DMV Hearing Specifics

Admin Per Se - APS Hearings

There is a difference between a DMV hearing and a criminal charge for drunk driving in San Diego. The DMV hearing is an administrative proceeding regarding your driving privileges and the circumstances surrounding the arrest, not the issue of whether you are innocent or guilty of a criminal act.

If the decision in your administrative per se (APS) hearing is against you, your driver's license will be suspended, but you have the right to request an administrative review of the decision by the department, and you have the right to appeal the decision to superior court.

All drivers in California consent to taking a breath or blood test when they get behind the wheel of a motor vehicle. If you are suspected of driving under the influence of alcohol, drugs or a combination of both, you will be required to take a urine test also.

Under 21 — "Baby Deuce" — Zero Tolerance for Alcohol Use: Individuals under the age of 21 must submit to a preliminary alcohol screening (PAS) or another chemical test if a police officer has reason to believe you were drinking.

  • If the PAS detects any alcohol in your system, your driver's license may be taken and suspended for one year. You will be issued a temporary license for 30 days, and you may request a DMV hearing within 10 days of your arrest.
  • If the PAS detects a BAC of .05 percent, the officer may administer a breath or blood test.
  • If a breath or blood test detects a BAC of .05 percent or higher, the officer will arrest you for DUI, and you will be detained until you can be released to your parents or juvenile authorities. (Vehicle Code Section 23140)
  • If the officer believes you are under the influence of alcohol or drugs, you may be required to submit to a blood or urine test. The breath test does not detect the presence of drugs.
  • If you refuse to submit to the PAS, breath test, blood test or urine test, your driver's license may be suspended.

What Is A DMV/APS Hearing And What Issues Are Discussed?

The DMV hearing is not required, but it can be requested within 10 days of your arrest. It is tape recorded, and it can be conducted by phone or in person. It is held before a driver safety hearing officer at the DMV. At the hearing, you will be able to review and challenge the evidence brought by the DMV, and to present evidence, witnesses and testimony to persuade the DMV to modify or rescind the action against you. It is critical to have a private lawyer to represent your best interests, protect your rights and build a strong case to protect your license. A public defender will not help you in this phase of the process.

Issues and questions addressed in the hearing include:

  1. Did the police officer have reasonable cause to believe you were driving a motor vehicle in violation of Vehicle Code Section 23140, 23152 or 23153?
  2. Were you placed under lawful arrest?
  3. Were you driving a motor vehicle when you had a BAC of 0.08 percent or more by weight of alcohol in your blood?
  4. Did you refuse to submit to or fail to complete a blood test, breath test or urine test after requested to do so? Were you informed of the consequences of refusal?

Your Legal Rights At A DMV Hearing

  • You have the right to be represented by an attorney at your own expense.
  • You have the right to review evidence, cross-examine witness testimony, and present evidence, witnesses and testimony to persuade the DMV to modify or rescind the action against you.
  • You have the right to request an administrative review of the decision by the department if the DMV decision is against you, and you have the right to appeal the decision to superior court. However, such requests must be made within a certain time period, which is dependent on your type of hearing (stated in the notice containing the hearing decision).

What If You Are Found Not Guilty In The DUI Criminal Charge?

If you are found not guilty of the DUI charge in criminal court, a suspension or revocation will be reversed if it is determined by the San Diego DMV that the court decision does, in fact, equal an acquittal.

  • If the criminal charge is reduced, you may still have issues getting your driver's license back. A reduction of a DUI charge to reckless driving is separated and independent from the DMV administrative proceeding, and it does not affect your license suspension.
  • If the criminal case is dismissed, you still may have to deal with the DMV. Current laws may permit a driver a renewed right to a hearing within one year of the arrest date when a DUI charge is dismissed or not filed by the San Diego district attorney due to lack of evidence, or filed, but later dismissed by the court because of insufficient evidence.

If you are convicted of a DUI, you can likely get a restricted license if you have a noncommercial driver's license and you show proof of enrollment in a DUI treatment program, file proof of financial responsibility and pay a $125 reissue fee after a mandatory 30-day suspension. Additionally, you can likely obtain a restricted driver's license if you have a commercial driver's license and you were not operating a commercial vehicle at the time of the offense and you pay the $125 reissue fee after a mandatory 30-day suspension.

  • You may request a restricted license to drive to and from the DUI treatment program and to, from and during work.
  • The reissue fee remains at $100 if you were under age 21 and were suspended under the Zero Tolerance Law pursuant to Vehicle Code 23136, 13353.1, 13388 or 13392.
  • Any driver with a second DUI offense within seven years may submit proof of enrollment in a DUI treatment program, proof of financial responsibility and pay a $100 reissue fee one year after the effective date of the suspension to drive to and from an alcohol program and to, from and during work.
  • Any driver with a third or subsequent DUI offense within seven years is not entitled to apply for any type of restricted license.

If you win the DMV hearing, the hearing officer will set aside the suspension and let you keep your license. The DMV hearing officer can only set aside the administrative action against your driving privilege. This decision is separate and independent from any criminal charge. The prosecutor handles the criminal case against you.

Contact the Law Office of Mark Deniz now for a free case evaluation.