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

The term administrative per se (“admin per se” or “APS” for short) refers to the process by which the DMV suspends or revokes the driving privilege (license) of a person who:

1. is found to have driven with a .08 % BAC level or higher,
2. refuses a chemical test after a DUI arrest, OR
3. is a minor found to have driven with a .01% BAC or higher.

Admin per se hearings are proceedings at the DMV that take place after an arrest or citation for one of these offenses. 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 for driving while intoxicated, 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 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?

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 a proceeding that takes place at the DMV (California Department of Motor Vehicles) after a DUI arrest.

The arrest in question is for when a person drives with a blood-alcohol level of .08% or higher (which is above the legal limit). The APS 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:

1. operate a vehicle, and
2. 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 a per se DUI offense.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 suspension immediately goes into effect.³

2. How does a person get an APS 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 law enforcement officer seizes a person’s driver’s license after a DUI arrest. The officer also gives the driver a “Notice of Suspension,” which has a phone number on it.

• The arrested driver must call the driver safety office (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 an administrative hearing, the DMV issues a 30-day temporary driver’s license. There are situations when the DMV does not conduct a hearing within 30 calendar days. When this happens, the Department will grant a “Stay of Suspension” following the 30 days.⁴

A Stay of Suspension stops an administrative license suspension, and this temporary license remains in effect. The subject driver is granted unrestricted driving privileges until:

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

Example: On May 1, Heather is arrested by a police officer for first offense DUI for driving with a BAC of .08, as indicated by a preliminary alcohol screening and field sobriety tests. Upon arrest, the arresting officer takes her driver’s license, and she submits to a breath BAC test. Heather calls the Driver Safety Office two days later and schedules an admin per se hearing for June 1. The Department of Motor Vehicles 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.

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 at a DMV office.

The admin per se 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.

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

1. the person was driving, and
2. that his or her BAC exceeded the legal limit.

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

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

An APS 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 an order of suspension is set aside. If against, the officer orders a period of license suspension or revocation.⁵

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

The Department of Motor Vehicles can order a variety of penalties under administrative per se law.

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 APS suspension.

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

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

Note that the Department of Motor Vehicles will suspend a person’s license for one year if he/she refused a chemical test of his/her blood or breath.

Note that drivers need SR22 insurance in order to reinstate their license following an admin per se suspension.

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

This means California drivers can be punished twice for the same DUI charges. Once by the DMV through an administrative suspension period, and once by the criminal judge who  can impose

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

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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