A DUI arrest puts your license in front of the DMV as well as the criminal court, and the DMV hearing is where your driving privilege is decided. One of the most important battlegrounds in that hearing is hearsay, because the DMV often tries to prove its entire case with documents rather than live witnesses. I am Joel Brand, and here is how I work to exclude or undercut hearsay evidence at a DMV hearing.
Why this issue is worth fighting
It would be easy to assume that because DMV hearings allow hearsay, there is nothing to be done about it. That is not true. The relaxed rules do not make every piece of hearsay automatically admissible or reliable, and they do not eliminate your right to subpoena and confront the people behind the documents. Treating the DMV's paper case as unchallengeable is exactly the mistake that costs people their licenses. The reality is that a focused, well-prepared attack on the hearsay, on what it is, whether it is reliable, and whether the witness can be made to appear, is one of the most effective ways to defend the license.
What hearsay evidence is
Hearsay is a statement made outside the current hearing that is offered to prove the truth of what it asserts. Under California Evidence Code section 1200, hearsay is generally inadmissible precisely because the person who made the statement is not present to be cross-examined. There are exceptions, but the core problem with hearsay is reliability: when the declarant is not in the room, there is no way to test whether the statement is accurate, complete, or even truthful. That is exactly why it matters so much in a DMV hearing built largely on paperwork.
Why hearsay dominates DMV hearings
DMV hearings are not criminal trials, and the rules of evidence are looser. The DMV routinely tries to prove its case through documents, above all the officer's sworn DS-367 form and the arrest report, rather than by calling the officer to testify. Chemical test results are often presented through paperwork from analysts who never appear. In other words, the DMV's case is frequently built almost entirely on hearsay, which is one reason the hearing can feel stacked against the driver. Recognizing that the case is paper-based is the first step to taking it apart.
Objecting and forcing live testimony
When the DMV relies on hearsay, I object to it on the record, and where it matters I subpoena the people behind the documents, the arresting officer and, where relevant, the analyst. Forcing the DMV to produce a live witness changes everything: now the officer can be cross-examined about the stop, the observations, and the testing, and the comfortable written narrative has to hold up under questioning. Many cases that look strong on paper weaken considerably once the officer has to answer for the gaps in person. The right to subpoena and confront is one of the most powerful tools a driver has at this hearing.
Attacking foundation and reliability
Even where hearsay may technically come in, it still has to be reliable, and the DMV has to lay a proper foundation for it. A chemical result presented without adequate proof of how the device was calibrated and maintained, or without a proper showing of the testing procedure, can be challenged as lacking foundation. The same is true where the report is internally inconsistent or contradicted by the video. I press on whether the document actually establishes what the DMV needs it to establish, because an unreliable piece of hearsay should carry little or no weight even in this relaxed forum.
Challenging the document exceptions
The DMV often leans on exceptions for official and business records, under Evidence Code sections 1271 and 1280, to get its paperwork admitted. But those exceptions have requirements. A record has to be made in the regular course of duty, at or near the time of the event, by someone with knowledge, under circumstances indicating trustworthiness. I test each of those elements: whether the record was timely, whether it was prepared by someone with actual knowledge of the facts, and whether the surrounding circumstances really support its reliability. When an exception is invoked without its foundation, that is an opening to keep the evidence out or to argue it deserves little weight.
The DS-367 is often the weak point
The officer's sworn DS-367 statement anchors most DMV cases, and because it is filled out quickly in the field, it frequently contains errors, unchecked boxes, missing times, or a defective or improper signature. Since the DMV often relies on this single document instead of live testimony, a defective DS-367 can leave a genuine hole in its proof. I scrutinize this form line by line, because the same paperwork the DMV treats as conclusive is often where its case is most vulnerable. See the DMV discovery packet and the related DS-367 mistakes.
How preparation makes the difference
Excluding or undermining hearsay is not something that happens by accident at the hearing; it is the product of preparation. I review the entire discovery packet in advance, identify every statement the DMV is relying on, decide which witnesses to subpoena, and build the objections and foundation challenges before walking in. Keeping a careful record of every objection and ruling also matters, because it preserves the issues if the case has to go to an appeal by writ of mandate. The driver who shows up prepared to fight the paperwork is in a far better position than one who treats the hearing as a formality.
How this fits the larger defense
Attacking hearsay is part of the broader strategy for the DMV hearing and the criminal case alike, and it connects directly to the testing and procedural challenges in my top DUI defenses. Because the two cases run on separate tracks, work done here can also surface weaknesses useful in court. The point is simple: the DMV should not be allowed to suspend your license on untested paper, and holding it to reliable, properly founded evidence is exactly how these hearings are won.
Facing a DMV hearing? Let's challenge the paperwork.
Whether the DMV's hearsay can be kept out or undercut depends on the specific records in your case, the DS-367, the report, the testing paperwork, which is exactly what I review with you line by line. Use the free case analysis on this page, or call me directly at (888) 271-6644. I answer my own phone, 24/7.
From the DUI blog: What Happens When Another Driver or Pedestrian Gave a Statement Against You at Your DUI Arrest.