THE ADMINISTRATIVE PER SE (APS) HEARING PROCESS (PART III)

 

This is the third part in the series: The Administrative Per Se Hearing Process.  This part addresses the types of Administrative Per Se Hearing Actions & Penalties.

 

TYPES OF APS HEARING ACTIONS & PENALTIES

 

Any person, whether a licensee of the State of California or a licensee of another state, who is ether caught driving with a blood alcohol concentration of 0.08% or more or refuses or fails to complete a chemical test, is subject to a suspension under the California Vehicle Code.  Before any suspension action can be sustained, every licensee must be afforded “notice” and “an opportunity to be heard.”  This means that in addition to notice of the suspension action, every licensee also has an opportunity to be heard, meaning, he/she has the right to present evidence to invalidate any attempt by the California Department of Motor Vehicles’ to impose a suspension.

 

A person subject to this type of suspension action gets this opportunity to be heard at an Administrative Per Se (APS) Hearing, which is held not before a judge, but a hearing officer.  A hearing officer is an employee of the California Department of Motor Vehicles who not only presents and argues the Department’s of Motor Vehicles’ case, but also sits as the judge and jury.  The hearing officer therefore serves as both the prosecutor and the judge in these hearings.

 

In support of its case the Hearing Officer presents sworn documentary evidence, similar to an affidavit, instead of live testimony from the arresting officer.  The Hearing Officer accepts these sworn written statements of the officer as a truthful and accurate account of why the officer stopped you, why he/she arrested and charged you for driving under the influence, and what the results of your chemical test were.  Unless you request a hearing within ten (10) calendar days of your arrest, your suspension action will be sustained on these documents alone.  The only way to ensure that the officer’s statements are a true and accurate account of what actually happened is to request an Administrative Per Se (APS) hearing.

 

The issues to be resolved at chemical test refusal and/or forced blood test hearings are:

1. The officer had reasonable cause to believe you had been driving a motor vehicle in violation of the California Drunk Driving Laws.
2. You were placed under lawful arrest supported by probable cause;
3. The person refused or failed to complete a chemical test or tests after being requested to do so by a peace officer; and;
4. Except for persons incapable of refusing, the person had been told that his/her privilege to drive would be suspended or revoked if he or she refused to submit to, and complete, the required testing.

If the department determines, by a preponderance of the evidence, that any of these facts are not proven, the department shall set aside the order of suspension or revocation and, provided the person is otherwise eligible, return or reissue the person’s driver’s license.

 

The issues to be resolved at blood alcohol concentrations of 0.08% or more hearings are:

1. The officer had reasonable cause to believe you had been driving a motor vehicle in violation of the California Drunk Driving Laws.
2. You were placed under lawful arrest supported by probable cause; and
3. You were driving with a blood alcohol concentration of 0.08% or more.

If the Department determines that any of these facts are not proven by a preponderance of the evidence, the department shall set aside the order of suspension or revocation and, provided that the person is otherwise eligible, return or reissue the person’s driver’s license.

 

If you fail to request a hearing, or lose your hearing, you will be subject to the following administrative penalties concerning your privilege to drive under the California Vehicle Code:

 

First Offense Blood Alcohol Concentration of 0.08% or More

 

• A four (4) month suspension that can be modified to a restriction after thirty (30) days of a hard suspension (no driving whatsoever).

 

First Offense Refusal or Forced Blood Test

 

• A one (1) year hard suspension (no driving whatsoever) that cannot be modified to a restriction for any reason.

 

Second Offense Blood Alcohol Concentration of 0.08% or More

 

• A one (1) year hard suspension (no driving whatsoever) that cannot be modified to a restriction under any circumstances.

 

Second Offense Refusal or Forced Blood Test

 

• A two (2) year hard suspension (no driving whatsoever) that cannot be modified to a restriction under any circumstances.

 

Third Offense Blood Alcohol Concentration of 0.08% or More

 

• A one (1) year hard suspension (no driving whatsoever) that cannot be modified to a restriction under any circumstances.

 

Third Offense Refusal or Forced Blood Test

 

• A three (3) year hard suspension (no driving whatsoever) that cannot be modified to a restriction under any circumstances.

 

	Under-21 With .01 Or Higher BAC	.08 Or Higher BAC	Refusal
No Prior Conviction Or Administrative Action Within 10 Years—Offense Date to Offense Date	One Year After 30 days, “Critical Need” Restriction Eligible SR-22	Four Months After 30 days, Restriction Eligible Unless New Arrest SR-22	One Year No Restriction Eligibility SR-22
One Prior Conviction and/or Administrative Action Within 10 Years—Offense Date to Offense Date	One Year No Restriction Eligibility SR-22	One Year No Restriction Eligibility SR-22	Two Years No Restriction Eligibility SR-22
Two or more Convictions and/or Administrative Actions Within 10 Years —Offense Date to Offense Date	One Year No Restriction Eligibility SR-22	One Year No Restriction Eligibility SR-22	Three Years No Restriction Eligibility SR-22

 

As the chart above illustrates, the penalties are harsh.  This is precisely why it is absolutely critical that you hire an attorney who knows the procedural and substantive law that applies to these hearings.  These hearings are difficult to win, but they can be won.  With so much riding on them, can you really afford not to hire an attorney who does not know how to win the hearing?

 

For more on Administrative Per Se Hearings, and the process and laws relating to it, please see our other blog entries under the California Department of Motor Vehicles’ Administrative Per Se (APS) Hearing heading.

 

For general information on California Drunk Driving Law, or representation for a DUI charge, please contact the Law Office of Barry Simons at: 949-497-1729 or visit our website at: www.duilawyerorangecounty.com.

 

DISCLAIMER: This website and blog are intended for use by those seeking general information relating to California drunk driving law.  The reader should be aware of the fact that California DUI laws and legal procedures such as those presented in this website are constantly changing.  Consequently, any statute, law, or procedure discussed herein may have been changed as a result of drunk driving laws, judicial court decisions, or California Department of Motor Vehicles (DMV) license suspension rules, regulations, policies or procedures enacted since similar information was posted on this website.

 

Moreover, the information provided here is not intended to be legal advice and should not be relied upon as such because there is no substitute for consulting with a qualified DUI Specialist.  Accordingly, the reader is strongly advised to consult with a DUI Specialist and anyone with a legal problem should immediately obtain legal representation and advice from an attorney with extensive experience handling California DUI Defense cases. 

 

The Law Office of Barry T. Simons assumes no liability whatsoever for any use of this website or blog as it is provided for informational purposes only and is not intended to be legal advice from this office or from any attorney working for this firm.  Rather, the information contained in this website and blog are intended to initiate further, subsequent discussions between the reader having a specific legal problem and a qualified DUI attorney.  All readers are informed that no attorney-client relationship is intended nor formed by any use of this website or blog and all readers are advised, in line with the Rules of the State Bar of California, that the only way to form an attorney-client relationship with The Law Office of Barry T. Simons is to execute a binding retainer agreement.

 

Now that the Department of Motor Vehicles is gaining even more power with the passage of new legislation, understanding just how the California Department of Motor Vehicles operates is critical in formulating the appropriate defense to one’s DUI case.  Because California Drunk Driving laws are constantly changing, it is important to hire a DUI Specialist to represent anyone facing a charge of driving under the influence, particularly when there is an administrative hearing before one of the California Department of Motor Vehicles’ Driver Safety Offices.

When one is arrested for driving under the influence, they will likely be required to appear before a DMV Hearing Officer for an Administrative Per Se Hearing.  During this hearing, the Hearing Officer will determine whether a suspension action will be imposed.  The suspension action could be as short as four months or as long as a few years.

Contrary to popular belief, DMV CASES CAN BE WON.  Many people think that if their blood or breath test resulted in a reading of 0.08% or more they will automatically lose their license.  This is not true.  There are numerous technical and scientific defenses that can be used, including the failure to strictly comply with the California Code of Regulations and other laws and regulations which can and do result in administrative suspension actions being set aside. 

THE CREATION OF THE APS LAWS & HEARING

The drunk driving driver’s license suspension laws were created by and through the Drunk Driving Prevention Act of 1988. The driving under the influence driver’s license suspension laws were created to expeditiously remove the licenses of those persons accused of driving under the influence.  The California Department of Motor Vehicles calls this process “Admin Per Se” or “Administrative Per Se” and it took effect on July 1, 1990 (Stats. 1989, Chap. 1460 (SB 1623)).

APPLICABLE STATUTES GOVERNING THE APS PROCESS

The California Department of Motor Vehicles’ “Admin Per Se” hearings and its processes are conducted according to the provisions of the Vehicle Code and the Government Code, which contain the “California Administrative Procedure Act”.  They are also conducted in accordance with the due process clauses of the federal and State of California constitutions, as well as the applicable case law that has developed as a result of the creation of this statutory scheme.

Vehicle Code § 14112, in conjunction with Government Code § 11400(b), states that anything not covered by the Vehicle Code is to be controlled by the Administrative Procedure Act, contained in Government Code §§ 11370 et seq.  Additionally, Government Code § 11410.10 requires the Administrative Procedure Act to apply to the “Admin Per Se” process.

The “Administrative Procedure Act” contains an “Administrative Adjudication Bill of Rights” in Government Code §§ 11425.10 et seq.  The Administrative Procedure Act also contains an “Administrative Adjudication Code of Ethics,” in Government Code §§ 11475 et seq.  In the Administrative Adjudication Bill of Rights, the Legislature codified the licensees’ rights under the Fourteenth (14^th) Amendment of the United States’ Constitution and concomitant clauses of the California Constitution.  Specifically, Government Code §11425.10, provides:

(a)   The governing procedure by which an agency conducts an adjudicative proceeding is subject to all of the following requirements:

(1)   The agency shall give the person to whom the agency action is directed notice and an opportunity to be heard, including the opportunity to present and rebut evidence.

Despite the due process protections afforded every licensee under both the “Administrative Adjudication Bill of Rights” and the “Administrative Adjudication Code of Ethics,” the Administrative Procedure Act exempts the California Department of Motor Vehicles adjudicative process from the “separation of functions” provisions of the Act contained in Government Code § 11425.30.  This exemption is contained in Vehicle Code § 14112(b) and it allows hearing officers to serve as both the proponent of the evidence, e.g., the prosectuor, and the trier of fact, e.g. the judge and jury.

In addition to this abnormality in the law, even though Government Code § 11512(a) requires that a hearing officer be an administrative law judge, Vehicle Code § 14104.2(a) specifically states that there is no requirement that a California Department of Motor Vehicles’ hearing officer be an attorney.  For that matter, the hearing officer need not have any formal legal training.

A licensee can find additional “Administrative Per Se” hearing procedures in Title 13, California Code of Regulations, §§ 115.01 through 115.09, and §§ 440.00 et seq.  These sections relate to the conduct of the “Administrative Per Se” hearings under Vehicle Code §§ 14100 et seq.  Furthermore, because an “Administrative Per Se” hearing is a civil proceeding, the Code of Civil Procedure controls anything not otherwise covered by either the California Vehicle Code or Government Code. See: Arnett v. Office of Administrative Hearings (1996) 49 CA4th 332, 342, 56 CR2d 774).

DUE PROCESS: NOTICE & OPPORTUNITY TO BE HEARD

Before any suspension and/or revocation action can be imposed, every licensee must be afforded proper “notice” and “an opportunity to be heard”.  This notice is provided by and through the Administrative Per Se Temporary Driver’s License Endorsement that is served on the licensee upon his/her release from jail by the law enforcement official or agency that made the arrest.

California Vehicle Code § 14100(c) requires the notice of suspension to feature the notice of the right to hearing in a “prominent” manner.  In addition, the driver must be served a non-English notice when required, such as when the person only speaks Spanish.  If, at the time the licensee is released from jail the arresting officer fails to serve the notice on the licensee, the California Department of Motor Vehicles may serve the notice by mail.

Pursuant to Vehicle Code § 13380, law enforcement agencies are required to send, within five (5) business days, the appropriate sections of the DS-367 Form to the Department of Motor Vehicles’ Driver Safety Office within the law enforcement agency’s jurisdiction.  The DS-367 contains: (1) the Officer’s Sworn Statement and, if the licensee refused a chemical test, the Chemical Test Admonition; and (2) a copy of the Administrative Per Se Suspension/Revocation Order and Temporary License Endorsement indicating that the person arrested was advised of the pending administrative suspension action.

The arresting officer also sends the Department copies of the following documents: (1) the breath test results; (2) the California Driver’s License of the licensee that the arresting officer confiscated at the time of arrest; (3) a copy of the citation, if one was issued; (4) a copy of the police report, and, if applicable, (5) a copy of the traffic collision report.  If a blood or urine test was taken, the officer must immediately have the sample forwarded to the appropriate forensic laboratory.  The forensic laboratory then forwards the results of the chemical tests to the same Department of Motor Vehicles Driver Safety Office within 15 calendar days of the date of the arrest.  These are currently being sent electronically and are admitted into evidence as part of the record unless either party objects to their admission on some evidentiary ground.

Unless there is a deficiency in the documents, these documents, and these documents alone, serve as the basis upon which the Hearing Officer will make his/her determination of whether a suspension action can be imposed.  Because it is the documents, and not the testimony of any law enforcement officer, that will result in the imposition of a suspension action, it is important to hire an attorney who specializes in these types of administrative per se hearings to determine whether the Department of Motor Vehicles’ documentary evidence is legally sufficient to sustain a suspension action.  If the Department of Motor Vehicles’ documentary evidence is not legally sufficient to sustain a suspension action, the matter must be set aside and the license must be returned the licensee.  This would mean that no suspension action would be imposed.

For more on Administrative Per Se Hearings, and the process and laws relating to it, please see our other blog entries under the California Department of Motor Vehicles’ Administrative Per Se (APS) Hearing heading.

For general information on California Drunk Driving Law, or representation for a DUI charge, please contact the Law Office of Barry Simons at: 949-497-1729 or visit our website at: www.duilawyerorangecounty.com.

DISCLAIMER: This website and blog are intended for use by those seeking general information relating to California drunk driving law.  The reader should be aware of the fact that California DUI laws and legal procedures such as those presented in this website are constantly changing.  Consequently, any statute, law, or procedure discussed herein may have been changed as a result of drunk driving laws, judicial court decisions, or California Department of Motor Vehicles (DMV) license suspension rules, regulations, policies or procedures enacted since similar information was posted on this website.

Moreover, the information provided here is not intended to be legal advice and should not be relied upon as such because there is no substitute for consulting with a qualified DUI Specialist.  Accordingly, the reader is strongly advised to consult with a DUI Specialist and anyone with a legal problem should immediately obtain legal representation and advice from an attorney with extensive experience handling California DUI Defense cases. 

The Law Office of Barry T. Simons assumes no liability whatsoever for any use of this website or blog as it is provided for informational purposes only and is not intended to be legal advice from this office or from any attorney working for this firm.  Rather, the information contained in this website and blog are intended to initiate further, subsequent discussions between the reader having a specific legal problem and a qualified DUI attorney.  All readers are informed that no attorney-client relationship is intended nor formed by any use of this website or blog and all readers are advised, in line with the Rules of the State Bar of California, that the only way to form an attorney-client relationship with The Law Office of Barry T. Simons is to execute a binding retainer agreement.