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After being arrested for a DUI, no charges were filed by the District Attorney against me yet the DMV is still charging me.

Martinez, CA |

Is it possible to win an appeal with the DMV in this situation? It was my first offense and my BAL was .08 at the jail. The law is .08 or more in California. Is it worth getting an attorney to appeal with the DMV? Is there any chance of winning this or getting a lesser charge? I don't want to waste my time or money but am willing to risk it for a chance.

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Attorney answers 3


Assuming you are set for a DMV hearing, a .08 BAL gives us a number of defenses. There is a margin of error on these machines and an attorney using a forensic toxicologist as an expert witness to testify about the margin of error is one way to go. There may also be a rising BAL defense, where the claim is you were not at or over the limit at the time of driving, but possibly later. There are other defenses, but these two are usually the strongest in a case like yours.

More details are needed to answer all your questions. Feel free to post more information or call with any questions.


You will have had to have set a hearing date with the DMV within 10 days of your arrest, at which time a DMV hearing officer reviews the police report and your BAC level. Yes, you can appeal an adverse finding - but what is missing from your fact pattern is whether you had a hearing. You can do a google search for attnys in your area who have experience with DMV hearings and matters, especially admin per se hearings. Good Luck & Best Regards,

Judith M. Fouladi, Esq.
Orange County
(714) 384-6500


It appears that you missed the 10 day window to request a hearing and therefore the DMV has taken action against your license. Can you still try to get a hearing after the 10 days , yes – will it be easy to accomplish – no. You will need an attorney to assist you in that. Please understand that a .08 is only for the 23152(b). VC 23152(a) does not have a set BAC amount. If you want to try to appeal the DMV decision you will need an attorney.
Robert Driessen

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