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DMV Win at a Chemical Test Refusal Hearing at the San Bernardino DSO

Case History: California Drivers Advocates was retained to defend a client whose driver license was being suspended by the California Department of Motor Vehicles following an arrest for DUI in which he allegedly refused to submit to a Chemical Test.  Under California’s Administrative Per Se Laws, a driver who is lawfully arrested for DUI must submit to a chemical test of their blood or breath at the request of a Peace Officer.  If a driver refuses to submit to a chemical test, they are subject to the complete revocation of their driver license for anywhere from 1 to 3 years, depending on a variety of factors.

One evening in April 2017, our Client was driving in The City of Hesperia when he was stopped by a San Bernardino County Sheriff’s Deputy who alleged that he had been weaving within his lane.  When he admitted consuming alcohol prior to driving, the Deputy ordered our Client out of his vehicle to participate in a DUI investigation.  The Deputy’s report would later allege that our Client’s eyes were bloodshot and watery, that his speech was slurred and that he was unsteady on his feet.  The Deputy administered a series of Field Sobriety Tests that he felt our Client performed poorly.  Our Client was subsequently arrested for suspicion of DUI and was transported to the Sheriff’s Department in Victorville.

While at the station in Victorville, the Deputy directed our client to submit to a blood test.  When our Client flatly refused the blood test, the Deputy told him that failure to submit to the blood draw would not delay the process as they would simply draw the blood by force. When our Client again refused, the Deputy Sheriff contacted an “on-call” judge who issued a Search Warrant for the forcible extraction of a blood sample and the blood was subsequently drawn.

When he was released, our Client’s driver license was confiscated and he was issued an “Order of Suspension” advising him that the DMV was initiating the process to suspend or revoke his license. The order further told him that to defend himself; he was required to contact the Department within ten days to schedule a hearing.


DMV’s Position: The California DMV has no discretion in matters of this nature.  If a driver is found to have refused a Chemical Test following a lawful arrest for DUI, the department MUST suspend or revoke the driving privilege.

To take a Suspension or Revocation action in a “Refusal” case, the DMV must establish the following issues:

  • Did the Peace Officer have a lawful reason to come into contact with the driver and upon doing so, have reasonable cause to believe that he had been driving in violation of the Vehicle Code?
  • Was the driver lawfully arrested?
  • Following a law arrest for DUI, was the driver properly advised of the requirement that he submit to a Chemical Test and what the penalties would be for refusal?
  • Did the driver refuse to submit to a Chemical Test after being asked to submit to one by a Peace Officer.


Our Defense: When our client retained us, we immediately went to work to schedule his Chemical Test Refusalhearing with the San Bernardino Driver Safety Office.  When our request was granted, we also asked that the Department place a “Stay” on the suspension. This means the DMV stops the suspension until the outcome of his hearing.  This can be critically important for a driver as a case of this nature could take months to resolve.

Once the hearing was scheduled and a Stay was granted, our defense began with a detailed interview of the client to determine his complete medical history, driving history, criminal history and the events leading to his arrest.

Once we received the police reports from the DMV (referred to as Discovery), we conducted a critical review of that material.  Based upon that review, we issued a series of Subpoenas which directed the Police Agency to release certain items of evidence that we considered important.  In this particular case, the issuance of these subpoenas was pivotal and turned the case upside down.

When a Peace Officer arrests a person for suspicion of DUI, the officer has an obligation to tell that driver they must to submit to a Chemical Test of their blood or breath.  There are a few exceptions to this rule, but generally speaking, the driver has the right to choose between the two tests.  If that driver then refuses to submit to a Chemical Test, then the Officer has an obligation to advise the driver what the potential consequences would be if he continues to refuse.

In our case, a critical review of the police reports clearly revealed that the Deputy demanded that the Client submit to only a blood test.  There was no option for a breath test.  Also, the reports revealed that the Deputy did not properly advise our Client of the penalties he faced for refusing a Chemical Test.  When we saw that, we issued a Subpoena for the production of any audio/video recordings that had been made by the Deputy.  We received an audio “belt” recording made by the Deputy during his conversations with our Client.  Not only did the audio recordings confirm that the Deputy did not offer a breath test and did not explain the penalties for refusal, it also revealed the Deputy was quite verbally abusive and threatening.

As required by the Government Code, we filed a “Notice of Affirmative Evidence” with the DMV hearing officer ten days before the hearing.  At the hearing, our evidence, including the audio recording was accepted by the hearing officer without objection.  When we pointed out the weaknesses in the police report and then confirmed the problems by way of the audio recording, the hearing officer issued an Order of Set Aside on the spot.


Call CDA Today.  Let us put you back on the road.

The DMV Defense Experts at California Drivers Advocates include former police officers, DMV Hearing Officers, Investigators and Scientists.  Our training, our experience and our reputation provide any driver the best opportunity to win their Administrative Hearing.

If your driver license is being suspended or revoked because you have refused a chemical test, don’t despair; these cases can be won.  Don’t let anyone convince you that you are in a hopeless situation.

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