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DMV Refusal Hearing. Proof of Driving Not Required.


At a DMV Hearing involving a refusal to submit to a chemical test, the Courts have decided that proof of actual driving prior to the arrest is not required for the DMV to uphold a suspension. On the other hand, if a suspect submits to a chemical test, proof of actual driving at or above the legal limit is one of the elements to be proven.

In the case of Troppman v. Valverde (2007) 40 Cal.4th 1121, the court decided that the requirement to submit to a chemical test applies to those “who generally use the public streets or roadways in driving a motor vehicle in California” and not just those proven to have driven immediately prior to their arrest. In so ruling, the Court concluded that there were four issues to be proven at an administrative hearing following an allegation that a person refused a breath or blood test after an arrest for DUI in California;

  1. That the peace officer had reasonable cause to believe that the person had been driving a motor vehicle in violation of Section 23136, 23140, 23152, or 23153 of the California Vehicle Code;
  2. That the person was placed under arrest;
  3. That the person refused or failed to complete the chemical test or tests after being requested by a peace officer;

4. That the person had been told that his or her privilege to operate a motor vehicle would be suspended or revoked if he or she refused to submit to, and complete, the required testing.

If a person refuses to submit to a chemical test and denies driving, the focus of the argument should not be on the question of whether the defendant actually drove a vehicle prior to the arrest, but on the first issue above; Did the peace officer have reasonable cause to believe that the person had been driving a motor vehicle in violation of the sections listed? If the officer did not see any driving, and had no information that the suspect did drive, where is the reasonable suspicion?

If you have been arrested for a DUI in California, it is important that you contact a Los Angeles DUI lawyer immediately to contact the DMV to request a DMV admin per se hearing. Failure to request the hearing within ten days of the date of arrest will lead to an automatic suspension of at least one year in a refusal case.