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What Happens At The DMV Hearing?

  • By: Mace J. Yampolsky, Esq.
  • Published: June 22, 2018

There is a DMV hearing in addition to the criminal case. We would have to go to court for the criminal case
and the client would typically not appear on the first appearance as long as their lawyer appeared. The
lawyer would plead not guilty on their client’s behalf and set it for trial which would usually be set a couple
of months down the line.

This is when we would get a copy of the discovery, which would include police reports, witness statements
and blood analysis. I would review it with the client because hopefully the officer would have done
something wrong or there would be some element they could prove, like placing the person behind the
wheel, or the officer might not have actually had a reasonable suspicion to pull them over.

It might also happen that the person took the breath test but there was no alcohol in their breath, but
then they gave them a blood test and there was a controlled substance. We would make a motion to
dismiss because the law says the client would have to consent to a chemical test, but not more than one
chemical test. I have been able to knock it out in the past.

The officer could make sure they did a blood test and not a breath test if they suspected the person was
under the influence of a controlled substance like marijuana or something.

The DMV Hearing Is An Important Part Of DUI Cases

In addition to the criminal case there is an administrative proceeding called the DMV hearing. The DMV
hearing would decide whether or not the person had 0.08 blood alcohol level, and was driving or in actual
physical control of his vehicle case. The standard of proof in a criminal case would be “proof beyond a
reasonable doubt”, which is a much higher standard than “preponderance the evidence”, which is a civil
standard and it means “more likely than not”.

“Clear or convincing evidence” is between preponderance of the evidence and beyond a reasonable
doubt. This is supposed to be the standard for the DMV hearings which are conducted by an
administrative law judge (ALJ). Unfortunately, most of the ALJs use the standard of proof of “more likely
than not”.

Usually the client will lose if the officer who saw them driving showed up for the DMV hearing. But, there
are ways to win the DMV hearing; if the officer could not determine whether the person was driving or in
actual physical control, if there was some problem with the blood draw, meaning the person who took the
blood was not qualified as an expert in the State of Nevada. The officer is mistaken about what actually
happened. This does not happen often. In any event, according to Nevada law, if the blood alcohol level
was over a .08 and the person was convicted, or at the DMV hearing the person lost, their license would
be revoked for 90 days, then after 45 days they could get a restricted license so they could go back and
forth from work or school.

The person’s license would be suspended for 90 days if they were convicted of a DUI or if they lost the
DMV hearing. So the state gets two bites of the apple. The person could win the DUI case, or for example
the criminal case could be resolved as a stay of adjudication so the client would not be convicted of a DUI.
Because there was no DUI conviction, the person would not lose their license.

If the DMV determined the person had a blood alcohol level of over a .08 or if the officer had probable
cause to determine whether or not the person was driving under the influence, they could still take the
person’s license because they have a lower standard and they generally do not care about the two hour
rule.

I have argued this point on many occasions and cited the DUI law, but the DMV says that, “driving in the
State of Nevada is a privilege not a right, so they can set up whatever restrictions or laws they want. Since
it is not a criminal violation it does not need to be proven beyond a reasonable doubt.”

The big problem is that the Nevada legislature recently enacted a law, NRS 484C.210, which was amended
to state, “If a person failed to submit to an evidentiary test as requested by a police officer pursuant to
NRS 484C.210, their license privilege to drive must be revoked for one year”. This would be in addition to
the 90 days, and that is what the person would be looking at if they refused to take the test and made the
police get a warrant.

I think this is an impermissible constitutional violation and eventually someone will take this up to the
Nevada Supreme Court and have them rule. Unfortunately, I believe they would side with the DMV and
agree that driving is a privilege not a right, so it would be acceptable for the DMV to make these
regulations.

About the Author Attorney Mace Yampolsky has been achieving successful outcomes
during pre-trial negotiations as well as in the courtroom, defending
clients on nearly all types of criminal defense cases.

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