What is an Administrative Per Se Hearing?
California DMV policy has been to conduct APS hearings and render final decisions as soon as possible following a driver’s arrest. Although there is some legal precedent for granting a continuation of a hearing date, DMV hearing officers are instructed to deny requests for continuation whenever possible; unless it is because the hearing officer is not prepared. If the DMV is not prepared, they can and will grant themselves continuances at will, but will regularly deny your request for any continuance.
Based on the fact that the DMV prefers to rush to judgment, your defense must be prepared quickly, thoroughly and professionally. There simply is no time to waste. Your representative must act quickly to schedule your hearing and secure your stay of suspension. Your representative must then begin working to collect police reports and evidence in preparation for your hearing.
Major Decisions for the APS Hearing
The DMV does possess “subpoena power” so; acting through the DMV, your representative may begin by issuing a subpoena to the arresting officer. Your representative may consider issuing subpoenas for advanced items of discovery such as calibration and maintenance logs on breath machines, calibration and maintenance records on blood testing equipment, training and certification records on blood technicians or crime lab analysts; training records on police officers; audio and video tapes from patrol cars and video tapes from businesses near where you were arrested. Decisions will have to be made to interview potential witnesses and to decide if they will testify on your behalf at the hearing. Critical decisions must be made regarding the possibility of you testifying at the hearing. Decisions must be made as to whether your team will use the testimony of their own expert witnesses. Legal research must be conducted to establish the basis for entering evidence into the hearing on your behalf or to object to the DMV’s evidence being used against you.
Decisions must be made as to whether or not an APS hearing should be conducted by telephone or “in-person.” CDA’s policy is to generally conduct all APS hearings “in-person,” however; there are some tactical and geographical considerations that come into play. DMV hearing officers prefer to conduct telephonic hearings for a variety of reasons. In some instances, a DMV hearing officer may be willing allow your representative to introduce evidence that might otherwise be rejected, if the hearing is conducted telephonically. Also, CDA is a company based in Southern California. If a client’s hearing must be conducted in a Northern California location, it may be more cost effective for the client to have the hearing conducted by telephone. In almost all instances however, a hearing should be conducted “in-person.”
The APS Hearing Officer.
The person sitting in judgment of you at your hearing is referred to as a DMV “Hearing Officer.” This person is not a judge, is not a commissioner, and is not an attorney. Most of these Hearing Officers are not college graduates and a few are not even high school graduates. More startling is that California Law permits a DMV Hearing Officer to act as the judge, prosecutor and jury. California is the only state which permits this abuse of law. Appearing at an APS hearing in any other state in the US will find you sitting in front of an Administrative Law Judge. In California, you are judged by a DMV employee who has attended a few seminars and who is subject to reassignment or termination if they rule in favor of drivers too often. Essentially, their job is to “sustain” the suspension and they aggressively resist attempts to overturn that suspension.
- A hearing officer is NOT A JUDGE.
- The Officer is allowed to make binding decisions.
- The officer’s job is to fight for your suspension.
The APS hearing is an extremely difficult and “one-sided” process. A series of Administrative Codes, Government Codes, California Vehicle Codes and Evidence Codes give the hearing officer tremendous latitude to ignore the law or to apply it in a fashion that supports their position. Contradictory elements of the various codes allow the hearing officer to permit evidence that bolsters their case while rejecting evidence that proves your innocence. This would never occur in a California Criminal Court but is standard operating procedure at an APS hearing.
You Are Guilty Unless You Defend Yourself at a APS Hearing.
Most startling is that at the APS hearing, the accused driver is “presumed” guilty until they, or their representative, prove their innocence or otherwise force the Hearing Officer to make a decision they would rather not make. In a courtroom setting, the accused is presumed innocent and the prosecutors have the burden of proving a person’s guilt. At the DMV, it is exactly the opposite; the burden of proof is on the driver.
We cannot stress enough how entirely one-sided the APS process is. Even with quality representation, many drivers lose their licenses to suspension or revocation. The point however, is clear. You are entitled to defend yourself and you should defend yourself. It is the only way of preventing a suspension of your license.
More About APS Hearing Procedures
Normally, the APS hearing is conducted in the hearing officer’s private office within the Driver Safety Office. This is their environment; it is where they feel most comfortable. It is where they feel they have the most control.
The DMV has an obligation to tape record all proceedings but your representative should come prepared to make recordings of their own. It is not uncommon for the DMV to later produce recordings that are either blank or of such horrible quality that they are useless. These tape recordings can become valuable pieces of evidence should the driver be forced to appeal a DMV decision. Additionally, evidence collected during the examination of the arresting officer may be used to impeach the officer in the separate criminal process.
As the hearing begins, the hearing officer will go on the record and establish the presence of those persons present. The hearing officer will then introduce the department’s evidence. Under direct examination, the hearing officer will introduce testimony from those witnesses favorable to the department’s position. The hearing officer will cross-examine any defense witnesses and potentially the driver, if present. The hearing officer will make and rule on objections and will make decisions regarding the admissibility of evidence.
The driver’s representative/advocate is permitted to introduce defense evidence. The representative will introduce and examine defense witnesses and cross examine the department’s witnesses. The representative is permitted to object to certain aspects of the department’s evidence and manner in which the hearing officer examines witnesses. As the hearing ends, the driver’s representative is permitted to make a closing statement to summarize the driver’s case. The representative must be adept enough to quote and refer to specific case law and Supreme Court decisions in support of the driver’s position.
In rare instances, the hearing officer will announce his/her decision at the conclusion of the APS hearing. In most instances, however, the hearing officer will take the matter “under advisement” and publish a decision later. Essentially, this is where the hearing officer determines who wins. The hearing officer is mandated to publish a decision within a specified time frame however; this is largely ignored by the department. When a decision is made, the hearing officer will prepare a notice that will be mailed to the driver and his representative.
If the hearing officer rules on behalf of the department, the suspension is “sustained” and the license suspension/revocation goes into effect. Conversely, if the hearing officer rules on behalf of the driver, the license suspension/revocation is “set aside” and the suspension is terminated. The driver is permitted to obtain a “duplicate” driver’s license.
It cannot be overstated how unfair and arbitrary these proceedings are. By their very nature, the Administrative Per Se hearing is designed to ignore due process. The DMV will not consider the negative impact a license suspension or revocation will have on a person’s life. The only way to prevent the suspension of your license is to protect yourself by selecting a representative who has the knowledge, experience and grit to do the job correctly. Quality representation significantly increases your chances of victory.