“Admin Per Se” Law – APS Hearings to Show .08 BAC

An administrative per se hearing is where the DMV determines whether to suspend or revoke your driver’s license following a DUI. Here are five key things to know:

1. You are entitled to an admininstrative per se hearing (also called “admin per se” or “APS” for short) if you were arrested or cited for driving with a .08 % BAC level or higher, refusing a chemical test after a DUI arrest, or being a minor and driving with a .01% BAC or higher.
2. You must request this hearing within 10 days of your arrest. If not made within this time period, the DMV immediately suspends your driving privileges.
3. If the DMV finds against you for driving while intoxicated, it can suspend your license for up to four months (for a first-time DUI conviction) or up to one year (for a second or subsequent DUI conviction). Note that these penalties are in addition to any DUI penalties ordered by a criminal court.
4. If you win the APS hearing, the license suspension will be “set aside.”
5. All admin per se hearings are conducted at a DMV driver safety office. You criminal defense attorney can represent you.

Our California DUI defense attorneys will highlight the following in this article:

• 1. What is an admin per se DMV hearing?
• 2. How do I get an APS hearing?
• 3. What happens at the hearing?
• 4. What penalties can be imposed under administrative per se law?
• 5. Are these the same penalties imposed by a criminal court?
• 6. Can I appeal?

DMV admin per se hearings give motorists accused of drunk driving the chance to challenge this suspension.

1. What is an admin per se DMV hearing?

An admin per se hearing is where you challenge the California Department of Motor Vehicles’ suspension of your driver’s license following a DUI arrest.¹ These hearings take place at the DMV driver safety office.²

1.1. What happens if I do not request an APS hearing?

If you do not request an APS hearing within 10 days of the arrest, then the DMV suspension immediately goes into effect.³

2. How do I get an APS hearing?

After you get arrested for DUI, the law enforcement officer will seize your driver’s license (unless you live outside of California). The officer also gives you a “Notice of Suspension and Temporary Driver License (Form DS-367).”

Within 10 days, you or your attorney must call the Driver Safety Office (DSO) – or fax in a request – to request and schedule an admin per se hearing. If a request is not made before this deadline, the DMV automatically suspends your license.

2.1. What happens after I request a hearing?

Once you request an administrative hearing, the DMV issues a 30-day temporary driver’s license. If the hearing does not occur within those 30 days, the Department will grant a “Stay of Suspension” where your temporary license remains in effect until:

• the hearing is conducted, and
• the DMV makes a suspension decision.⁴

2.2. What do the police do with my license?

After the police seize your license following a DUI arrest, they have five business days to write up a report and send it – along with your license – to the DMV headquarters (located in Sacramento). Headquarters will then

• destroy your license, and
• modify your driving record to show that you have a pending administrative case.

The DMV will then send the police report (as well as any other relevant papers) to the closest DSO (Driver Safety Office) to the location of your arrest. Then your case gets assigned to a DMV hearing officer, who will conduct an initial review. The hearing officer will either:

• determine that the officer had insufficient cause to arrest you and issue a “notice to set aside”, ending the administrative case and reinstating your driving privileges;
• ask the officer for more information; or
• decide that the officer was correct in presuming you were DUI (this is what happens in most cases).

DMVs throughout the United States suspend or revoke driver’s licenses for alcohol-related DUI.

3. What happens at the hearing?

All administrative per se hearings are conducted before a DMV hearing officer. This is a DMV employee and is not:

• a judge, or
• an attorney.

The initial burden of proof at the DMV hearing is with the DMV to show that the officer had reasonable cause to believe

1. you were driving, and
2. your BAC exceeded the legal limit.

If the hearing officer finds this to be the case, you will have an opportunity to challenge, refute and disprove the Department’s evidence.

3.1. What evidence will the hearing officer consider?

Typical evidence includes the police report and the breath test, urine test, or blood test results. Note that the BAC limit is lower for

• commercial drivers of commercial vehicles,
• people on DUI probation, and
• underage drivers (California has a zero-tolerance policy for under-21 drivers for driving under the influence of alcohol).

You can also introduce any other relevant evidence, such as dashcam footage, eyewitness accounts, and GPS records.

The hearing officer will not care that losing your license could cause you to lose your job, so it is pointless to mention it.

3.2. What happens after the APS hearing?

After the evidence is presented, the hearing officer will deliberate and issue a “Notice of Findings and Decisions“.

If the officer finds in your favor, then an order of suspension is set aside. If the officer finds against you, they will order a period of license suspension or revocation.⁵

3.3. Can an attorney represent me?

Yes, you have the right to be represented by an attorney at these hearings. Having an attorney increases your odds of presenting a winnable case because they will have knowledge of how to use California’s:

• Vehicle Code
• Evidence Code, and
• Administrative Code.

An attorney can also call upon accident reconstruction experts and forensic alcohol experts to testify in your favor.

4. What penalties can be imposed under administrative per se law?

For a first per se DUI crime, the DMV can suspend your driver’s license for four months. You can apply for a restricted license after the first 30 days of APS suspension.

For a second per se DUI, the DMV can order a one-year / 365-day suspension of your driver’s license. However, the California DMV usually allows you to:

• continue driving anywhere during your license suspension, if
• you agree to install an ignition interlock device (IID) in your cars.⁶

4.1. What if I refused the evidentiary breath or blood test?

The Department of Motor Vehicles will suspend your license for one year if you refused a chemical test of your blood or breath.

4.2. Do I need SR22 insurance?

You need SR22 insurance in order to reinstate your license following an admin per se suspension.

5. Are these the same penalties imposed by a criminal court?

The license suspension penalty issued at an administrative per se hearing is separate from any penalties ordered by a criminal court case, which include:

• fines,
• possibly jail, and
• other sentencing terms.

Note that criminal cases are actually easier for you to win than APS hearings. This is because in criminal cases, the state has the burden to prove you guilty beyond a reasonable doubt. Under the APS statute, you are essentially presumed guilty once the state shows they had reasonable cause to believe you were driving under the influence.

Please see our article on the difference between the DMV administrative suspension and the court suspension.

6. Can I appeal?

If you lose your DMV hearing, you have 15 days from the “Order of Suspension” to file a “Request for Administrative Review.” The DMV’s legal department will then review your case and determine whether to uphold or overturn your license suspension.

Alternatively, you can file a “Writ of Mandate” with the local Superior Court. Though this is usually reserved for situations where you believe the DMV violated the law in rendering its decision.⁷

For additional help…

Contact our criminal defense lawyers for additional help.

For legal advice or to discuss administrative per se law with a criminal defense attorney, we invite you to contact us at Shouse Law Group. Our law firm serves clients throughout the state, including Los Angeles, Orange County, San Diego, the Inland Empire and the San Francisco Bay Area.

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