It is 2016 and I thought we would begin where a DUI defense really begins….the APS Hearing. Once you gather the vitals on a client the next step is to set an APS hearing.
Motorists arrested for a San Diego DUI have only 10 days from the date of arrest to request an Administrative Per Se (APS) hearing from the California DMV to determine whether or not the driver’s license will be suspended. The hearing gets set out about aa month from the date of arrest. It will usually be held a week or two before the first hearing (arraignment) at the appropriate courthouse.
The Department of Motor Vehicles case is separate from the criminal court case the driver faces. A good proactive defense will allow the use of the DMV case to help you on the court side. You have the power to subpoena reports, videos, calibrations, and the police officers. This is key in a DUI case. There is no public defender who will help you with the APS hearing. What happens is people either do not utilize the APS hearing as they should or never even set it and get their license automaticallly suspended. At minimum, the hearing should be used to begin the examination of facts.
The DMV has the burden of proof at an APS hearing. It must prove by a preponderance of the evidence that the arresting officer had a reasonable belief that the driver was under the influence, that the arrest was lawful, and that the driver had a blood alcohol content (BAC) of .08 percent or greater while driving a motor vehicle. If all three of these facts are proven, the license will be suspended.
The reality is most of these hearings result in a suspension. Preponderance of the evidence is a low standard (see definitions). That is why the hearing should be used as a dual purpose of fighting for the license and examing the facts for the upcoming (and more important) court case.
The San Diego APS hearing officer serves as both prosecutor and judge (I call them “Prudges”). They will seek to enter a variety of documents in the record. A key is making sure the documents pass muster and issues in the reports will be identified on the record.
It is also the time for the driver to present testimony of their behalf. I know our firms almost always presents evidence if there is a driving issue defense.
After both sides present their cases, the San Diego DMV hearing officer takes the case under submission. The driver receives the decision in the mail – usually in one to two weeks.
An Administrative Per Se (APS) hearing can result in two possible outcomes. The best result is a set aside the action and there is no suspension. Now, the court may eventually suspend the license but for the present time there would be no suspension.
Another possible outcome is an Administrative Per Se suspension. In that case, the driver begins the process to become a restricted driver.
An Administrative Per Se action also means the driver must file a formal proof of insurance,or SR-22, with the California DMV. This requirement may be imposed for at least three years.
The APS hearing is an important part of a San Diego DUI case. It is separate but at the same time they are linked. The key in these cases is to be proactive and use all the resources that you can to give you the best resolution possible.
Call our office now to get started at 858-751-4384.