Losing an Administrative Per Se (APS)/DUI Hearing 2017-05-07T05:04:02+00:00

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Losing an Administrative Per Se (APS)/DUI Hearing

How Can I Lose My Administrative Per Se Hearing?

When any driver in California has been arrested for DUI and it is believed they operated a motor vehicle with a blood/alcohol concentration at or above the legal limit, the Administrative Per Se Law mandates the immediate suspension or revocation of that person’s privilege. If the accused driver makes a timely request for an Administrative Per Se Hearing, also known as an APS Hearing, the driver is given an opportunity to defeat the intended suspension or revocation of their driving privilege.

The suspension or revocation of a person’s driving privilege normally occurs for one of the following reasons:

  • Following an arrest for DUI, the accused driver fails to contact the DMV within the first 10-days following their arrest and their right to an APS Hearing is forfeit. In this case, the suspension/revocation of the driver license is automatic in 30 days.
  • Following the conclusion of an APS Hearing, the DMV Hearing Officer rules that the driver did not sufficiently rebut the DMV’s case and the suspension is reinstated.

When an Administrative Per Se Hearing has concluded, the hearing officer will normally announce that the hearing is closed and that he or she will render a decision in writing in the next 10 to 14 days. Although hearing officers will occasionally announce immediately when a driver has won their hearing, it is extremely rare for a hearing officer to immediately announce when a driver has lost a hearing; especially in those instances where the driver is present.

In most instances, the DMV hearing officer will review the file, their case notes, and perhaps the audio recording of the hearing. When preparing their written decision, the hearing officers will sometimes document their findings and conclusions as part of the decision. In some instances, however, the hearing officer will simply document the outcome as a win or loss. In those instances, the driver and their representative may request a copy of the actual findings and conclusions to determine the basis for the hearing officer’s decision.

When a hearing officer renders their written decision, the document is normally mailed to the driver with a copy sent to their representative. If the hearing officer has ruled on behalf of the driver and reinstated the driver license, the written decision will provide instructions for obtaining a “duplicate” of their original driver license and the driver is returned to full driving privileges.

On the other hand, if the DMV hearing officer has ruled against the driver, the written decision will indicate that the suspension or revocation of the driving privilege will be “re-imposed” and will document the term of the suspension/revocation.

The penalty the driver may suffer will vary from case to case based upon a variety of factors. The term of suspension or revocation may be longer if there a prior APS suspensions or Court Convictions in the person’s background. The term of suspension can also be affected if a driver refuses to provide a chemical test at the time or arrest or if they are on DUI probation when arrested for a new case.

First Offender (Over 21 years of age):   In this category, the DMV will order a 4-month suspension of the driver license. The driver is eligible for an upgrade to a “restricted” driver license after 30 days. Other penalties also apply (i.e. Completion of a DUI School, Filing of an SR-22 Form and payment of a re-issuance fee).

If the First Offender “refuses” to submit to a chemical test of their blood or breath, the DMV will suspend the driver license for 1-year and there is no provision for a “restricted” driver license.

First Offender (Under 21 years of age):   In this category, the DMV will order a 1-year suspension of the driver license. The driver is eligible to apply for a “Critical Need” restriction after 30 days and after payment of an application fee. Other penalties also apply (i.e. Completion of a DUI School, Filing of an SR-22 Form and payment of an application fee and a re-issuance fee).

If the under 21 First Offender “refuses” to submit to a chemical test of their blood or breath, the DMV will order a one-year suspension of the driver license and there is no provision for a “critical need” restriction. In this case, the driver must serve the 1-year period without driving.

Second Offender (Over 21 years of age):   If a driver loses an APS Hearing within 10-years of a prior APS suspension or court conviction, the DMV will order the 1-year suspension of the driver license. The driver is eligible for an “IID Restriction” after 90 days. Other penalties also apply (i.e. Completion of an 18 month DUI School, Filing of an SR-22 Form and payment of a re-issuance fee).

If the Second Offender “refuses” to submit to a chemical test of their blood or breath, the DMV will order the two-year suspension of the driver license. In this category there is no provision for an “IID Restriction” and therefore the driver must sit out the entire two-year period.

If the Second Offender is on DUI probation at the time of the new second offense, the DMV will order the one-year suspension of the driver license and the driver is eligible for the “IID Restriction” after 90 days.

Second Offender (Under 21 years of age):    If a driver who is under the age of 21 loses an APS Hearing within 10-years of a prior APS suspension or court conviction, the DMV will order the 1-year suspension of the driver license. In this category, there is no provision for a “restricted” driver license, so the driver must serve the full 1-year period of no driving.

If the under 21 Second Offender also refuses to submit to a chemical test of their blood or breath, the DMV will order the two-year suspension of the driver license. In this category, there is no provision for a “critical need” restriction and therefore, the driver must sit out the entire two-year period of no driving.

If the under 21 Second Offender is also on probation at the time of the new second offense, the DMV will order the two-year suspension of the driver license. In this category, there is no provision for a restricted driver license and therefore, the driver must sit out the entire two-year period of no driving.

Third or more Offender (Over 21 years of age):   If a driver loses an APS Hearing within 10-years of two or more prior APS suspensions or court convictions, the DMV will order the 1-year suspension of the driver license. The driver is eligible for an “IID Restriction” after 180 days. Other penalties also apply (i.e. Completion of a 36 month DUI School, Filing of an SR-22 Form and payment of a re-issuance fee).

If the multi-offender also refuses to submit to a chemical test of their blood or breath, the DMV will order the revocation of the driver license for three-years. In this category, there is no provision for a “restricted” driver license and the driver must sit out the entire three-year period of no driving.

If the multi-offender is also on DUI probation at the time the new offense occurred, the DMV will order the two-year suspension of the driver license. The driver is eligible for an “IID Restriction” after 180 days.

Additional Penalties:   Any time a driver loses their APS Hearing at the DMV; there will be some term of driver license suspension. In order to get their driving privilege upgraded to a “restricted status” or to get the driver license “fully reinstated,” there will be additional penalties:

*          Enrollment and completion of a DUI School. Depending on the facts in the case, a driver may be forced to complete a DUI school ranging from 3 months to 36 months. In some counties, the driver is mandated to attend an “orientation class” before they are eligible to enroll in the DUI school. This is just another mechanism for cash-strapped counties to make money, but it can be quite frustrating if you don’t know how to navigate through these problems.

*          Filing of an SR-22 Form. Whenever the DMV suspends or revokes a person’s driver license, one of the steps required to reinstatement of the driver license includes the filing of an SR-22 insurance form. This is a particular “high-risk” insurance policy assigned to negligent or dangerous drivers. This can be quite costly if not handled correctly.

*          Installation of an Ignition Interlock Device (IID). California law now permits (and in some instances mandates) a driver to install an ignition interlock device in any car they drive. This is inconvenient and potentially embarrassing as you must blow into this device before your car’s engine will start. Again this can be quite costly.

*          Payment of a re-issuance fee. Looking to make money for the State, the Legislature mandates the payment of a “re-issuance fee” before a driver license may be upgraded or reinstated. Normally there is a re-issuance fee of $120 following and APS Suspension and $55 following a court conviction, and yes, you have to pay both if suspended and convicted.

Call US Today to Avoid Losing Your APS Hearing at the DMV.

Winning an Administrative Per Se Hearing at the DMV can be an “uphill battle.” Many attorneys won’t even challenge the DMV process any longer because it is a source of such tremendous frustration. At California Drivers Advocates, DMV Administrative Hearings are all we do; and we do them very, very well.

Call the DMV Defense Experts today at California Drivers Advocates and let one of our Advocates go to work for you. Fighting and winning APS hearings is our specialty.

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