The DMV Hearing After a California DUI Arrest: The 10-Day Rule
A California DUI arrest starts two cases, not one. The criminal case is the one everyone expects. The other is an administrative action by the Department of Motor Vehicles against your driver’s license, and it runs on its own clock. If you want a hearing before the DMV suspends your license, you generally have 10 days from the day the officer handed you the suspension notice to ask for one. Miss that window and the suspension takes effect on its own, usually 30 days after the arrest, whether or not the criminal case has even been filed.
The pink paper is the suspension order
When an officer arrests a driver age 21 or older for DUI and a chemical test shows 0.08 percent or more, or the driver refuses testing, the officer takes the California license and serves a DMV form in its place. Law enforcement knows it as the DS 367; drivers know it as the pink paper. Its full name is the Administrative Per Se Suspension/Revocation Order and Temporary Driver License, and it does both jobs at once. It is a 30-day temporary license, and it is the official notice that the DMV is suspending your driving privilege when those 30 days run out.
The Vehicle Code requires the notice to state the reason, the effective date, your right to a hearing, how to request one, and the date by which you must request it. The DMV usually sends nothing else; set the pink paper aside and the suspension simply begins on day 31.
Why 10 days
Vehicle Code section 13558 says a driver who wants a hearing before the suspension takes effect must request it within 10 days of receiving the notice. The DMV treats that window as the deadline; its own hearing guide says a request made outside it forfeits the hearing. The clock starts the day you receive the order, which for most drivers is the night of the arrest.
A timely request does two things. The DMV must either decide the hearing before the 30-day temporary license expires or, more commonly, extend your temporary driving privilege until it does, which usually keeps you driving while the case is pending. And you gain the right to review the DMV’s evidence before the hearing; a driver who never requests a hearing never sees it.
Request the hearing through the DMV’s Driver Safety Office for the area where the arrest happened. The phone number is on the pink paper. Ask for the hearing, a stay of the suspension, and discovery, and note the date and the name of the person you spoke with.
Two cases, two tracks
The DMV case and the criminal case are legally independent. The Vehicle Code describes the DMV’s determination as a civil matter that is independent of guilt or innocence, and nothing decided at the DMV binds the criminal court, or the other way around. The DMV uses a Driver Safety hearing officer, not a judge, and it does not wait for the prosecutor, who may not even have filed charges yet.
The tracks do touch at the ends. If you are acquitted of the DUI charge, the DMV must reinstate your license. If the charge is reduced to reckless driving, that does not undo the DMV suspension. If the district attorney declines to file for lack of evidence, or the court dismisses for insufficient evidence, the Vehicle Code gives you a renewed right to request a DMV hearing within one year of the arrest. If you are convicted, the court suspension and the DMV suspension run concurrently.
What the hearing is about
An APS hearing is narrow by design. For a driver who took a chemical test, the hearing officer decides only three questions:
- Did the officer have reasonable cause to believe you were driving under the influence?
- Were you lawfully placed under arrest?
- Were you driving with a blood-alcohol concentration of 0.08 percent or more?
In a refusal case the third question changes: did you refuse or fail to complete the test after an officer asked, and were you told that refusing would cost you your license?
Everything else is off the table. The hearing officer does not weigh whether you are a safe driver or whether the suspension is fair, and has no power to shorten it. If the three facts are established, the suspension stands.
A lower standard of proof, and a different kind of judge
In criminal court the prosecutor must prove guilt beyond a reasonable doubt. At the DMV the standard is a preponderance of the evidence: more likely than not. The rules for admitting evidence are looser too. The officer’s sworn statement on the DS 367 generally comes into evidence without the officer in the room and, by itself, usually makes the DMV’s case. These hearings rarely turn on general denials. When a suspension is set aside, it is usually because of a specific defect: a sworn statement that is unsigned or wrong on the facts, a stop without a lawful basis, a breath test taken without the required observation period, a gap in a blood sample’s chain of custody, or a refusal admonition that was never actually read.
The hearing officer is a DMV employee, not an administrative law judge. For years that officer also presented the DMV’s evidence, acting as both prosecutor and judge. In California DUI Lawyers Association v. California Department of Motor Vehicles (2022), the Court of Appeal held that combining the advocate and fact-finder roles in a single DMV employee created an unacceptable risk of bias and violated due process, and it directed that the DMV be permanently enjoined from having its hearing officers advocate for the DMV in the same proceeding they decide. The same judgment bars DMV managers from privately pressuring hearing officers to change their decisions.
How long the suspension lasts
For a driver 21 or older who took the test and has no DUI conviction or prior administrative suspension within the past 10 years, the APS suspension is four months. With a prior within 10 years, it is one year.
Refusing or failing to complete the chemical test is treated more harshly. A first refusal is a one-year suspension; a refusal within 10 years of a prior DUI conviction or administrative suspension is a two-year revocation; with two or more priors it is a three-year revocation. The restricted-license options described below generally are not available during a refusal suspension.
Driving again sooner: restricted licenses and the interlock
A first-offense driver who took the test has two routes back on the road before the four months run. Under Vehicle Code section 13353.6, once the suspension takes effect you can apply for a restricted license by installing a certified ignition interlock device in every vehicle you drive, enrolling in a licensed DUI program, filing proof of insurance (an SR-22), and paying the reissue fee. There is no waiting period, and the restriction ends when the suspension would have ended. Time spent on the interlock during the DMV suspension is credited against any interlock term the court later imposes after a conviction.
Under section 13353.7, the older route, you serve 30 days with no driving at all, then receive a restricted license limited to work and the DUI program, again on proof of program enrollment and insurance. That restriction lasts five months. Either way, the restricted license is applied for through the DMV; it is not something the hearing officer can grant at the hearing.
What to do in the first 10 days
Call the Driver Safety Office and request the hearing, the stay, and discovery. Keep the pink paper; it is your license until the DMV says otherwise. Write down everything you remember about the stop while it is fresh: the reason the officer gave, when you last ate and drank, how long you were watched before the breath test, and exactly what you were told about refusing. If blood was drawn, ask about having the sample retested. A lawyer can request the hearing in your name, subpoena the officer and the records, and cross-examine.
You have the right to subpoena witnesses and documents: the arresting officer, the breath instrument’s calibration and maintenance records, the lab’s chain-of-custody records, dispatch logs, and video. Two catches: you pay witness fees and mileage, and someone other than you must serve the subpoena. Request discovery at least 10 days before the hearing date. If the decision goes against you, the suspension begins five days after the DMV gives notice, and you can ask the superior court to review the decision by writ.
For the criminal side of a DUI arrest, see Arrested for DUI in California? The Court Case and the 10-Day DMV Clock. For clearing a conviction from your record later, see Clearing a Criminal Record in California: Expungement Under Penal Code 1203.4.
Holding a pink DMV form and counting days? Ask a legal question.