“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 your driving privilege (license) if you:

1. are found to have driven with a .08 % BAC level or higher,
2. refused a chemical test after a DUI arrest, OR
3. are 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. 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.

All admin per se hearings are conducted at a DMV driver safety office. You are afforded an opportunity to challenge the Department’s case. If successful, the license suspension will be “set aside.”

If the DMV finds against you for driving while intoxicated, it can suspend your 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 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?

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.

Police arrest you for DUI if they suspect your blood-alcohol level is .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 to:

1. operate a vehicle, and
2. do so with a blood alcohol concentration of .08 or higher.¹

The DMV automatically suspends your driving privileges after your arrest for a per se DUI offense.²

An administrative per se hearing is when you challenge this suspension.

Note that you must request these hearings. If you do not, 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).”

At this point, the police officer has 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).

In the meantime, you must call the Driver Safety Office (DSO) – or fax in a request – to request and schedule an admin per se hearing. If you have already hired a DUI attorney, then the attorney will usually contact the DMV to schedule the 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 your license.

Once you request 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. You are 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.

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.

You may challenge the Department’s evidence against you. A license suspension will be set aside if you are 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. 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 refute and disprove 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 similarly to a California criminal trial. The DMV and you have the opportunity to present evidence and prove your respective cases. You can cross-examine witnesses and make objections.

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

Note that 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:

• the California Vehicle Code
• the California Evidence Code, and
• the California Administrative Code

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

After the evidence is presented, the hearing officer will deliberate. Ultimately, the officer will 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

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 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

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

Note that 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 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 you 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.

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.

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…

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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