Why does an Administrative Per Se Hearing Matter?
When a driver is suspected of driving under the influence (DUI), the California Department of Motor Vehicles (DMV) has the discretion to bring an action to revoke the person’s driving rights. Typically, the DMV will suspend the driving privileges of a person who was arrested while driving with 0.08 percent or more of alcohol in his/her blood.
A person 21 years of age or under will be subjected to license suspension if driving with a blood-alcohol concentration (BAC) of 0.01 percent or more.
And it only takes 0.04 percent to trigger suspension if driving a vehicle that requires a commercial driver’s license when cited.
If a person is already on probation for a previous DUI and is found to have consumed any alcohol while driving (i.e., maintains a 0.01 percent BAC), he/she will automatically have their license suspended. Anyone who refuses a chemical test following a DUI stop will be subject to license revocation.
After notification, a driver is given the opportunity to make a case as to why the DMV should “set aside” its disciplinary measures. To do this, a motorist must request an Administrative Per Se (APS) Hearing. This request must be made within 10 days of receiving notice of the action (it is best to request an APS hearing immediately after being arrested or detained for any of the offenses noted above).
A driver should be sure to request the DMV forward a copy of the police report and prepare a defense as soon as the application for a hearing has been made. Although the hearing takes place at the DMV and not in a courtroom, it is not to be taken lightly – losing an APS hearing can have serious consequences for any driver.
APS hearings take place at driver safety offices, are recorded and are presented before a DMV Driver Safety Hearing Officer. During the hearing, the driver is:
- Advised of the legal grounds for the action;
- Presented with the DMV’s evidence;
- Given an opportunity to challenge the DMV’s evidence;
- Allowed to introduce evidence, offer witnesses and submit testimony.
The purpose of the proceeding is to convince the hearing officer that the measures taken were improper and request that the DMV modify or rescind the action against his/her license.
California Vehicle Code Section 13353, which governs APS hearings, states that the scope of the administrative review should cover:
- Whether the peace officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23140, 23152, or 23153.
- Whether the person was placed under arrest.
- Whether the person refused to submit to, or did not complete, the test or tests after being requested by a peace officer.
- Whether, except for a person described in subdivision (a) of Section 23612 who is incapable of refusing, the person had been told that his or her driving privilege would be suspended or revoked if he or she refused to submit to, or did not complete, the test or tests.
This means the DMV must demonstrate that the police officer had reasonable cause to believe the person was driving with a blood-alcohol concentration exceeding the legal limit of 0.08% (note: the BAC limit is lower for motorists under 21 years of age, drivers of commercial vehicles and for those already on probation for driving under the influence).
The burden of proof is on the DMV to substantiate its case. However, it is necessary to keep in mind these laws were enacted decades ago by the California Legislature while under immense pressure to bring down the drunk driving rate. Therefore, the statutes have been drafted so if any motorist is believed to have driven a vehicle with a BAC over the legal limit, he/she is per se presumed to be in violation of the law and receives automatic punishment. Although U.S. jurisprudence considers a person innocent until proven guilty, the Administrative Per Se Law reverses the principle by forcing a person to prove their innocence under the assumption of guilt. Standard evidence introduced by the hearing officer includes any breathalyzer results, urine tests, blood work and/or police reports.
The DMV operates under the assumption that all the evidentiary statements and information contained within the police reports are reliable and true, therefore it is incumbent upon the driver to challenge the DMV’s position and demonstrate his/her innocence. Even though the statute allows for drivers to defend themselves at APS hearings, there are few lay individuals who possess the know-how required to succeed at overcoming these various hurdles and presumptions.
Following the hearing, the driver safety hearing officer will make a determination whether to sustain (uphold), modify (change) or set aside (rescind) its original action. If the hearing officer does not believe a driver has properly rebutted the DMV’s case (i.e., finds that the driver was indeed driving while intoxicated), then it may suspend the person’s license in accordance with the following guidelines:
- Consenting Adult First Offender (over 21) – The DMV will levy a four-month suspension of the driver’s license. After 30 days the driver can apply for a “restricted” license.
- Non-Consenting Adult First Offender (over 21) – If the first-time offender “fails to complete” a chemical test in response to the police officer’s request, the DMV will suspend his/her license for a period of one year. There is no option of obtaining a restricted license.
- Consenting Underage First Offender (under 21) – An underage first-time offender will receive a one-year license suspension. Following 30 days, the driver may apply for a “critical need” license (note: only for a first-time offense when there are no other actions in place may an underage driver request a critical need restriction).
- Non-Consenting Underage First Offender (under 21) – The DMV will order a one-year license suspension if an underage driver refuses to submit to a blood or breath test. As there is no prospect for a critical need distinction in this event, the driver must forgo driving for the allotted one-year period.
- Consenting Adult Second Offender (over 21) – When a motorist has received a prior APS suspension or DUI conviction/probation within the last 10 years, the DMV will impose a one-year driving suspension. After 90 days the driver may petition for an Ignition Interlock Device (IID) restriction.
- Non-Consenting Adult Second Offender (over 21) – The DMV will direct a two-year revocation of the license of any second offender who refuses the proffered chemical test.
- Consenting Underage Second Offender (under 21) – When a driver who is under the age of 21 has previously received an APS suspension and/or court conviction, there is an automatic one-year license suspension with no option for a restricted driver’s license. In addition to the APS suspension, the DMV will impose a concurrent one-year suspension based on violation of any previously administered DUI probation.
- Non-Consenting Underage Second Offender (under 21) – A non-consenting underage second offender will receive a two-year license revocation without the option of a restricted license.
- Consenting Third-Time (or Greater) Offender – If a driver loses an APS hearing within 10 years of two or more previous APS suspensions or DUIs (or for those on DUI probation at the time of the new event), there is a two-year suspension attached with the opportunity for an IID restriction after 180 days.
- Non-Consenting Third-Time (or Greater) Offender – The DMV will revoke the driver’s license of a multi-offender for three years when he/she refuses a chemical test. There is no allotment for a restricted license in this circumstance, therefore the individual cannot drive for the entire three-year period.
Please note various other penalties may be administered by the DMV and these penalties are in addition to any ordered by a criminal court. Extraneous penalties could include completion of DUI school, filing proof of financial responsibility (Form SR-22) and payment of any application and/or re-issuance fees.
Requesting an APS hearing does not stay the order of suspension or revocation issued by the DMV. Therefore, it is vitally important that a driver appear at the scheduled hearing prepared with evidence, witnesses (if necessary) and the ability to rebut the DMV’s case. It is not required to have an attorney present, but if requesting an APS hearing, it is best to have a lawyer in attendance. A driver has the right to review the DMV’s evidence and cross-examine their witnesses, testify on their own behalf and introduce their own evidence and witnesses. This is a procedure well-known to experienced trial attorneys and being advised by a professional can make a world of difference when it comes to maintaining the ability to drive.
Furthermore, if a hearing officer renders a decision unfavorable to a driver, the driver has a right to request the DMV conduct an administrative review of the decision. A driver can even appeal the decision to Superior Court. However, requests for administrative review or to appeal in court must be petitioned within a certain amount of time depending on the type of hearing and as prescribed by the Vehicle Code. Consequently, it is best to be represented by an attorney knowledgeable in the Vehicle Code, DUI consequences and criminal defense law when facing a driver’s license revocation, suspension and/or an APS hearing.
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Seppi Esfandi is an Expert Criminal Defense Attorney who has over 20 years of practice defending a variety of criminal cases.