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The hidden San Diego DUI consequence….the DMV APS License Suspension

by | Feb 14, 2014 | DUI Cases |

A San Diego DUI attorney must represent their client dealing with two separate entities…..the criminal court system and the California DMV. Most of my clients list getting their drivers license privilege restored as one of the most important aspects of the San Diego process (behind potentially going to jail). It is key to not gloss over the APS hearing. It is place to really get familiar with the facts of the evidence. The APS can be part of a comprehensive proactive San Diego DUI defense. At our firm we try as much as possible use the APS hearing as our “scrimmage game” before preparing for the jury trial.

San Diego DUI lawyers representing a client before the Department of Motor Vehicles in a so-called “admin per se” case (also called “APS” or, in the case of refusal suspensions, “implied consent”) must understand that the laws and rules are quite different from those encountered in the courtroom. Quite simply, the statutes are complex and confusing, the administration political and bureaucratic in the extreme, and the procedures and evidentiary rules almost completely lacking in due process. They will find that his “discovery” may be faxed to him the afternoon before the hearing, that the entire case probably consists of paperwork, and that if he insists on his right of confrontation must subpoena the arresting officer and pay his salary for the privilege. They will also be surprised to find that “prosecutor” and “judge” are one and the same. This “hearing officer” will rule on his own objections, grant himself continuances when he is caught unpre-pared during the hearing (and routinely deny counsel’s requests for continuance), and answer to his superiors if his “set aside” rate (per-centage of hearings won by the licensee) is considered too high.

The APS procedures are a morass of unfair rules that have evolved over the years due to the intense political pressures that usually come with a San Diego DUI. However, the attorney who learns the intricacies of this bureaucratic jungle and can exploit its weaknesses will find is own “set-aside” rate climbing.


The client arrested for drunk driving who takes a breath test indicating a blood-alcohol concentration of .08% or greater will have his license immediately confiscated by the arresting officer and be served an “Administrative Per Se Order of Suspension/Revocation and Temporary License Endorsement”. If a blood, or in the rare case a urine, sample is withdrawn, the consequences are the same: the license will be confiscated and the order served even though the eventual results will not be known for some time. See Vehicle Code § 23612. And if the client is accused of refusing to submit to chemical testing, the license will similarly be seized and suspended with more severe consequences. If the officer fails to take the license or serve the order, the DMV will subsequently mail the order to the individual. The document served by the officer serves as (1) a notice of the administrative suspension, and (2) a 30-day temporary permit to drive, and (3) notice of the right to request an administrative hearing within 10 days.

This action is taken pursuant to Veh C § 13353.2 and 13382. The latter statute provides:

(a) If the chemical test results for a person who has been arrested for a violation of Section 23152 or 25153, show that the person has 0.08 percent or more, by weight, of alcohol in the person’s blood, or if the person has been arrested for a violation of Section 23140, the chemical test results show that the person has 0.05 percent or more, by weight, of alcohol in the person’s blood, the peace officer, acting on behalf of the department, shall serve a notice of order of suspension or revocation of the person’s privilege to operate a motor vehicle personally on the arrested person.

(b) If the peace officer serves the notice of order suspension or revocation, the peace officer shall take possession of any driver’s license issued by this state which is held by the person. When the officer takes possession of a valid driver’s license, the officer shall issue, on behalf of the department, a temporary driver’s license. The temporary driver’s license shall be an endorsement on the notice of the order of suspension or revocation and shall be valid for 30 days from the date of arrest.

If the suspension is for a refusal to submit to chemical testing, the authority comes from the “implied consent” provisions of Vehicle Code § 13353 and 23612(e). The latter statute reads in relevant part:

(e) If the person, who has been arrested for a violation of Section 23140, 23152, or 23153, refuses or fails to complete a chemical test or tests, or requests that a blood or urine test be taken, the peace officer, acting on behalf of the department, shall serve the notice of order of suspension or revocation of the person’s privilege to operate a motor vehicle personally on the arrested person. The notice shall be on a form provided by the department.

Note: The phrase “or requests that a blood or urine test be taken” allows the officer to confiscate and suspend the license even though the results of a blood or urine test are yet unknown.

After confiscating the arrestee’s license and serving him or her with an order of suspension, the arresting officer will complete a document entitled “Officer’s Statement-Admin Per Se.” This one-page form sets forth the bare minimum facts necessary for the DMV to suspend the license: observation of driving (or statutory exceptions), probable cause, and breath test results. The document is signed under oath by the arresting officer and, if applicable, the breath machine operator. It is then supposed to be forwarded to the Department “immediately“—on or before the end of the fifth ordinary business day following the arrest.” [Veh C § 13382©] In fact, however, this deadline is routinely ignored with no consequences.

Vehicle Code § 13353.2(d) then provides that the DMV will conduct an automatic administrative review of the suspension. If valid grounds exist-the licensee was driving and the test result was .08% or more according to the officer’s report—Veh C § 13353.3(b) provides for a suspension of 4 months. If there are prior convictions within 7 years of Veh C § 23152, 23153, 23103.5 (“wet reckless”), or 23140, or § 191.5 or 192 of the Penal Code, the suspension is for 1 year. If there is more priors in the past, the suspension times can increase.

Note: A juvenile “conviction” may be used as a “prior” for purposes of determining the license suspension/revocation period; it may not, however, be used as a sentence enhancement in adult criminal court.

If it is an implied consent suspension for a refusal, Vehicle Code § 13353(a)(1) provides for a one-year suspension; if there are one or two priors within seven years, revocations of two and three years are mandated. Proof of insurance (the “SR-22” form) and an administrative fee is required to reinstate the license after any administrative suspension.

In the end, it is key to not gloss over the APS hearing.  It is place to really get familiar with the facts of the evidence.

Hire a Proactive, affordable, and quality defense when you are facing San Diego DUI charges. Whether you have been charged of a San Diego DUI, Poway DUI, La Mesa DUI, Santee DUI, Mission Valley DUI, Clairemont DUI, Point Loma DUI, La Jolla DUI, Carmel Valley DUI, Mira Mesa DUI, Pacific Beach DUI, Del Mar DUI, Carmel Valley DUI, Encinitas DUI, Oceanside DUI, Ocean Beach DUI, Escondido DUI, Vista DUI, San Marcos DUI, Carlsbad DUI, El Cajon DUI it is vital you need to hire an attorney who knows how to defend your rights and can determine if the government can prove their case. Contact the Law Office of Mark Deniz now for a free case evaluation at 858-751-4384 or send an email to [email protected]

Driver Safety Administrative Hearings

A Guide to the Driver Safety Administrative Hearing Process

PDF Version


Administrative hearings conducted by the Department of Motor Vehicles (DMV) differ from court trials– they feature more relaxed standards of evidence and procedure and take place before a DMV Driver Safety (DS) Officer. They provide a fair and impartial forum for individuals who have received notification that an action is being taken against their driving privilege and wish to contest the action. This is a general guide for those entitled to request a DS administrative hearing and to help you understand how to prepare for your hearing. You must request an administrative hearing within 10 days of receiving personal service or 14 days from the date the notice is mailed. If you do not make a timely request, your right to a hearing will be forfeited.

Not all administrative hearings are the same. This guide may not provide all the information you may need to prepare for your individual hearing. If you have any questions regarding how a hearing is conducted, contact any of the DS offices listed in this publication.

Note: Administrative hearings for drivers who hold a special certificate may not be conducted in the same manner as described in this publication.

Remember: Read all the documents you were personally provided or that were mailed to you by DMV. These documents explain the issues involved in your case, what deadlines you must meet, and your rights in the administrative hearing process. The hearing will be limited to the issues listed in the documents.

Why Do I Need a DMV Hearing?

The administrative hearing provides an opportunity to present relevant evidence or testimony on your behalf regarding an action taken or the intent to take action against your driving privilege by DMV. You may also have to appear in court for the same reason DMV is taking action against your driving privilege. Actions taken by the court are independent of any action taken by DMV.

What Are My Hearing Rights?

You have the right to:

  • Be represented by an attorney or other representative, at your own expense.
  • Review the evidence and cross examine the testimony of any witness for DMV


  • Testify on your own behalf.
  • Cross–examine opposing witnesses.
  • Subpoena witnesses and/or documents.
  • Introduce evidence on your behalf.
  • A full and fair consideration of the facts by an impartial person.
  • A Department Review and/or judicial appeal of any adverse decision.
How Do I Review DMV’s Evidence (Discovery)?

Call to request or submit a written request to review and obtain a copy of DMV’s evidence regarding your case (known as discovery) at least 10 days prior to the date of your hearing. In some cases, DMV automatically provides you with the evidence (discovery). If you do not request a hearing, you give up your right to review the evidence DMV will consider when making a decision in your case.

How Do I Obtain Records From Agencies or Have Witnesses Come to the Hearing?

You have the right to subpoena relevant records or other documents, photos, etc. to be produced on your behalf at the administrative hearing.

Although your witness(es) may voluntarily attend your hearing, a subpoena protects your right under the law to compel the attendance of any witness. For any witness you subpoena on your behalf, you are required to pay all witness fees and mileage to the hearing location. If you know a witness requires special accommodation, please contact DMV as soon as possible.

Note: Subpoenas are available online at www.dmv.ca.gov/forms/formsds.htm or at any DS office. Someone other than you must serve the subpoenas.

What Kind of Evidence Can I Provide on My Behalf?

Evidence you present must be relevant to your case and can be presented in the form of sworn documents, medical records, collision reports, photographs, or other relevant items. Evidence can also be sworn testimony taken under oath. On the date of your hearing, be prepared to bring any witness(es), or written evidence from any witness, who knows the specific issues involved in your case. Your witness(es) should be prepared to answer any questions raised by the hearing officer.

Note: Evidence presented on your behalf cannot be returned to you because it is part of the official administrative hearing record maintained by DMV.

What if I Need an Interpreter?

If you or a witness needs a sign or language interpreter, immediately contact DMV to make arrangements for an interpreter.

What if I Cannot Attend my Hearing or I Fail to Appear?

If you cannot attend your administrative hearing on the scheduled date and time, you must contact DMV prior to the hearing and within 10 working days of the time you know, or should have known, you need a continuance. You may have to file a written statement indicating the reasons you cannot appear. DMV may grant the continuance if you are not responsible for causing the delay and made a good faith attempt to prevent the delay. If a continuance is not granted and you do not attend your hearing, DMV will proceed with the hearing in your absence.

How and When Will I Be Notified of the Decision?

You will be notified in writing of the hearing officer’s decision, even if you do not attend your hearing. The time it takes to make a decision depends on the issues being addressed, the amount of evidence and witness testimony presented.

Can I Appeal DMV’s Decision?

You may have the right to request a department review of the decision, as well as the right to appeal the decision to Superior Court. Requests for a department review, or an appeal of the decision in Superior Court, must be made within a certain time period depending on the laws affecting your case and a fee will be required. The time periods for appeal and other information concerning your specific appeal rights are provided on the notice advising you of the administrative hearing decision.

What Type of Decision Can Be Made?

Depending on the type of administrative hearing, a hearing officer may sustain (keep in effect), set aside (dismiss), end, or modify DMV’s earlier decision. If a time period for an action against your driving privilege is specified in the California Vehicle Code (CVC), the hearing officer cannot change the length of the action.

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