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After you are arrested for a first time DUI there are two separate government actions that you must be aware of. First, the DMV will take steps to suspend your driver's license. Second, the local government prosecutor will file a criminal case against you. These government actions are independent of the other, but they interact.


The immediate action against you following a DUI arrest is the DMV's attempt to suspend your license. If you don't request a DMV hearing within 10 days of your arrest they will suspend your license without a hearing. You may request the hearing on your own, or you may hire an attorney to request the hearing for you.

This hearing is called a "DMV Admin Per Se Hearing". We will shorten this term to "APS". This is an "administrative hearing", which is like a trial in front of a DMV hearing officer who acts as both the prosecutor and the judge. As in a trial, both parties offer evidence and testimony. Unlike a trial, an administrative hearing is shorter and more informal. At the APS, the hearing officer will first present evidence to establish your guilt of driving under the influence. After this, the hearing officer will hear your evidence. After you or your attorney have made your case, the hearing officer will decide if there is enough evidence to suspend your license.

The decision to suspend your license is determined through evidence on three main elements of the case. They are: 1. Did the officer have probable cause to believe you were driving under the influence. 2. Were you lawfully stopped and lawfully arrested for driving under the influence. 3. Were you driving with a BAC (Blood Alcohol Concentration) of %.08 or higher.

The first two elements of the case come down to the same issue: was the officer legally allowed to stop and arrest you? The third element focuses on scientific tests that involve principles of alcohol metabolism. Specifically, did the officer properly conduct breath or blood tests to accurately measure your BAC?

If the hearing officer fails to prove any one of these elements, the DMV cannot legally suspend your license. Remember that DMV has the burden of proving these elements; you do not have to disprove them.

You or your attorney may make factual or procedural arguments during your case. These defenses may be on different grounds. First, you may attack the substance (facts and evidence) of the DMV's case. This means that someone lied or there wasn't enough proof of their statement. Secondly, you may attack the procedure undertaken to prosecute your case. This attack focuses on the steps taken by the government to investigate or prosecute your case. Lastly, you can attack the science behind their chemical results. If any of these attacks on the DMV's case are successful then you will not have your license suspended.


A criminal case for DUI is like a DMV case against your license, but it is more complex. The criminal case relies on the same evidence, but you have more protections. Specifically, in the court case the prosecutor and a judge are separate entities. There are also more formal rules for allowing evidence. This is to make sure the proof used against you is based on solid ground.

Evidence in your case will still be like the DMV hearing, but it will have more nuance. Evidence on three elements of the case is still important. Whether the officer had probable cause to believe you were driving under the influence is important. Whether you were you lawfully stopped and arrested for driving under the influence also plays a part. Lastly, the prosecutor has two separate ways to prove that you were impaired. Firstly, the prosecutor can show that you were driving with a Blood Alcohol Concentration of %.08 or higher through scientific evidence. This scientific evidence can be any combination results from the preliminary alcohol screening device, breath testing, or blood testing. Your attorney can review and challenge this evidence or hire an expert witness to challenge its accuracy.

Alternatively, the prosecutor can show proof of impairment to you driving skills. This is shown with proof of bad driving or diminished motor skills. This kind of evidence is usually proven through Field Sobriety Tests or observation of poor driving. Your attorney can review and challenge this evidence or offer alternative explanation for your driving.

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