The DMV APS process: The administrative/civil case against your driving privilege
If you are arrested for any alcohol related driving offense, including driving under the influence:
YOU MUST CALL DMV WITHIN 10 DAYS and request an APS (administrative per se) hearing to preserve your hearing rights. Please note that apparently because of their increasing workload, DMV employees have recently been attempting to dissuade you from making your APS hearing request, however it ALWAYS remains in your best interest to keep your options open by timely requesting the hearing. Remember, you can always cancel the hearing later, with no penalty, if you decide it would be a wasted effort to proceed.
If you have been arrested for driving under the influence you must submit to a chemical test, blood or breath (urine, which was generally discontinued in 2000, is only an option if blood or breath is unavailable or if drugs are suspected) to determine the alcohol content of your blood. Failure to complete or refusal to take a test will result in suspension of your driver's license for one year (WITH NO RIGHT TO A WORK RELATED DRIVING LICENSE) if you are a first time offender, a two year suspension if you have a prior conviction within 10 years.
If any one of the chemical test(s) you choose determines your blood alcohol level is .08 percent or more, your driver's license will immediately be taken by the officer at the time of your arrest. Since the DMV is considered a civil arena, your due process rights have been determined by the courts not to apply. The officer will issue paperwork from the Department of Motor vehicles (Form DS-367) which is a 30-day temporary license which will allow you to drive while awaiting assignment of a hearing date. If the DMV assigns a hearing date after 30 days, which they commonly have to do because they are overbooked, you should receive an written extension so you can continue to drive until the hearing decision comes to you (it is ALWAYS mailed weeks, sometimes months after the hearing date) even after your 30 day temporary license has expired. In this manner your license may be extended many months after you were arrested for the offense.
If you do not request a hearing with the Department of Motor Vehicles within 10 days of your arrest (it used to be 30 days and some officers still mistakenly issuing the old forms can inadvertently give you an extra large window to request a hearing), your license will be automatically suspended. Typically, if you lose the hearing or fail to request a hearing in time, the Department of Motor Vehicles will suspend your privilege to drive for four months (one year if you have a prior conviction). However, you may be eligible for a five month restricted license after 30 days of your suspension, only if you are a first time offender. If you have a prior conviction within 10 years you are not eligible for a restricted (work driving only license) until a one year suspension is completed (and you must be attending the 18 month multiple offender alcohol program).
Failure to complete or refusal to take a blood alcohol test will result in suspension of the driver's license for one year (with no work related license available) .
Even if 10 days have passed, it may be possible to get a Department of Motor Vehicles hearing, depending upon the facts of your case. The DMV has been known to grant late hearing requests, on a case by case basis, if sufficient good cause can be shown in a written request setting forth the reasons. If you are beyond 10 days, contact the Department of Motor Vehicles to request a hearing immediately and, more importantly, contact a lawyer immediately to try to preserve and protect your rights.
At the APS hearing, either in person or by telephonic conference call, the DMV hearing officer preceding acts as both prosecutor and judge which definitely stacks the odds of winning in the DMV's favor. The hearing officer rules on all of his or her objections and after seeking to prove the DMV's case against you that same hearing officer (with no formal legal training) then decides if you win or lose. Although the above procedure has been upheld by the courts since the DMV proceeding is not criminal and your right to drive is a privilege and not a right, at least the whole matter MUST be tape recorded by the DMV. The tape recording provides a record should you want to appeal the DMV's ruling against you either to the DMV itself (an administrative appeal with predictable results) or through the courts (where the chance of success is increased somewhat but the cost of the matter to you is increased substantially).
Issues at the DMV Hearing depend upon whether the accused took a chemical test (breath, blood, or urine) or not.
If a chemical test was taken, the issues are:
Did the officer have reasonable cause to believe that the accused was driving a motor vehicle in violation of the drunk-driving laws (Vehicle Code Sections 23152 or 23153)?
Was the accused lawfully arrested?
Was the accused driving a motor vehicle when she or he had .08 or more, by weight, of alcohol in their blood?
If a chemical test was not taken, the issues are ( in addition to the above first two issues):
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?
Did the accused refuse to submit to, or fail to complete, a chemical test after being requested to do so by a peace officer?
Lastly, the DMV most often sets aside the suspension (meaning you win) based on technical violations of law which the layperson (you) often does not realize exists. So the DMV case against you that may seem airtight, because the alcohol level is over the legal limit, can many times be won because of the officer's inability to strictly follow the legal guidelines. Statistic show persons contesting the DMV suspension, with an attorney, win approximately 30% to 50% of the time they fight.
The content of this website is for informational purposes only and is not to be relied upon as legal advice. Viewing this website does not create an attorney-client relationship with P. David Wool. Legal representation will only be established upon receipt of a legal services agreement and full compliance with its terms. The information contained on this website is based on current California state law only and can change over time. Laws vary from state to state. Do not rely upon the content of this website as legal advice. Contact a lawyer at once if you have a legal matter.
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