Administrative Per Se (APS)/DUI Hearing DMV Procedures 2017-05-07T05:04:03+00:00

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Administrative Per Se (APS )/DUI Hearing DMV Procedures

What are the Administrative Per Se (APS)/DUI Hearing DMV Procedures

When any driver has been arrested in the State of California for driving with a blood/alcohol concentration above the legal limit, they immediately fall under the microscope of the California Department of Motor Vehicles (DMV). Under California’s Administrative Per Se Law, the DMV will immediately begin the process of suspending or revoking the accused person’s driving privilege.

Before the DMV automatically suspends or revokes a person’s driving privilege, they must provide an opportunity for the accused person to defeat the suspension by rebutting (disproving) the evidence against them. The process by which the accused driver is permitted to defend themselves is known as an Administrative Per Se Hearing, commonly referred to as an, “APS Hearing.”

The Administrative Per Se Law in California is a very rigid statute that actually presumes that the accused driver is guilty of driving with an excessive blood/alcohol concentration. The procedures followed by the DMV in enforcing the Administrative Per Se Law are equally rigid and unforgiving. The Administrative Per Se Law was actually written with the idea of limiting the defense an accused driver may present, and to take that person off the road as quickly as possible.

As a general rule, once a person has been arrested for DUI, the following procedures are followed by the DMV:

  • Seizing of the Driver License: At the time of arrest, the arresting officer will seize the accused person’s driver license (unless an out of state driver) and provide the driver with a “Notice of Suspension and Temporary Driver License” (Form DS-367), and the arresting officer will prepare a written report. The written report and the seized driver license must be sent to the DMV headquarters in Sacramento within 5-buiness days. DMV headquarters will then destroy the driver license and update the driving record to reflect a pending administrative action. The police reports and other supporting documents are then mailed to the Driver Safety Office (DSO) located closest to the point of arrest.
  • Initial Review: Once the written report and supporting documents is received by the local Driver Safety Office, the case is assigned to a DMV Hearing Officer for initial review. Essentially, this is a quick, cursory, review to ensure that the officer’s sworn report meets minimum standards to support the driver license suspension and to ensure that the accused was driving with an alcohol level above the legal limit. During the initial review, the hearing officer may determine that the case cannot support a license suspension and may automatically issue a “Notice of Set Aside” which effectively terminates the action and the driver’s privilege is fully reinstated. The hearing officer also has the power to return the case to the arresting officer to provide more information before a decision is made. Finally, the hearing officer may decide that the case is sufficient to support a license suspension and that the action is warranted.
  • Administrative Per Se (APS) Hearing: If within the first 10-days following their arrest, the accused driver contacts the local Driver Safety Office and makes a timely request for a hearing, and if the case was not automatically “Set Aside” during the initial review process, the DMV must grant the driver’s request for an APS Hearing. If the DMV cannot conduct the hearing and render a final decision within the first 30-days following the arrest, they must also grant a Stay of Suspension which permits the accused driver to continue driving until the outcome of the hearing.

An Administrative Per Se Hearing is a full-blown, evidentiary hearing where the DMV will present its case and then challenge the driver to present evidence to reverse the intended suspension of their driving privilege. At the APS Hearing, the DMV will presume all of their evidence to be true and accurate. The driver has the obligation of rebutting (disproving) the evidence against them.

  • Notice of Findings and Decision: Once the APS Hearing has been concluded, the DMV Hearing Officer will consider all of the information in the file and then render a decision in writing. The decision, known as a “Notice of Findings and Decision” is a win or lose proposition. If the hearing officer has ruled in favor of the driver, an order of “Set Aside” is prepared and the driver license is fully reinstated without penalty. If the hearing officer rules against the driver, the suspension or revocation of the driver license then will go into effect.
  • Request for Administrative Review: If the DMV Hearing Officer’s decision is unfavorable, the affected driver may file a “Request for Administrative Review.” This is a low-level appellate process where the file is sent the DMV’s legal department in Sacramento. At the Administrative Review, the entire case file is reviewed by another DMV employee who is tasked with deciding whether to overturn the suspension or uphold the suspension. As with everything the DMV does, the filing of a Request for Administrative Review is time sensitive. A Request for Administrative Review must be filed within 15 days of the date of the “Order of Suspension.”
  • Writ of Mandate: In those cases where the DMV has issued an unfavorable ruling, and where the driver believes the DMV Hearing Officer has ignored or violated in the law in making their decision; the driver does have a right to file a full-blown legal appeal to the Superior Court in the County where they were arrested. Known as a Writ of Mandate, this is a complicated area of law where the case is reviewed by a Superior Court Judge.

An Administrative Per Se Hearing, also known as an “APS Hearing” is a complicated and frustrating legal process that clearly demonstrates the arrogant and stubborn nature of a very powerful California Bureaucracy—The California Department of Motor Vehicles (DMV). Armed with the power of the Administrative Per Se Law, the DMV presumes that the arresting law enforcement officer had a lawful reason to contact you, had a lawful reason to arrest you, and that you drove with a blood/alcohol concentration exceeding the legal limit.

An APS Hearing is a full-blown, evidentiary hearing where exhibits are presented, witnesses testify, experts offer opinions, objections are made, and legal arguments are presented. To have any hope of prevailing at an Administrative Per Se Hearing, a driver must have a commanding knowledge of the California Vehicle Code, the California Administrative Code, the Evidence Code and several other statues and codes that control the procedures of the hearing. To be quite honest, it is nearly impossible for the average driver to present a valid, relevant, and admissible argument without some degree of help.  The DMV hearing officer WILL NOT consider the negative impact a license suspension or revocation will have on your life. They simply will not listen to it.

If your driving privilege is critical to your continued employment or the very maintenance of your lifestyle, you cannot afford to present an argument at the DMV that will be largely ignored or ruled inadmissible. If you truly need to preserve your driving privilege, the only reasonable path to doing so is to retain the assistance of a DMV Defense Expert.

The DMV Defense Experts at California Drivers Advocates (CDA) have been fighting and winning Administrative Per Se Hearings with the California DMV for many years. Using a complete team of Administrative Advocates, Investigators, Accident Reconstruction Experts, and Forensic Alcohol Experts; CDA approaches each case with the expectation that there is a way to win the client’s hearing. Using a proven method of investigation, research, and preparation, CDA has amassed a list of DMV victories that are far above the state-wide average.

Although we are based in Southern California, CDA defends drivers in all of the Driver Safety Offices throughout California. A simple plane ride puts us on the ground fighting your case face to face with the DMV, wherever the case may be. Don’t let geography frighten you. Battles at the DMV are won or lost based upon your representative’s knowledge, experience, and commitment to excellence. Don’t leave anything to chance. Call CDA today to win your APS Hearing.

Call Us to Win Your Administrative Per Se Hearing

When a driver enters an Administrative Per Se Hearing at the DMV, the deck is stacked against them. Under the provisions of Administrative Law, the DMV presumes your guilt and challenges you to prove them wrong. Also, the DMV Hearing Officer will do nothing to give you guidance, or to assist you in the presentation of your case. This is an incredibly “one-sided” affair if you don’t have help. On the other hand, when a driver enters an APS Hearing represented by one of the DMV Defense Experts from California Drivers Advocates, the entire atmosphere changes. The hearing officer is not nearly as arrogant when confronted by a DMV Defense Expert who knows as much, or more, about Administrative Law than they do.

CDA’s approach to an Administrative Per Se Hearing is one of complete investigation and preparation. Combine that with a quiet sense of confidence and professional demeanor, and the hearing officer knows they’re in for a fight. If the loss of your driving privilege can be a devastating blow to your career, your family, and your life, don’t waste one minute considering how to fight the DMV on your own. Call CDA immediately. We’ll put our hearts and souls into your defense.

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More about Administrative Per Se (DUI) Hearings at the California DMV

What is a DS-367M

What is the Implied Consent Law

DUI/Sobriety Checkpoints