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Nevada DMV Administrative Hearings

Last Modified: December 18, 2023


A DMV Administrative Hearing is Civil in Nature Not Criminal

Under Nevada law, the administrative driver’s license revocation process is considered civil in nature rather than criminal, and the objective is not to punish the licensee but to protect the public from dangerous drivers. Weaver v. State, Dep’t of Motor Vehicles, 121 Nev. 494, 498-99, 117 P.3d 193, 197 (2005). Further, in revoking a driver’s license, the DMV does not need to prove that the driver was in fact operating or in actual physical control of the vehicle while under the influence, but that the police officer directing that the driver be tested for alcohol consumption have reasonable grounds for believing that the driver had been operating the vehicle while under the influence. Id. at 499, 117 P.3d at 197.

Due Process is Required at a DMV Administrative Hearing

Prior to the DMV taking away licensee’s driver’s license, due process requires that the licensee receive notice of the suspension and the opportunity to be heard. In essence, a DMV administrative hearing is a mini trial without a rigid application of the rules of evidence.
You are allowed to have witnesses. All witnesses are sworn in to testify under oath. You are allowed to testify and cross-examine witnesses. You can present evidence, object to adverse evidence being presented, and caselaw/statutory provisions are in full force and effect. Testimony and the proceedings are recorded for preservation of appeals.
In a Nevada DUI case, the scope of review during a DMV driver’s license revocation hearing is limited as follows:
  1. Whether the person wasn’t able to submit an evidentiary test;
  2. Whether a person’s blood alcohol level went over the legal limit .08 at the time of the test; and
  3. Whether the DUI officer who ordered an evidentiary test had reasonable grounds, at the time he or she ordered the test, to believe the person had been driving or in actual physical control of a vehicle while intoxicated.
The standard for an adjudication of guilt in a DMV administrative proceeding is preponderance of the evidence as opposed to the more ubiquitous and higher standard in criminal cases which is beyond a reasonable doubt.

Do I Receive or Request An Administrative Hearing?

You do not have to elect to receive or have a DMV administrative hearing. However, if you do not have an administrative hearing your drivers license is subject summary to suspension. The authority to request a DMV administrative hearing is governed by NRS 484C.230(1).

There is no cost for a DMV administrative hearing.

Winning or losing the DMV administrative hearing has no bearing on the criminal case and a loss of the administrative hearing cannot be used against you at trial.

When Do I Request A DMV Administrative Hearing?

Whether or not a licensee provides blood or breath will determine how quickly he or she will receive a notice of the suspension.

For a breath test a licensee is subject to immediate revocation if the results of the breath sample register at .08 or higher. Therefore, if you opted to take a breath test a police officer will confiscate your license if the result is .08 or higher and issue you a temporary permit to drive.

You then have SEVEN DAYS to request administrative review. If you request an administrative hearing within seven days you can receive a temporary license from the DMV until your administrative hearing.

For a licensee that opts to take a blood test, a suspension of your license will not occur until the results of the alcohol or drug content of the blood sample are determined. This process usually takes several months. You will receive a registered letter from the DMV advising you that your license will be suspended. This notice has instructions on how to request an administrative hearing. Your license will not be suspended until an adjudication of the DMV administrative hearing.

The scope of the administrative hearing is limited to determining whether the motorist had a concentration of alcohol of 0.08 or more in his or her blood or breath at the time of the test. NRS 484C.230(2). In reaching that determination, the affidavit of “a chemist and any other person who has qualified in a court of record in this State to testify as an expert witness regarding the presence . . . of alcohol” must be admitted. NRS 50.320(1) and (2).

Where Does A DMV Administrative Hearing Take Place?

2701 E. Sahara Ave.
Las Vegas, NV 89104
(702) 486-4940
555 Wright Way
Carson City, NV 89711
(775) 684-4790
3920 E. Idaho St.
Elko, NV 89801
(755) 753-1239

After The Nevada DMV Administrative Hearing

There are times when the Administrative Law Judge rules on the outcome of the DMV administrative hearing immediately. However, it is much more typical for final adjudication of the administrative hearing to take a few months. Both the licensee and the licensee’s attorney, if represented, will receive the results of the hearing in the mail. If the final determination of the administrative hearing is that the motorist’s license should be suspended you have thirty days to appeal that decision.

How Long Will My License Be Suspended?

The licensee will lose his or her license for a first offense DUI for a period of ninety days. The licensee, will be eligible to receive a restricted license to drive to work, school, medical appointments, etc., after 45 days of the suspension.
For a second offense DUI within seven years the licensee is subject to a one-year suspension.
For a third-offense DUI within seven years or another felony DUI the licensee is subject to a 3 year suspension, though you may be able to drive with the application of a vehicle interlock device after one year. NRS 483.460
Interlock devices can be problematic and lead to unintended consequences contact us today at 702-660-1234 to ensure that your rights are protected and you do not have a cascade of unintended results.
Las Vegas Criminal Defense ATTORNEY

Standard of Review on Appeal

Administrative review of an agency’s decision is conducted pursuant to the Nevada Administrative Procedures Act, codified in NRS Chapter 233B. Chapter 233B also governs judicial review of an administrative law judge’s decision. NRS 233B.135 provides the standard of review:

1. Judicial review of a final decision of an agency must be:

(a) Conducted by the court without a jury; and
(b) Confined to the record. In cases concerning alleged irregularities in procedure before an agency that are not shown in the record, the court may receive evidence concerning irregularities.

2. The final decision of the agency shall be deemed reasonable and lawful until reversed or set aside in whole or in part by the court. The burden of proof is on the party attacking or resisting the decision to show that the final decision is invalid pursuant to subsection 3.

3. The court shall not substitute its judgment for that of the reviewing court on a question of fact. The court may remand or affirm the final decision or set it aside in whole, or in part, if substantial rights of the petitioner have been prejudiced because the final decision of the agency is:

(a) In violation of constitutional or statutory provisions;
(b) In excess of the statutory authority of the agency;
(c) Made upon unlawful procedure;
(d) Affected by other error of law;
(e) Clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or
(f) Arbitrary or capricious or characterized by abuse of discretion.

NRS 233B.121(8) provides: “Findings of fact must be based exclusively on substantial evidence.” According to the Torres court, because the Administrative Law Judge’s conclusions of law “will necessarily be closely related to the agency’s view of the facts, [they] are entitled to deference, and will not be disturbed if they are supported by substantial evidence.” State, Dep’t of Motor Vehicles v. Torres, 105 Nev. 558, 560-61, 779 P.2d 959, 960-61 (1989). Substantial evidence has been defined as that which “a reasonable mind might accept as adequate to support a conclusion.” State, Emp. Security Dep’t v. Hilton Hotels Corp., 102 Nev. 606, 608, 729 P.2d 497, 498 (1986). Additionally, “[s]ubstantial evidence need not be voluminous” and may even be “inferentially shown by [a] lack of [certain] evidence.” Wright v. State. Dep’t of Motor Vehicles, 121 Nev. 122, 110 P.3d 1066, 1068 (2005), citing, City of Reno v. Estate of Wells, 110 Nev. 1218, 1222, 885 P.2d 545, 548 (1994)(emphasis in original).

In Hilton Hotels, the Nevada Supreme Court further defined the substantial evidence standard:
Substantial evidence was well defined in Robertson Transp. Co. v. P.S.C., 159 N.W. 2d 636, 638 (Wis. 1968):

[S]ubstantial evidence [does] not include the idea of this court weighing the evidence to determine if a burden of proof was met or whether a view was supported by a preponderance of the evidence. Such tests are not applicable to administrative hearings. We [equate] substantial evidence with that quantity and quality of evidence which a reasonable man could accept as adequate to support a conclusion . . . . [It] does not permit this Court to pass on credibility or to reverse an administrative decision because it is against the great weight and clear preponderance of the evidence, if there is substantial evidence to sustain it. 102 Nev. at 608 n.1, 729 P.2d at 498 n.1 (emphasis in original).

Thus, regardless of a court’s own assessment of the evidence, a court must affirm the Administrative Law Judge’s decision if it finds that such decision was based upon that quantity and quality of evidence which a reasonable mind could accept as adequate to support the conclusion.

DMV administrative hearings are notoriously difficult to “win”, that’s why at Spartacus Criminal Defense Lawyers our attorney’s practice regularly before all administrative tribunals. You need an experienced DMV hearing attorney to protect your drivers license. The Spartacus Criminal Defense Lawyers has the experience you need to deliver the results you want.

Arrested For A DUI? Contact The Spartacus Criminal Defense Lawyers

If you have been arrested for a DUI in Las Vegas you not only have to worry about the criminal case and its implications but your ability to drive a vehicle is in jeopardy. Call us today at 702-660-1234 for a consultation to ensure that your rights are protected.
(702) 660-1234