Introduction

If you are cited for a violation of one of the alcohol-related DUI statutes (most commonly Veh. Code § 23152(a) & (b)), in addition to likely facing criminal DUI charges, you will face a separate DMV action against your driver license.  Under its “stop and snatch” authority, the officer will seize your driver license at the time of arrest as an agent of the DMV.  Thereafter, the officer will issue you a pink temporary driver license which is also supposed to serve as the your notice that you have 10 days to request a DMV Administrative Per Se Hearing to contest the impending suspension of your driver license.

At an APS (Administrative Per Se) Hearing, a DMV Hearing Officer will determine whether your license should be suspended.  You are entitled to have a lawyer represent you at this hearing, but one will not be appointed to you.  You must hire your own private attorney.

Again, this is a separate and independent action from the court (criminal) action, and if your hearing is lost, your license will be suspended.  Suspension length varies depending on what your BAC was and how many prior DUIs and wet-reckless convictions you have, and/or prior APS hearings you have lost

Basic Information

You have the right to have a lawyer represent you at DMV hearings, however, this service is not provided for you and is at your own cost.  You may also have a non-lawyer represent you or you may represent yourself.

Interestingly, DMV hearing officers are both the judge and prosecutor in your DMV case.  If you’re wondering how they can be neutral and fair, and how this isn’t a violation of due process, you wouldn’t be alone.  Somehow, non-judges are given this awesome power of being both the judge and jury in a decision that could result in the loss of probably the most important “privilege” any American has: the privilege to move freely in a personal vehicle.

At this hearing, as stated above, three issues are argued.  You are entitled to an in-person hearing if you choose.  You may also request that the hearing be conducted telephonically.  At the hearing, you are called the respondent, and you have the right to call witnesses and examine them, subpoena witnesses, present evidence, cross examine the DMV’s witnesses, and make argument regarding the three issues.  You may hire a forensic toxicologist or any other expert witness to testify in order to prove your BAC was not the required concentration.

After the hearing, the DMV will send via mail a written notice of decision explaining the decision s/he has made.  At that time, your license suspension will either be re-imposed, or lifted.

The authority for the DMV to suspend a person’s driver license based on an alcohol-related driving offense is found in Vehicle Code § 13353.2:

(a) The department shall immediately suspend the privilege of a person to operate a motor vehicle for any one of the following reasons:

(1) The person was driving a motor vehicle when the person had 0.08 percent or more, by weight, of alcohol in his or her blood.

(2) The person was under 21 years of age and had a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test, or other chemical test.

(3) The person was driving a vehicle that requires a commercial driver’s license when the person had 0.04 percent or more, by weight, of alcohol in his or her blood.

(4) The person was driving a motor vehicle when both of the following applied:

(A) The person was on probation for a violation of Section 23152 or 23153.

(B) The person had 0.01 percent or more, by weight, of alcohol in his or her blood, as measured by a preliminary alcohol screening test or other chemical test.

The Process

Requesting the Hearing 

If you or your lawyer successfully request a hearing within the 10-day period after receiving notice of the DMV action, a hearing date will be set for you and/or your lawyer to argue against the suspension of your driver license.  At the time the lawyer makes the request on your behalf, the lawyer will request a stay of the execution of the suspension of your license pending the outcome of the hearing.  This means you will be able to continue driving until there is an adverse finding against you after the DMV hearing.  If the DMV cannot prove its case against you, your license will be reinstated.

Discovery 

The Respondent (person who is facing the suspension) has the right to receive and see the evidence against him or her in advance of the hearing in order to establish a defense and prepare for the hearing.  This is part of your right to due process.  Failure to give you the evidence against you before the hearing constitutes good cause for a continuance of the hearing.  The person through his or her attorney must request the evidence through an informal discovery request.  Ordinarily included in the evidence is the police report and supplemental narratives, blood alcohol concentration reports (PAS, blood and/ or breath), the DS 367 DMV form, and a list of witnesses the DMV wishes to have testify.

The Hearing

At that hearing, the following issues will be litigated:

  1. If you took a chemical test:
  2. Did the peace officer have reasonable cause to believe you were driving a motor vehicle in violation of Veh. Code §§23152, 23153, or 23154?
  3. Were you lawfully detained while on DUI probation or lawfully arrested?
  4. Were you driving a motor vehicle when you had 0.01% BAC or more while on DUI probation; 0.04% BAC or more while driving a commercial vehicle; or 0.08% BAC or more while driving a noncommercial vehicle?
  5. If you refused or failed to complete a chemical test:
  6. Did the peace officer have reasonable cause to believe you were driving a motor vehicle in violation of Veh. Code §§23152, 23153, or 23154?
  7. Were you lawfully detained while on DUI probation or lawfully arrested?
  8. Were you told that your driving privilege would be suspended or revoked for 1, 2, or 3 years if you refused to submit to or failed to complete a chemical test?
  9. Did you refuse to submit to, or fail to complete a chemical test or preliminary alcohol screening (PAS) test (while on DUI probation) after being requested to do so by a peace officer?

For the DMV to suspend your license, it must prove by a preponderance of the evidence (more likely than not) that the answer to each one of the applicable questions is yes.  The burden of proof is on the DMV, however, ordinarily the DMV Hearing Officer has enough evidence to sustain a suspension of your driver license by simply admitting the police report into evidence without the need to call witnesses or a forensic toxicologist.  If any of issues cannot be proven by a preponderance of the evidence, the person’s license will be reinstated and no suspension will occur.

As straight forward as these issues might seem, they are anything but.  A skilled criminal defense lawyer familiar with the DMV Administrative Per Se proceedings will be the best option for fighting your DMV hearing.

Consequences of Losing the Hearing

If you lose at a DMV hearing, or fail to request a hearing within 10 days of receipt of notice of the DMV action, your license will likely be suspended.  The license suspension durations vary based on the number of prior actions, what kind of vehicle the person was driving (passenger or commercial), and whether there was a refusal to submit to a chemical test.

The following is a short list of various suspension lengths for an adverse DMV action only (these periods may increase if there is also a finding of guilty or an entry of a no contest/ guilty plea in your criminal case):

1st DUI Action

  1. .08% or higher action
    1. 4-month suspension (restricted driver license eligible after 30 days)
  2. Minor w/ .01% or higher BAC action
    1. 1 year suspension (restricted driver license eligible after 30 days)
  3. Refusal to submit to chemical test action
    1. 1 year suspension (no restricted driver license eligibility)
  4. Commercial vehicle DUI action (.04%+)
    1. 4-month suspension (restricted driver license eligible after 30 days)

2nd DUI Action

  1. .08% or higher action
    1. 1 year suspension (restricted driver license eligible w/ IID installation after 90 days)
  2. Minor w/ .01% or higher BAC action
    1. 1 year suspension (no restricted driver license eligibility)
  3. Refusal to submit to chemical test action
    1. 2-year suspension (no restricted driver license eligibility)
  4. Commercial vehicle DUI action (.04%+)
    1. 1 year suspension (restricted driver license eligible w/ IID installation after 90 days)

Defenses

The defenses at a DMV Administrative Hearing are too numerous to write here.  Common classes of defenses include:

  1. Issues with the reliability of the chemical test(s) taken.
  2. Lack of reasonable suspicion to stop/ detain the person.
  3. Lack of probable cause to arrest the person.
  4. Illegal search and seizure issues.
  5. Blood alcohol evidence inaccuracies.
  6. Officer’s failure to comply with specific legal requirements and regulations.
  7. Lack of proof of driving, time of driving, specific BAC, etc.
  8. Violations of other constitutional rights.

Each DMV action will present a unique set of facts and require an attorney to analyze the specific legal issues raised by those facts.  Seemingly innocuous facts may to a skilled lawyer be key to a successful defense.  Even facts a non-lawyer may find to be highly incriminating or damaging to the person’s case can help establish a defense.

Unfortunately, most public defenders appointed to DUI clients in criminal court do not also represent the person at the DMV hearing.  In fact, by the time the person goes to his or her DUI court arraignment, it will likely be too late to request a DMV hearing and the person will forfeit the right to challenge the driver license suspension.  The only way to assess the strengths and weaknesses of your particular case and apply it at the DMV hearing is to learn the vast body of law applicable to your case and apply it yourself at the hearing, or hire a private criminal defense lawyer to challenge the action for you.

The Concurrent Criminal Case

With most DMV Administrative Per Se actions, there will usually be a concurrent criminal court case filed as well.  You may be facing DUI charges in addition to other offenses the District Attorney charges.  As mentioned above, the court will independently suspend a person’s driver license upon an entry of a guilty/ no contest plea, or a finding of guilty.  These durations may be different from the DMV suspension length, but depending on the timing of the two suspensions, they may run concurrently.

Miscellaneous Information

ADVISEMENT: YOU HAVE 10 DAYS FROM RECEIVING THE DMV NOTICE OF APS SUSPENSION ORDER TO REQUEST OR HAVE YOUR LAWYER REQUEST A HEARING TO CONTEST A DRIVER LICENSE SUSPENSION!

Failure to request the hearing within the 10-day period will likely result in a suspension of your driver license.  The DMV will still conduct a “hearing” in your absence and decide whether there is enough evidence to suspend your license.  The number to call to schedule a DMV hearing is not your local DMV office number, nor can you go to your local DMV office to schedule the appointment.

What You Should Do

First, you or your lawyer MUST request a hearing WITHIN 10 DAYS of receiving the notice of suspension order (the pink temporary license document).  If you fail to do so, you forfeit your right to contest the action and may not present a defense (except in rare cases where the person has a renewed right to contest the DMV action).  The best way to fight a DMV APS action is to hire an experienced criminal defense lawyer who regularly handles DMV hearings.  Although the DMV case is civil in nature, it is usually a criminal defense lawyer who will be the one fighting for you.  This is because ordinarily the person will hire a criminal defense lawyer for the criminal case, and the DMV hearing will be part of the scope of that representation.

The DMV makes the procedure to even request a hearing fairly difficult for people who have never dealt with DMV Administrative Per Se Hearings before.  Trying to navigate the DMV hearing process alone is a mistake that could cost you your driver license.

DUI and DMV Lawyer Matthew Luzaich regularly contests DMV actions for people with cases in the counties of Butte, Glenn, Sutter, Tehama, and Yuba.  He will call the DMV to request a hearing on your behalf.  He will at that time request a stay of the execution of the suspension of your driver license pending the outcome of your hearing.  He will request the evidence against you and review it with you.  He will research, analyze, and apply any defense applicable to your unique set of case facts.  He will advise you on the best course of action in your case.  In most cases, Mr. Luzaich can appear on your behalf without you needing to be present at the hearing.

The Law Offices of Matthew S. Luzaich provides free legal consultations regarding your DUI case and DMV Administrative Hearing.  He will discuss possible defenses, outcomes, strategies, and how the law applies to your unique case facts.  Call today for a free consultation.

Share This