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Administrative Per Se (APS) Hearing at the DMV

In 1990, California joined 28 other states by enacting a law aimed at imposing immediate sanctions on any driver who is found to be driving a motor vehicle with a blood alcohol concentration of .08% or greater. Known as the Administrative Per Se Law, this statue mandates the immediate suspension of a person’s driver license based solely upon a law enforcement officer’s belief that a person was driving with a blood alcohol concentration above the legal limit.

Acting as an agent of the Department of Motor Vehicles (DMV), the arresting officer will seize the California driver license from the arrested driver, which effectively suspends the license “on the spot.”At that moment, the administrative process of suspending or revoking the person’s driving privilege begins. In order for that driver to stop or reverse the intended suspension/revocation of their driving privilege requires that they schedule, conduct, and win a legal proceeding known as an Administrative Per Se Hearing at the DMV.

Commonly referred to as an APS Hearing, this is a complicated, contradictory, and often frustrating proceeding that is nearly impossible for the average driver to navigate. The only reasonable hope of winning an APS Hearing is for the affected driver to be represented by a DMV Defense Expert.

An APS Hearing at the DMV is a full-blown legal proceeding where evidence is introduced, objections are made, witnesses may testify, experts may offer expert analysis, and legal arguments are waged.   Winning an APS Hearing at the DMV requires a commanding knowledge of the California Vehicle Code, the California Evidence Code, the California Penal Code, the California Code of Procedures and Administrative Law. It also requires the knowledge and fortitude to do battle with the DMV. The DMV Defense Experts from California Drivers Advocates (CDA) have years of experience in the field and are fully versed in all the laws and codes that control an APS Hearing at the DMV.

How Do I Schedule an Administrative Per Se Hearing at the DMV?

As stated above, the Administrative Per Se process begins with a police officer making a DUI arrest and immediately seizing the accused person’s driver license. In order to allow for the appearance of “Due Process,” the Administrative Per Se Law requires the arresting officer to issue the driver a DMV form DS-367 at the time of arrest.

The DS-367 is normally a pink colored document that is entitled, “AGE 21 AND OLDER- ADMINISTRATIVE PER SE SUSPENSION/REVOCATION ORDER AND TEMPORARY DRIVER LICENSE.”   This is a horribly constructed document that is confusing and vague. Examined closely, the document provides three critical pieces of information:

  • The driver is informed that the DMV is intent on suspending their driving privilege.
  • The driver is informed they may continue to drive, on a temporary basis, for 30 days.
  • The driver is informed that if they wish to contest the suspension of their driver license, they must be in contact with the DMV within 10 days to schedule a hearing.

 The DS-367 does not make clear that the period of time during which a driver must request their APS Hearing is 10 CALENDAR days. Not weekdays. 10 CALENDAR days………… meaning that weekends and holidays are all part of that “10-day Window.” If a driver fails to contact the DMV within the prescribed 10-day window, their right to an APS Hearing is forfeit and the driver license will be suspended.

 There can be any number of reasons why a person may fail to contact the DMV within the 10-day window. There are even many instances where the arresting officer fails to provide the driver with the DS-367 and, therefore, the driver doesn’t even know they must act within 10 days. The DMV is not interested in excuses. If a driver fails to make the required contact within the mandated time frame, it is unlikely the DMV will grant an APS Hearing.

 The DS-367 also does not clearly inform the driver what part of the DMV is to be contacted. The only point of reference on the DS-367 is a telephone number that rings to an automated line in Sacramento. This number is incessantly busy, and even if you do get through, you’ll simply learn that you’ve contacted to wrong place anyway.

 When seeking to set up an APS Hearing at the DMV, the driver must contact the Driver Safety Office closest to the location of arrest. The Driver Safety Office is not a local DMV Field Office where one goes to register their car. The Driver Safety Office is the DMV version of a court-house where a variety of administrative hearings are conducted to suspend or revoke the driving privileges of California drivers. The Driver Safety Offices are large “regional” offices scattered throughout the state.

 So, as will be repeatedly stated in this site, when an accused driver has been arrested for DUI, and their driver license has been seized by a law enforcement officer, the Administrative Per Se process begins automatically. In order to protect their driving privilege, the effected driver must make contact with the appropriate Driver Safety Office near the point of arrest AND that contact must be made within 10 CALENDAR DAYS OF THE ARREST!

 Contacting the Driver Safety Office can be as simple as a telephone call placed to the correct location. Here’s the problem. The Driver Safety Office does not like conducting APS Hearings and so they will find every opportunity to dissuade a driver from setting a hearing. There are even instances where a DMV employee will deny that a driver made contact with them, when in fact they did. The APS Hearing process is fraught with hurdles and pitfalls that can often ruin any chance of victory. It is always best to make contact with the Driver Safety Office in at least two forms. Making a request by facsimile transmission and then following up with a telephone call is one example.

For many California drivers, the preservation of their driving privilege can literally mean the difference between working or filing for unemployment benefits. While scheduling an APS Hearing at the DMV may seem like a simple task, it can go very wrong, very easily. Don’t leave anything to chance. Call the DMV Defense Experts at CDA immediately. We will contact the DMV on your behalf and ensure that it is done correctly.

What is the Outcome of an APS Hearing at the DMV?

As stated above, an APS Hearing at the DMV is similar to a “mini trial.” Evidence is presented, witnesses testify, and arguments are waged. Unlike a criminal court proceeding, however, at the conclusion of an APS Hearing at the DMV, there are only two possible outcomes. The driver either wins or loses……….. period! There is no middle ground.

At an APS Hearing, there is no negotiating. There is no opportunity to plea bargain or to get the case reduced and the DMV is not interested in how a license suspension will affect the driver.

If a driver wins their APS Hearing at the DMV, they will receive a written decision announcing that the DMV Hearing Officer has ordered a “Set Aside.” In the world of the DMV, the words “Set Aside” are magical words that mean the driver has won. With a Set Aside, the driving privilege is fully reinstated and there are no associated penalties.

If a driver loses their APS Hearing at the DMV, they receive a written decision that re-imposes the license suspension that began at the time of arrest. When a driver loses an APS Hearing at the DMV, it will result in some term of suspension or revocation, but it also requires attendance at a DUI School, the requirement to file an SR-22 Insurance Form, and the payment of a re-issuance fee.

Remember, you want your decision to announce that the DMV Hearing Officer has “Set Aside” the suspension of your driver license. It is nearly impossible for a driver to master the knowledge and techniques to win a Set Aside by themselves. Call the DMV Defense Experts at CDA. We’re ready to begin fighting for your Set Aside.

Call CDA to Win Your APS Hearing.

The DMV Defense Experts at CDA have been fighting and winning APS Hearings at the DMV for years. CDA’s experts have won the coveted “Set Aside” on APS Hearings when the driver truly felt it impossible. When you enter an APS Hearing at the DMV, the DMV enjoys complete control and they presume your guilt. They believe the suspension of your driving privilege is warranted and they challenge you to show them why they’re wrong. It is amazing how quickly the DMV’s attitude changes when they discover you are protected by a DMV Defense Team with the knowledge and experience to handle an APS Hearing correctly.

Remember, you only have 10 Calendar days to make contact with the DMV following a DUI arrest. Don’t delay, call us now. We’re ready to begin working for you.

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