Empowering California Drivers

To Maintain Their Driving Privilege

What is the Procedure Followed in an Administrative Per Se Hearing?

The California State Legislature and more specifically, the California Vehicle Code is responsible for defining and enacting the laws that govern the safe operation of motor vehicles within the State of California.  The California Department of Motor Vehicles (DMV) is then empowered to interpret and enforce those laws.

One of the “hot-button” issues that constantly falls under the DMV’s scrutiny is drivers who operate motor vehicles while Under the Influence of Alcohol.

In an effort to combat the incomprehensible misery often associated with drunk driving, the California State Legislature adopted a series of laws designed to immediately punish drivers who operate motor vehicles with a blood/alcohol concentration which exceeds a specified level allowed by law.  In 1990, and while under tremendous pressure from the Federal Government, California enacted its Administrative Per Se Laws.  Known as APS laws, these statues determine that if any person is believed to have operated a motor vehicle with a blood/alcohol concentration of 0.08% or greater, they are per se presumed in violation of the law and must be punished.  So, despite the fact that every courthouse in the country will presume that an accused person is innocent until proven guilty, the Administrative Per Se Law presumes a person’s guilt and challenges that driver to prove their innocence.

The APS laws call for the immediate suspension of a person’s driving privilege upon an arrest for operating a motor vehicle with blood alcohol concentration of 0.08% or greater.  [For commercial drivers who are operating a commercial vehicle; or drivers transporting passengers for hire at the time of arrest, the Admin Per Se Laws will trigger at a blood/alcohol concentration (BAC) of .04% or greater.  For those drivers who are under the age of 21 or who are on DUI probation, the automatic suspension of the driver license will trigger at 0.01% or greater].

The method for defending one’s driving privilege is to conduct an administrative hearing before the California DMV.  Known as an Administrative Per Se Hearing (APS Hearing), the department will presume the honesty and accuracy of all statements and evidence contained in the police reports and will challenge the driver to prove their innocence.  While the law specifically permits the accused driver to defend themselves at an APS Hearing, few California drivers possess the training or skill necessary to prevail at such a hearing.  The law does permit accused drivers to be represented by specially trained and experienced DMV Defense Experts known as Administrative Advocates.

In this chapter, we discuss the most common sequence of events occurring when a driver is arrested for DUI and the procedure followed in scheduling and then defending yourself at an APS Hearing.

Arrest/Detention:

All Administrative Per Se (APS) suspensions begin with a driver being lawfully arrested or detained by a law enforcement officer.  A driver may come into contact with a law enforcement officer in a variety of instances:

  • During an enforcement stop at the side of the road.
  • During the investigation at the scene of a traffic accident.
  • While being treated at a hospital following a driving event.
  • During a contact at a person’s home following a report of erratic driving.

The key to triggering an APS suspension is that the accused must have driven a motor vehicle and they must be lawfully detained or arrested; however, the law does not require the actual “physical” act of an arrest for the detention to be lawful.  For example, if a law enforcement officer locates a driver at a hospital following a traffic accident and determines that person was intoxicated at the time of driving, the driver may be taken into “custody” without physically placing them into handcuffs.

The legal measure here is whether or not the driver was lawfully detained or arrested and whether or not there is reasonable cause to believe that the driver’s BAC was at or above the legal limit at the time of driving.

Order of Suspension & Temporary Driver License:

At the time of arrest or detention, the law enforcement officer will act as an agent for the Department of Motor Vehicles and will seize the accused person’s driver license if it is in possession.  Whether the actual driver license is seized or not, the law requires that the accused driver be advised that the DMV has automatically “suspended” the driver license immediately based upon the mere belief that they drove a motor vehicle with an alcohol level exceeding the legal limit.

The method for alerting the driver that their license has been suspended pursuant to the Administrative Per Se Law is through a notice issued by the arresting law enforcement officer.  The officer must personally serve the driver with a form authorized by the DMV.  The DMV Form DS-367 is a “pink colored” sheet of paper that is entitled “Age 21 and Older – Admin Per Se – Suspension/Revocation Order and Temporary Driver License.”

This form contains a great deal of legal language that can be contradictory and confusing for many drivers.  Essentially, the form advises the driver that their driving privilege has been immediately suspended because a law enforcement officer believes they were operating a motor vehicle with a blood/alcohol concentration exceeding the legal limit.  The form goes on to explain that (provided the original driver license was valid) the form acts as a “temporary driver” license permitting the person to legally drive for 30 days.

Most importantly, the “Order of Suspension and Temporary Driver License” also tells the accused driver that if they wish to defend their driving privilege, they must make contact with the DMV within “ten days” to schedule an APS Hearing.

The form does not clearly explain that contact must be made with the Driver Safety Office (DSO) located nearest to their home.  Furthermore the form does not make clear that contact must be made with the DSO within ten actual/calendar days….. not business days.

Failure to contact the appropriate Driver Safety Office within the first ten calendar days is considered a waiver of a person’s right to a hearing and the automatic suspension of the driving privilege will go into effect on the 31st day following the arrest or detention.

Scheduling an Administrative Per Se Hearing

In all honesty, the DMV usually first learns that a driver is in trouble when that person calls to request an Admin Per Se Hearing.  Although Law Enforcement Officers are required to file their arrest reports with the department in a timely manner, this often occurs after the driver has already asked for a hearing.

In a perfect world, an accused driver would simply pick up a telephone and call their local Driver Safety Office and request that a hearing be scheduled.  In fact, in some instances, it is just that simple.  We have heard many stories however, of drivers calling their local Driver Safety Office and being confronted by a DMV employee who is misleading, dishonest and unhelpful. We have numerous reports of drivers who are convinced to withdraw their request for an Admin Per Se Hearing because an abusive DMV employee convinces them that an Admin Per Se hearing cannot be won and that scheduling a hearing is a waste of everyone’s time.  This couldn’t be further from the truth.

If a driver elects to contact the Driver Safety Office on their own to schedule a hearing, they should be prepared to provide the following information:

  • Full Name
  • Date of Birth
  • Driver License Number
  • Address
  • Contact telephone number
  • Date of Arrest
  • Location of Arrest
  • Name of Arresting Officer and his ID Number
  • Law Enforcement Agency
  • Case or Citation Number
  • Type of Chemical Test provided

The driver should also be prepared to make a decision as to whether or not they want to conduct their hearing “in-person” or “telephonically.”  Many drivers are not aware that during the process of scheduling a hearing, they should also request a “Stay of Suspension.”  This stops the automatic suspension from going into effect 30 days after arrest and places it into hold until the outcome of the hearing.  Finally, the accused driver will often not understand that this is also the time to request that the DMV provide “Discovery” in the case.  Discovery is any evidence the DMV intends to present in support of suspending the license.

As a precaution, the accused driver should ensure to document the date and time of the call, as well as the name of the DMV employee they spoke with.

Scheduling an APS Hearing can be tricky and things can begin going wrong from the very beginning.  If the accused driver has engaged the services of a DMV Defense Expert to represent them at the hearing, that Representative should be making the initial contact with the DMV.

Prepare for Administrative Per Se Hearing

Once the Administrative Per Se Hearing has been scheduled, the driver must begin the process of preparing to conduct the hearing.  It cannot be overstated that proper preparation for the APS Hearing is critical to winning the proceeding.

An accused driver must receive and evaluate the DMV’s Discovery.  Decisions must be made about the accuracy and admissibility of the department’s evidence.  Does it comply with the Evidence Code, is it conclusionary, and what steps can the driver take to keep the evidence from coming into the hearing.  The driver may have to be prepared to evaluate the efficacy of scientific evidence and to prepare to cross-examine law enforcement officers or witnesses.

The driver must also make decisions about issuing subpoenas for the production of additional items of evidence or witnesses.  Certain sections of law require the driver to provide copies of their own evidence to the DMV prior to the hearing.  The driver must also give great thought to the possibility of testifying at the hearing.  Finally, the driver must conduct legal research and prepare their closing argument.

Conducting an Administrative Per Se Hearing

As stated elsewhere in this chapter, the Administrative Per Se Hearing is among the most complicated and potentially frustrating of all the administrative hearings conducted by the California DMV.  A proper APS hearing is run much like a mini-trial.  Exhibits are introduced and then there are legal arguments waged over its admissibility.  Witnesses may be qualified and testify.

During the APS Hearing, the DMV normally has the burden of establishing three elements of the case:

  • Was the driver lawfully contacted and did the arresting officer have reasonable cause to believe the person was driving in violation of the Vehicle Code?
  • Was the driver lawfully detained or arrested?
  • Was the driver operating a motor vehicle with a Blood/Alcohol Concentration which exceeds the legal limit?

Remember, the DMV is permitted to automatically presume the accuracy and honesty of all its evidence and statements and therefore, these three elements are extremely easy for the department to establish unless the driver is prepared to aggressively attack the case.

The person presiding over the APS Hearing is a DMV Hearing Officer.  This person is the DMV’s equivalent of a Superior Court Judge.  In fact, the DMV Hearing Officer is the judge, jury and executioner.  The system is so crazy and presumptive that the hearing officer will make and rule on their own objections.  Additionally, the hearing officer is not there to assist the driver.  He or she is there to sustain the suspension of the driver license.

The DMV process is so slanted and unfair that even if the driver does successfully rebut the case against themselves, the DMV will often grant itself a continuance to find some way around the argument.  This is wholly unfair but can be difficult for a driver to prevent on their own.  Remember the law does permit drivers to be represented by DMV Defense Experts who vastly increase the chances of victory.

Concluding an Administrative Per Se Hearing

When an APS Hearing concludes, it is extremely rare for a hearing officer to announce their final decision at that point.  In almost every instance, the hearing officer will announce their intention to review the evidence and testimony and to render a decision in writing in a few weeks.    In almost every instance, an accused driver will go out the door having no clue how well or how poorly the hearing went.  This is normal.

The Hearing Officer is required to present their final decision in a written format.  Known as a  “Notice of Findings and Decision” the final order arrives in the mail and will identify whether the driver won or lost their hearing.  The notice must also address the hearing officer’s findings in each of the three areas of concern.

If the hearing was lost, the Notice will explain that the suspension/revocation is to be re-imposed and will state the term of suspension/revocation.   The order will also explain the driver’s right to appeal the decision.

What are the Penalties for Losing an Administrative Per Se Hearing

There is no easy answer to this question as the penalties imposed by the DMV are affected by a number of factors.  Is this a first offense?  Was anyone hurt in an accident?  Did the driver refuse a chemical test?  Was the driver on DUI probation?  Did the arrest occur in an IID pilot county?

The most common penalties associated with losing an APS Hearing are:

  • Suspension or Revocation of the driving privilege for specified periods of time.
  • Disqualification of commercial drivers to operate commercial vehicles.
  • Attendance and completion of DUI schools.
  • Installation of IID breath devices in cars.
  • Filing of SR-22 Insurance Forms.
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