YOU
HAVE 10 DAYS FROM THE DATE
YOU ARE ARRESTED FOR A DUI
TO CONTACT THE DMV AND REQUEST
AN ADMINISTRATIVE HEARING
REGARDING YOUR LICENSE.
In 1990, California became the 28th state to implement an immediate
driver license suspension law for alcohol-impaired drivers, also
referred to as an “Administrative Per Se (APS)” or “on-the-spot”
license suspension law. The California APS law requires the Department
of Motor Vehicles (DMV) to suspend or revoke the driving privilege
of persons who are arrested for driving with a blood alcohol concentration
(BAC) of .08% or more, or who refuse a chemical test upon arrest.
In January 1994, California implemented a companion driver license
suspension law, known as the “zero tolerance law,” which
requires DMV to suspend for one year any driver under age 21 with
a BAC of .01% or more as measured by a preliminary alcohol screening
test, or who refuses or fails to complete the test. These administrative
actions are independent of any criminal penalties imposed in court
for conviction of the driving-under-the-influence (DUI) offense.
Upon arrest, or detention (as applicable in the .01% APS law), the
driver’s license is immediately confiscated and an order of
suspension or revocation served.
For either law, due process is allowed by the issuance of a 30-day
temporary license intended to provide the driver with sufficient
time to challenge the suspension through DMV administrative review.
The time allowed to challenge the suspension was reduced from 45
days on July 1, 1993. As of January 1, 1993, offenders who are dismissed
for insufficient evidence or are never charged by the court may
request an APS dismissal hearing to consider setting aside the associated
APS action. Under the .08% APS law, when a driver submits to and
“fails” a BAC test and has no prior DUI convictions
or APS actions (within 7 years prior to September 20, 2005 and within
10 years thereafter), a 4-month license suspension is imposed. Following
30 days of “hard” suspension, and providing they first
demonstrate proof of insurance, show proof of enrollment in an approved
alcohol treatment program, and pay all penalty fees, the law provided
for such drivers to obtain either a 90-day restricted license to
drive to and from an alcohol treatment program (repealed September
20, 2005), or (as of January 1, 1995) a 5-month restricted license
which also allows driving to, from, and during the course of employment.
A 1-year suspension is imposed on drivers having one or more prior
DUI convictions or APS actions within 7 years prior to September
20, 2005 and within 10 years thereafter, with no provision for a
restricted license.
Under this law, for offenders refusing a BAC test, a 1-year license
suspension is imposed for a first offense, a 2-year revocation is
imposed for a second offender refusal, and a 3-year revocation is
imposed for a third-or-subsequent offender refusal (within 7 years
prior to September 20, 2005 and within 10 years thereafter). There
are no provisions for issuance of a restricted license following
a BAC test refusal.
The .01% BAC law requires a 1-year suspension and provides for a
hardship restriction only if a BAC test was completed and the driver
can demonstrate a critical need to drive.
As of September 20, 2005 commercial drivers arrested in a noncommercial
vehicle and having no prior DUI convictions or APS actions (within
7 years prior to September 20, 2005 and within 10 years thereafter)
are handled no differently than other first offenders and are no
longer granted an automatic restriction to drive to, from, and during
the course of employment following a 30-day “hard” suspension
as they originally were. (A noncommercial vehicle is one not requiring
a commercial driver license, or heavy-vehicle operator’s license,
to drive.)
What Happens at the DMV DUI/DWI Administrative
Per Se Hearing
A DMV Administrative Per Se Hearing is an informal proceeding that
occurs in-person or can occur over the telephone. The hearing officer
conducts the hearing acting as both the judge and prosecutor. This
is a conflict that is allowed to exist under current law and requires
a truly knowledgeable and savvy attorney to handle.
Our office generally conducts the DMV hearings in person as opposed
to telephone hearings. We feel this is an important service to provide
our clients and we are convinced based on our experience and success
that it is important to conduct the hearings in person.
The hearing occurs at a DMV Driver’s safety office in a plain
room with generally a simple table and chairs, tape recorder and telephone.
The hearing officer and the attorney are present. The hearing officer
will make a decision on whether to require the law enforcement officer
who arrested you for DUI to appear. The DMV is not required to bring
in the officer and can rely entirely on the police report.
The attorney can compel the law enforcement officer’s appearance
if it is in the interest of the client to have the law enforcement
officer present. The attorney can compel other witnesses to appear
and testify if it is in the client’s interest, including expert
witnesses to address issues such as the validity of the chemical test.
The issues to be decided at the DMV
hearing are:
When a chemical test was taken:
1. Did the officer have reasonable cause to believe that the accused
was driving a motor vehicle in violation of the drunk driving laws
(CVC 23152 or 23153)
2. Was the accused lawfully arrested
3. Was the accused driving a motor vehicle when she or he had .08
or more, by weight,
of alcohol in their blood When no chemical test is taken
1. Did the officer have reasonable cause to believe that the accused
was driving a motor vehicle in violation of the drunk driving laws
(CVC 23152 or CVC 23153)
2. Was the accused lawfully arrested
3. Was the accused told that their driving privilege would be suspended
for one year, or revoked for two or three years, if they refused to
submit to, or failed to complete, a chemical test
4. Did the accused refuse to submit to, or fail to complete, a chemical
test after being requested to do so by a peace officer?
Our office has many winning strategies that address each of the issues
raised at an Administrative Per Se hearing. We have been very successful
in formulating different winning strategies for our clients.
To request a hearing, you MUST contact a Driver Safety Office.
Click here for a list.
