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DMV Hearings & DUI (APS)

When a driver is arrested or cited for driving under the influence of alcohol (DUI) the driver’s driving license is usually confiscated and the driver is issued a pink-colored temporary license from the arresting or citing officer. This temporary license informs the driver that he or she only has ten days from the date of DUI arrest or citation to request a hearing at the Department of Motor Vehicles (DMV) where the driver's privilege to retain his or her driving license will be decided. The temporary license is only valid for thirty days and should be carried by the driver whenever he or she drives.

Note: The driver’s temporary license may be extended beyond thirty days in some cases where the driver has timely requested a DMV hearing but when the hearing itself is scheduled beyond thirty days from the date of DUI arrest or citation.

APS Hearing: If the driver contacts the DMV within the ten day requirement (may be longer for accident with injury DUIs) the DMV will set a hearing for the driver where the driver’s privilege to continue driving will be determined. This hearing is called the Administrative Per Se hearing, or Admin Per Se (APS).

The APS hearing may be held by telephone or in-person and the driver has the right to have the evidence that will used against him delivered to him in advance of the hearing so that driver may prepare for his defense.

Note: The APS hearing concerns alcohol related DUI cases only; the DMV does not set hearings for DUI related offenses that involve drugs only. After a DUI conviction in the criminal court the DMV may suspend or revoke the driver's license whether the DUI conviction is for alcohol or drugs, or a combination of alcohol and drugs, but the DMV’s APS hearing is for alcohol related DUIs only.

At the APS hearing the DMV hearing officer will attempt to prove that the driver was driving a motor vehicle with a blood alcohol concentration (BAC) level of 0.08% or more. (For commercial drivers the level is 0.04% BAC and for drivers who are on DUI or for drivers who are under the age of 21, the level is 0.01% BAC (also known as zero tolerance).

Evidence: The evidence that the DMV hearing board officer uses to prove its case against the driver (also called the Respondent) is usually the police report, including the facts in the police report as relayed by the police officers, and the printout of any chemical examination such as a blood or breath test. Other evidence may be used against the Respondent, such as witnesses to the driver's driving, any dash-cam video, and the Respondent's DMV record, but for the most part, most APS hearing officers rely on the police report and chemical analysis of BAC, without more, to prove the DMV's case.

Burden of Proof: The DMV has the burden of proving the driver was DUI. The burden of proof that must be overcome is a standard known as the preponderance of evidence standard. This means that the DMV must prove that it is more likely than not the driver was DUI with a BAC of at least 0.08% (non-commercial, non-underage driver).

Defense: At the DMV hearing the driver (Respondent) will be allowed to present evidence on his own behalf, almost always through DUI attorney, which negates the DMV's evidence that shows. For the most part, the DUI defense attorney attempts to show that the defendant was not driving a vehicle, the driver was not driving with a 0.08% or more BAC, or that the defendant was arrested without Probable Cause. A DUI attorney who is familiar with the rules of evidence and procedure will look to dozens of possible defenses at APS hearings for DUI, including improper police procedure, inadequate scientific analysis, improper administration of scientific equipment (blood or breath test), or present witnesses who have contrary evidence to the DMV's evidence.

If the DMV hearing board officer proves that the driver was DUI with at least a 0.08% BAC then the DMV will suspend or revoke the driver's license. In addition, if the hearing board officer proves that the driver refused the citing or arresting officer's request to take a chemical test (blood or breath) then the DMV will suspend or revoke the driver's license. The length of suspension or revocation of license depends on the driver's history for DUI and other factors such as how many points the driver already has on his or her driving record, whether or not the driver refused a blood or breathalyzer test, and whether or not the driver is willing to install an interlock ignition device (IID) in his or her vehicle. Finally, if the driver does not win the APS hearing, the driver will be made to take DUI classes and carry special SR-22 insurance before the driver's license is reinstated. Other conditions may apply, such as the condition that the driver install an interlock ignition device (IID) in his or her vehicle.

Note: An IID is a device that will not allow the driver’s vehicle to start unless the driver blows into a device that is connected to the ignition and the driver’s breath registers no alcohol. The driver must periodically blow into the device while the vehicle is in operation.

Appeal: If the driver loses the APS hearing he may appeal the DMV's decision within fifteen days of the receipt of the DMV's decision. A DUI attorney familiar with DMV appeals should be used as this area of law can be complex.

To learn more about the DMV’s APS hearings concerning DUI arrest or citations, contact our DUI criminal defense attorneys today. There is no charge for an in-office consultation. Call today!


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