When a driver is arrested for driving under the influence of alcohol or drug, or both (DUI), he may be entitled to an administrative hearing at the Department of Motor Vehicles (DMV) to determine whether or not his driving privileges should be suspended or revoked because of the DUI arrest.
The DMV hearing for DUI arrest is called an administrative per se (APS) hearing, or “admin per se” hearing, for short.
Note: The DMV APS hearing is a separate hearing from any criminal court hearing that may be related to the driver’s DUI arrest.
APS Hearing v. Criminal Court
The DMV APS hearing is held to determine whether a driver’s license should be suspended, revoked or restricted after a DUI arrest. The DMV is not involved with punishment for the driver.
Also, the DMV Admin per se hearing will only determine whether the driver was driving under the influence of alcohol over the legal limit. In other words, if the driver is accused of driving under the influence of drugs, or if he accused of driving under the influence of alcohol below the legal limit, then the DMV will take no action against the driver.
On the other hand, at the criminal court, if the defendant is found to be under the influence of alcohol, or drug, while driving, then he may be convicted of DUI. This is true even if the driver's blood alcohol concentration (BAC) is below the legal limit. (VC 23152(a) [DUI with BAC below the legal limit] & VC 23152(f) [DUI Drugs]).
Note: The legal limit is different for different types of drivers. For commercial drivers, the legal limit is 0.04% BAC. For most other drivers (and boaters), the legal limit is 0.08% BAC. For more information, see Admin Per Se Hearing, DUI Commercial Drivers, & Boating Under the Influence.
Criminal Court: The criminal court is concerned with punishment and rehabilitation. The criminal court does not directly suspend, revoke, or restrict the defendant’s driver’s license, but the criminal court can, and will, make the defendant attend DUI classes as a condition of probation after a DUI conviction. Also, the DMV may revoke or suspend a driver’s driving license after a DUI conviction even if the DMV did not already restrict the driver’s license after the DMV APS hearing.
Example: David is arrested for misdemeanor DUI. He is arrested and cited with a violation of VC 23152(a) and VC 23152(b). David timely schedules his admin per se hearing. At the DMV hearing, David prevails, and the DMV does not take any action against his driver’s license. However, at the criminal court, David is convicted of VC 23152(a) [DUI with a BAC below the legal limit]. Thereafter, the DMV restricts David’s driver’s license because of the criminal conviction.
Burden of Proof: The burden of proof at the DMV hearing for DUI arrests is ‘preponderance of the evidence,’ which simply means ‘more likely than not’ the driver was driving under the influence of alcohol. The burden of proof to sustain a conviction at the criminal court is ‘beyond a reasonable doubt’ for DUI charges. Proof beyond a reasonable doubt is a very high burden the district attorney must overcome before the defendant may be found guilty in criminal court.
In other words, is much easier for the judge at the DMV hearing to suspend the driver’s license after a DUI arrest than it is for the district attorney to prove guilt that the driver was DUI. For more information on the burden of proof differences in DUI cases, see Admin Per Se Hearings.
Judge v. Jury: The DMV hearing officer is the judge and the jury in an admin per se hearing. The defendant in a criminal DUI case (at criminal court) has a right to a jury trial where an independent jury decides whether or not the defendant is guilty of DUI.
Interpreter Issues: The DMV will provide an interpreter for the driver at the APS hearing so long as the driver requests the interpreter with advance notice. This advance-time requirement is especially strict for harder-to-come-by interpreters, such as non-Spanish speaking interpreters (i.e., Arabic, Mandarin, French, Italian, etc.).
Also, the driver (Respondent) may provide his own interpreter at the APS hearing, but it is crucial that the driver bring a certified interpreter with credentials, as opposed to a non-certified interpreter who happens to be a friend or family member of the driver.
Why Have an APS Hearing
The APS hearing is the hearing where the DMV must prove that the driver was driving under the influence of alcohol and above the legal limit. If the DMV proves this, the DMV may revoke, restrict, or suspend the driver’s driving privilege (license).
The APS hearing will occur regardless of whether or not the driver requests his DMV APS hearing. However, if the driver timely requests his hearing (usually required within 10 days of the driver’s DUI arrest), then the driver may attend the APS hearing and introduce evidence in his defense.
Note: If notice of the DMV APS hearing is mailed to the driver, as opposed to being served upon him at the time of DUI arrest, then he has 14 days to schedule his APS hearing. This happens when the driver is suspected of DUI, but he was not arrested or cited for some reason (i.e., medical treatment before arrest, hit and run DUI, etc.).
APS Hearing Rights: At the DMV APS hearing, the driver has the right to be represent by an attorney, the right to examine and cross examine witnesses, the right to subpoena witnesses in his defense, the right to testify or not testify at the hearing, and a right to appeal the DMV decision if the DMV acts against the driver’s driving license.
Note: The driver (Respondent) does not have a right to a free attorney at the APS hearing. This is true even if the driver cannot afford an attorney. Therefore, all attorneys who represent drivers at the DMV APS hearing are private attorneys, usually private DUI attorneys. However, some of these private attorneys may work pro bono (without cost) for various reasons.
Discovery Request: "Discovery" is fancy word for evidence in legal lingo. The discovery request is made at the time of scheduling the APS hearing. The discovery will usually include a police report and perhaps a medical report (blood, breath, or urine analysis). If the driver does not timely schedule the DMV APS hearing, he loses the right to examine the DMV’s evidence before the hearing.
The discover will usually include a "DS-367" form, which is completed by the arresting officer. This DS-367 form has a lot of information related to the circumstances of the driver's arrest (i.e., probable cause statement, breathalyzer results, preliminary alcohol screening (PAS) device results, time of arrest and physical surroundings, and more.
The discovery will sometimes include a police report which includes the defendant's statements, if any, the reason for the defendant's stop, the results of any field sobriety tests (FSTs), the evidence collected (beer bottles, drugs, etc.), and more.
Evidence Presented at APS Hearing
The driver (Respondent) has a right to present evidence on his behalf at the DMV admin per se hearing after a DUI arrest or citation. This evidence will usually include scientific evidence, witness testimony, medical reports, photographs, collision reports, or other relevant evidence.
If the driver wants his witness to attend the APS hearing, then those witnesses may attend voluntarily, but usually, those witnesses should be subpoenaed by an attorney.
Note: The most common arguments raised by driver’s at the DMV APS hearing include officer had no probable cause to seize the driver (stop the driver) [4th Amendment Issues]; officer did not properly Mirandize driver or operate with a valid warrant before a blood draw [5th Amendment Issues]; officer failed to comply with Title 17 or the Code of Regulations in DUI arrest procedures, officer’s DUI analysis equipment is faulty or not calibrated correctly; driver’s witnesses refute officer’s statements; BAC is inaccurately measured; driver is not the person who drove vehicle (witness testimony), and more.
DMV's Evidence Burden
The DMV hearing officer is burdened with finding, by a preponderance of the evidence, that the defendant was: 1) driving a motor vehicle (or boat), 2) the driver was properly seized by the arresting officer (No Search and Seizure Issues), and the driver’s BAC was above the legal limit. If the DMV proves these factors, then the DMV take action against the driver's privilege to drive (license).
Continuance Request: Sometimes the driver (Respondent) needs more time to prepare for his DMV APS hearing. In this situation, the driver may request a continuance based on good cause; however, the DMV may object to the continuance, and it is usually better to have an attorney request the continuance so as to assure the continuance paperwork is completed correctly and timely.
As stated, if the driver cannot attend the DMV APS hearing, the hearing will be conducted without the driver (unless the request for continuance is granted). However, in the situation where the driver presents no defense at the APS hearing, the driver will almost certainly lose his license. If the driver has a DUI lawyer attend the hearing, then that is the same as the driver being present.
DMV’s Decision After Hearing
After the DMV APS hearing, the DMV will contact the driver by letter that is sent both the driver and the driver’s attorney. The letter will inform the driver of what action, if any, the DMV intends to take against the driver.
If the driver’s driving license is revoked, suspended, or restricted as a result of DUI arrest or citation, then the driver has 15 days to appeal the DMV’s decision. Information on how and when to appeal a DMV decision is included in the letter from the DMV.
Note: Type of action taken by the DMV against a driver’s license depends on the driver’s driving history. For example, a first-time misdemeanor DUI may result in six-month suspension or restriction if the driver has no other issues against his driving record and if he did not refuse a chemical test at the DUI arrest. For more information on the length and type of driving restrictions, see Admin Per Se Hearings.
DMV Driver Safety Office Info: The regular DMV locations do not hold APS hearings for DUI arrest and citations. Rather, the DMV has special locations across the state for APS hearing. These special locations are called "Driver Safety Office."
In San Bernardino and Riverside County, the local DMV Driver Safety Office is located at: 1845 Business Center Dr. Suite 212, San Bernardino, CA 92408. The phone number is 909-383-7413. The driver should have his citation handy when he calls the DMV Driver Safety Office.
Getting Your License Returned: If the DMV restricts or suspends the driver’s driving license after the APS hearing, then the DMV’s letter will include information about how the driver may have his driving license return to him (reinstated).
The conditions for license reinstatement usually include the payment of $120 to the DMV, attend DUI classes (commence a DUI program and provide proof of enrollment to the DMV), obtain SR-22 insurance (special insurance that does not cover DUI accidents in the future), and abide by any condition of probation issued by the criminal court.
Note: When the DMV suspends or restricts the driver’s driving license after a DUI arrest or citation, then the driver may usually, but not always, have that suspension or restriction mitigated by installing an interlock ignition device (IID) in his vehicle. With an IID, the DMV will usually allow the driver to drive, even during the suspended or restrictive period. For more information, see Interlock Ignition Information & IID Misuse Penalties.
Note: The DMV may suspend or restrict the driver’s driving license even if the driver is not found to have driven under the influence of alcohol. This happens when the driver is suspected of DUI, but he refuses a chemical test. For more information, see Admin Per Se Hearing & DUI Suspension Law.
For more information on the DMV process in Admin Per Se Hearings for DUI, contact our DUI criminal defense attorneys today. Our attorneys have successfully handled hundreds of misdemeanor and felony DUI charges in the I.E., and we have extensive experience with DMV hearings related to DUI charges.
Our attorneys represent DUI defendants in the criminal courts and Respondents at the DMV admin per se hearing (APS) in the IE (San Bernardino and Riverside County), including defense of VC 23152 charges the cities and courts of Redlands, Rancho Cucamonga, Rialto, Yucaipa, Fontana, Ontario, Victorville, Riverside, Chino, San Bernardino, and Hesperia. Call today!
909-913-3138
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