In 1990, the California State Legislature joined 28 other states to enact a series of laws designed to immediately punish drivers accused of drunk driving, independent of any action taken by a court. Although many states resisted the implementation of these invasive laws, the Federal Government stepped in and threatened to withhold Federal Highway Funds for noncompliance. Not willing to lose millions of dollars in Federal money, all states eventually joined and the Administrative Per Se laws became the law of the land.
Under California’s mandatory Administrative Per Se laws, any driver who is thought to have been driving a motor vehicle with a Blood/Alcohol Concentration of .08% or greater is “presumed” to be under the influence and the immediate suspension of that person’s driver license is mandated. The suspension of the driver license is not discretionary, unless reversed at a special administrative hearing, the suspension of a person’s driver license is mandatory.
The implementation of a driver license suspension begins with a person’s arrest for the mere suspicion of driving with an alcohol level that exceeds the legal limit. Even if the actual Blood/Alcohol concentration is not immediately known, (as in the case of a blood test) the law calls for the immediate suspension of the driver license based upon a law enforcement officer’s observations alone. That’s right…. If police officer simply “thinks” your alcohol level is at .08% or greater, your license to drive must be suspended.
Fortunately, the courts in our country have repeatedly ruled that once a driver license is obtained, it becomes a vested “property right” and therefore an accused driver must be provided Due Process in an attempt to reverse the suspension of their driver license.
The Administrative Hearing process that permits a driver to fight the suspension of their driver license is known at an Administrative Per Se (APS) Hearing. Commonly referred to as a DUI Hearing, the APS hearing is a complicated and often frustrating area of law. Properly run, an APS Hearing is much like a “mini trial.” Exhibits are introduced and there a legal arguments regarding the admissibility of evidence. Witnesses and experts may testify and police officers may be called upon to establish probable cause for the arrest. A properly conducted hearing requires knowledge of DMV procedure, the Vehicle Code, the Evidence Code, the California Code of Civil Procedure and the Administrative Procedures Act.
The Administrative Per Se laws were written in such a fashion as to presume that the driver is guilty. Even though our courts are predicated upon the belief that a person is presumed innocent until proven guilty, the DMV works in the exact opposite. With the DMV, the driver is presumed guilty and is challenged to demonstrate why the presumption is wrong.
In order to be granted an APS Hearing, the accused driver must contact their local Driver Safety Office within the first 10 calendar days following the arrest. If a driver fails to make contact within that time, the right to a hearing is waived and the suspension of the driver license automatically goes into effect 30 days after the arrest.
Winning an APS Hearing can be challenging but one should not allow the DMV to suspend their driving privilege without a fight. Suspension of the driving privilege is just one element of an Administrative Per Se case. Such a suspension can also result in an increase in insurance rates for years and the requirement to attend a DUI school. APS Hearings can be won provided a driver either works to prepare themselves or is represented by a DMV defense expert.
If the DMV has initiated a suspension/revocation action against your driving privilege for a DUI arrest, the first logical question is whether you intend to simply endure the suspension/revocation action and then work toward getting your license reinstated; or do you choose to fight the DMV action and attempt to prevent the suspension/revocation.
If you choose to contest the intended suspension of your driving privilege, you must contact the Driver Safety Office closest to your home and schedule an Administrative Per Se hearing. It will also be critically important to request a Stay of Suspension because it is quite likely the DMV will not be able to schedule a hearing prior to the effective date of the suspension. At that point, the accused driver will request the DMV provide them with all Discovery (evidence) in the case so preparation can begin.
California law makes it abundantly clear that all drivers are permitted to represent themselves at an APS Hearing. There is no requirement, whatsoever, that a driver be represented. That being said, however, the Administrative Per Se Hearings conducted by the Department of Motor Vehicles are among the most complex and challenging of all administrative hearings. If not properly prepared and presented, a driver’s own evidence may be rejected by the DMV for not being timely or not being relevant. This is just one of the many obstacles a driver may encounter if representing themselves. There is nothing easy or user-friendly about an APS Hearing.
California law does permit a driver to be represented by “any person of their choosing.” If you are challenging the DMV’s intended suspension of your driving privilege, you may consider engaging the services of an Administrative Advocate. Administrative Advocates are DMV Defense Experts with specific levels of training and experience who represent drivers before the California DMV. While the law does not require that any driver be represented at an APS Hearing, having the assistance of an Administrative Advocate greatly increases a driver’s likelihood of prevailing at such a hearing.
The Administrative Per Se Hearing is among the most challenging and complex hearings conducted by the Department of Motor Vehicles. Additionally, an accused driver can look forward to little or no assistance from the DMV to understand the process. Because of this, and because the DMV is permitted to presume that a driver is guilty, the Administrative Per Se hearing may seem impossible to win. This is just simply not the case. With proper preparation and execution, an Admin Per Se Hearing can be won and a therefore a driver license suspension can be avoided.
If you elect to defend yourself at an Administrative Per Se Hearing, remember you must act within the first ten days to request your hearing. If you would like representation by a DMV Defense Expert, DMV Administrative Advocates can assist you in preparing your defense and provides a greater likelihood of victory. You can learn more and study a complete overview of the Administrative Per Se hearing procedure here.