3/12/20 UPDATE: Due to COVID-19, all DMV hearings will be done over the telephone. People who prefer in-person hearings may request them, but they will be delayed indefinitely.
Admin per se hearings are proceedings at the DMV that take place after a DUI arrest. In California, the DMV automatically suspends the license of a driver who's been arrested for DUI with a BAC of .08% or higher. These DMV hearings give drivers the chance to challenge the suspension.
A motorist must request this hearing within 10 days of his/her arrest. If not made within this time period, the DMV immediately suspends the person's driving privileges.
All admin per se hearings are conducted at a DMV driver safety office. A driver is afforded an opportunity to challenge the Department's case. If successful, the license suspension will be "set aside."
If the DMV finds against the driver, it can suspend the person's license for:
- up to four months (if a first-time DUI conviction), or
- up to one year (if a second or subsequent DUI conviction).
Note that these penalties are in addition to any DUI penalties ordered by a criminal court.
Our California DUI defense attorneys will highlight the following in this article:
- 1. What is an admin per se DMV hearing?
- 2. How does a person get a hearing?
- 3. What happens at the hearing?
- 4. What penalties can the DMV impose?
- 5. Are these the same penalties imposed by a criminal court?
1. What is an admin per se DMV hearing?
An admin per se hearing is a proceeding that takes place at the DMV after a DUI arrest.
The arrest in question is for when a person drives with a BAC of .08% or higher. The hearing gets its name from California's “per se” DUI law found in Vehicle Code 23152b VC. This law makes it a crime for a person to:
- operate a vehicle, and
- do so with a blood alcohol concentration of .08 or higher.1
The DMV automatically suspends a person's driving privileges after an arrest for per se DUI.2
An administrative per se hearing is when a driver challenges this suspension.
Note that drivers must request these hearings. If they do not, then the DMV's suspension immediately goes into effect.3
2. How does a person get a hearing?
Following an arrest for per se DUI, a person must request an admin per se hearing.
This request must come within the first 10 days of the arrest. If a request is not made before this deadline, the DMV automatically suspends the person's license.
The police seize a person's driver's license after a DUI arrest. An officer also gives the driver a “Notice of Suspension,” which has a phone number on it. The arrested driver must call this number (or fax in a request) to schedule an admin per se hearing. If the driver has already hired a DUI attorney, then the attorney will usually contact the DMV to schedule the hearing.
The other option is for the driver to contact the Driver Safety Office. There are several of these in California and the arrestee contacts the office for the area where the arrest occurred.
Once a driver requests a hearing, the DMV issues a 30-day temporary driver's license. There are situations when the DMV does not conduct a hearing within 30 days. When this happens, the Department will grant a “Stay of Suspension.”4
A Stay of Suspension stops a license suspension. The subject driver is granted unrestricted driving privileges until:
- a hearing is conducted, and
- the DMV makes a suspension decision.
Example: Heather is arrested for driving with a BAC of .08 on May 1. Upon arrest, the police take her driver's license. Heather calls the Driver Safety Office two days later and schedules an admin per se hearing for June 1. The DMV contacts Heather on May 28 and says it has to re-schedule her hearing until June 18.
Here, due to the re-scheduling, the DMV issues Heather a Stay of Suspension. She then has unrestricted driving privileges until the new hearing date – June 18.
3. What happens at the hearing?
All administrative per se hearings are conducted at a DMV office.
The hearings are held before a DMV hearing officer. This is a DMV employee and is not:
- a judge, or
- an attorney.
A driver may challenge the Department's evidence against him or her. A license suspension will be set aside if the driver is successful.
Note that unlike a criminal case, a person is presumed to have driven with an excessive BAC in an admin per se hearing. It is up to the driver to prove to the DMV that its evidence is wrong.
A hearing runs similar to a California criminal trial. The DMV and the driver have the opportunity to present evidence and prove their respective cases. Note that a driver has the right to be represented by an attorney at these hearings.
After the evidence is presented, the hearing officer rules for or against the driver. If for, then a suspension is set aside. If against, the officer orders a period of license suspension or revocation.
4. What penalties can the DMV impose?
The DMV can order a variety of penalties at an administrative per se hearing.
For a first per se DUI crime, the Department can suspend a driver's license for four months. A driver can apply for a “restricted” license after the first 30-days of suspension.
For a second per se DUI, the DMV can order a one-year license suspension. However, the California DMV usually allows defendants to:
- continue driving anywhere during their license suspension, if
- they agree to install an ignition interlock device in their cars.5
Note that the DMV will suspend a person's license for one year if he/she refused a chemical test of his/her blood or breath.
5. Are these the same penalties imposed by a criminal court?
The penalties issued at an administrative per se hearing are separate from any penalties ordered by a criminal court.
This means a driver can be punished twice for the same DUI.
For additional help...
For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group.
California Vehicle Code 23152b VC.
License suspensions required for VC 23152b DUI cases are regulated by California Vehicle code sections 13350 VC et seq.