the stop and detention in your head and remember what the officer did or did not do. Were you told why you were stopped? Was that a valid reason? In an accident case, did anyone see you drive? Did the officer observe you for 15 or 20 minutes prior to a breath test? With the typical Zero Tolerance hearing defenses fresh in your head, a review of the facts of your case should trigger the ones that will work for you.
Create a Successful Plan of Attack
Once you know which defenses you can use based on the facts of your case, draft a written plan to guide you through the hearing. Your plan of attack will usually consist of four parts: objections to DMV evidence, cross-examination of any DMV witnesses, presentation of your documents or witnesses and closing argument.
Our library has a template for you to use to create your Plan of Attack, with pre-written objections and sample questions and argument. Your task is to take the specific defenses you have identified (say, no provable driving) and write in all the ways you plan to attack the “driving” element of DMV’s case. For example, you may object to the DS 367M because it’s unsigned, you may cross-examine an officer to make her admit she didn’t see you drive, you may offer your own testimony that you weren’t driving, and you’ll restate it in your closing argument that DMV has failed in its burden to prove that you were driving.
Section 13557 and 13558 contain the elements DMV must prove in order to suspend a motorist’s license administratively for zero tolerance.
Unlike an adult admin per se hearing, a zero tolerance case is usually based on a preliminary alcohol screening (PAS) test and not an evidential chemical breath or blood test. The difference is significant because the PAS test is not a Title 17-compliant device, and as such does not come with the presumption that it is reliable. (In an adult case based on .08% BAC, DMV just introduces the sworn statement DS 367 and the burden shifts to the motorist to attack the test.) But with the PAS test, DMV must establish it is scientifically reliable under People v. Adams before using it to suspend a license. Once DMV establishes its prima facie case by establishing the foundation, the burden shifts to the motorist to disprove one of the elements.
In general then, a motorist can beat DMV either by arguing that the DS 367M fails to establish an Adams foundation (so DMV does not make its prima facie case in the first place) and/or by attacking one or more of the elements of the prima facie case.
It will take some time to review the pages of this web site to become familiar with these issues, but none of them is overly complicated or beyond the grasp of the average motorist. If after reading these materials you feel you are in over your head, give us a call. We can represent you at your hearing at a very reasonable rate.
VC 13353.2, VC 13557, VC 13558