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.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Number of Young Women Drivers Involved in DUI Traffic Collisions Doubles

According to an article published in the Orange County Register on Wednesday, December 19, 2008, with statistics being provided by the Automobile Club of Southern California, the number of young women drivers involved in driving under the influence (DUI) crashes has doubled.

According to the article, “young women are closing the gender gap in the number of injuries and deaths resulting from driving under the influence.”  The article reports that the Automobile Club of Southern California found that between 1998 and 2007, the number of women drivers aged 21-to-24 involved in alcohol-related traffic collisions soared by 116%.  For men, the number jumped 39% in the same period.

New Vehicle Code § 23154—Zero Tolerance for DUI Probationers

You thought the DUI laws could not get any worse, but guess what, the California Legislature has found a new way to punish anyone who drinks and drives while on probation for a DUI conviction.  Perhaps it is a way to raise additional revenue, but in the end, everyone pays.

It is already a mandatory condition of probation that a probationer not drive with a measurable amount of alcohol (0.01% or more) in his or her system pursuant to California Vehicle Code 23600(b)(2).  Moreover, driving with a blood alcohol concentration of 0.04% or more is supposed to be a mandatory probation revocation if it gets reported to the Court pursuant to California Vehicle Code 23600(d).  Now a new law will subject probationers to a zero-tolerance law coming into effect on January 1, 2009. 

This new zero tolerance law will trigger a driver’s license suspension in addition to a probation violation.   If the probationer submits to a preliminary alcohol screening test or other chemical test that yields a result of 0.01% or more, the probationer’s driver’s license will be suspended for one year with no opportunity for a restricted and/or provisional driver’s license.  Of course, the suspension cannot be imposed without first having an administrative hearing before the Department of Motor Vehicles.  If the probationer refused to, or failed to complete, either a preliminary alcohol screening test or other chemical test, the probationer’s driver’s license will be suspended for two-to-three years depending on whether the probationer has any prior convictions.  Again, there would be no opportunity for a restricted and/or provisional driver’s license, and, of course, the suspension or revocation cannot be imposed without first having an administrative hearing before the Department of Motor Vehicles.  This is why a probationer charged with this offense should contact a DUI Specialist immediately to represent him/her at the hearing.

The new law will not retroactively change the probation conditions; it will simply expose probationers to enhanced penalties if they commit the new offense and compel them to submit to a preliminary alcohol screening test or other chemical test if the officer has probable cause to believe that the probationer had been driving in violation of the zero-tolerance law applicable to them by way of the new statute.

New California Vehicle Code § 23154 states:

(a) It is unlawful for a person who is on probation for a violation of Vehicle Code Section 23152 or 23153 to operate a motor vehicle at any time with a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test or other chemical test.

(b) A person may be found to be in violation of subdivision (a) if the person was, at the time of driving, on probation for a violation of Section 23152 or 23153, and the trier of fact finds that the person had consumed an alcoholic beverage and was driving a vehicle with a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test or other chemical test.

(c) (1) A person who is on probation for a violation of Section 23152 or 23153 who drives a motor vehicle is deemed to have given his or her consent to a preliminary alcohol screening test or other chemical test for the purpose of determining the presence of alcohol in the person, if lawfully detained for an alleged violation of subdivision (a).

(2) The testing shall be incidental to a lawful detention and administered at the direction of a peace officer having reasonable cause to believe the person is driving a motor vehicle in violation of subdivision (a).

(3) The person shall be told that his or her failure to submit to, or the failure to complete, a preliminary alcohol screening test or other chemical test as requested will result in the suspension or revocation of the person’s privilege to operate a motor vehicle for a period of one year to three years, as provided in Section 13353.1.

A refusal to submit to the preliminary alcohol screening test or other chemical test can also be punished administratively pursuant to Vehicle Code § 13389, which states:

(a) If a peace officer lawfully detains a person previously convicted of Section 23152 or 23153 who is driving a motor vehicle, while the person is on probation for a violation of Section 23152 or 23153, and the officer has reasonable cause to believe that the person is in violation of Section 23154, the officer shall request that the person take a preliminary alcohol screening test to determine the presence of alcohol in the person, if a preliminary alcohol screening test device is immediately available. If a preliminary alcohol screening test device is not immediately available, the officer may request the person to submit to chemical testing of his or her blood, breath, or urine, conducted pursuant to Vehicle Code Section 23612.

(b) If the person refuses to take, or fails to complete, the preliminary alcohol screening test or refuses to take or fails to complete a chemical test if a preliminary alcohol device is not immediately available, or if the person takes the preliminary alcohol screening test and that test reveals a blood-alcohol concentration of 0.01 percent or greater, the officer shall proceed as follows:

(1) The officer, acting on behalf of the department, shall serve the person with a notice of an order of suspension of the person’s driving privilege.

(2)(A) The officer shall take possession of any driver’s license issued by this state that 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.

(B) The temporary driver’s license shall be an endorsement on the notice of the order of suspension and shall be valid for 30 days from the date of issuance, or until receipt of the order of suspension from the department, whichever occurs first.

(3)(A) The officer shall immediately forward a copy of the completed notice of order of suspension form, and any driver’s license taken into possession under paragraph (2), with the report required by Section 13380, to the department.

(B) For the purposes of subparagraph (A), “immediately” means on or before the end of the fifth ordinary business day after the notice of order of suspension was served.

(c) For the purposes of this section, a preliminary alcohol screening test device is an instrument designed and used to measure the presence of alcohol in a person based on a breath sample.

Vehicle Code § 13353.1 has been amended to assist the California Department of Motor Vehicles in taking the licenses of probationers for these new law violations.  New Vehicle Code § 13353.1 states:

(a) If a person refuses an officer’s request to submit to, or fails to complete, a preliminary alcohol screening test pursuant to Section 13388 or 13389, upon the receipt of the officer’s sworn statement, submitted pursuant to Section 13380, that the officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23136 or 23154, and that the person had refused to submit to, or did not complete, the test after being requested by the officer, the department shall do one of the following:

(1) Suspend the person’s privilege to operate a motor vehicle for a period of one year.

(2) Revoke the person’s privilege to operate a motor vehicle for a period of two years if the refusal occurred within 10 years of either of the following:

(A) A separate violation of subdivision (a) of Section 23136, that resulted in a finding of a violation, or a separate violation, that resulted in a conviction, of Section 23103, as specified in Section 23103.5, of Section 23140, 23152, or 23153, or of Section 191.5 or subdivision (a) of Section 192.5 of the Penal Code.

(B) A suspension or revocation of the person’s privilege to operate a motor vehicle if that action was taken pursuant to this section or Section 13353 or 13353.2 for an offense that occurred on a separate occasion.

(3) Revoke the person’s privilege to operate a motor vehicle for a period of three years if the refusal occurred within 10 years of any of the following:

(A) Two or more separate violations of subdivision (a) of Section 23136, that resulted in findings of violations, or two or more separate violations, that resulted in convictions, of Section 23103, as specified in Section 23103.5, of Section 23140, 23152, or 23153, or of Section 191.5 or subdivision (a) of Section 192.5 of the Penal Code, or any combination thereof.

(B) Two or more suspensions or revocations of the person’s privilege to operate a motor vehicle if those actions were taken pursuant to this section, or Section 13353 or 13353.2, for offenses that occurred on separate occasions.

(C) Any combination of two or more of the convictions or administrative suspensions or revocations described in subparagraph (A) or (B).

(b) For the purposes of this section, a conviction of an offense in any state, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or Canada that, if committed in this state, would be a violation of Section 23103, as specified in Section 23103.5, or Section 23140, 23152, or 23153, or Section 191.5 or subdivision (a) of Section 192.5 of the Penal Code, is a conviction of that particular section of the Vehicle or Penal Code.

(c) The notice of the order of suspension or revocation under this section shall be served on the person by the peace officer pursuant to Section 13388 and shall not become effective until 30 days after the person is served with that notice. The notice of the order of suspension or revocation shall be on a form provided by the department. If the notice of the order of suspension or revocation has not been served by the peace officer pursuant to Section 13388, the department immediately shall notify the person in writing of the action taken. The peace officer who serves the notice, or the department, if applicable, also shall provide, if the officer or department, as the case may be, determines that it is necessary to do so, the person with the appropriate non-English notice developed pursuant to subdivision (d) of Section 14100.

(d) Upon the receipt of the officer’s sworn statement, the department shall review the record. For the purposes of this section, the scope of the administrative review shall cover all of the following issues:

(1) Whether the peace officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23136.

(2) Whether the person was lawfully detained.

(3) Whether the person refused to submit to, or did not complete, the test after being requested to do so by a peace officer.

(e) The person may request an administrative hearing pursuant to Section 13558. Except as provided in subdivision (e) of Section 13558, the request for an administrative hearing does not stay the order of suspension or revocation.