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What is a Late Request for an Administrative Per Se Hearing/DUI?
When I person has been arrested for DUI in the State of California, they have two entirely separate battles to fight. The accused person must make appearances in court in an attempt to prevent being convicted of a crime. Additionally, that same driver must also fight a battle with the California Department of Motor Vehicles (DMV) in an attempt to prevent the suspension of their driving privilege.
In order to protect their driving privilege, the accused driver must make contact with the DMV within the first 10 “calendar” days following the arrest to request an administrative hearing, commonly referred to as an Administrative Per Se (APS) Hearing. Known as the “10-Day Rule” or the “10-Day Window,” this is a very brief period of time following the trauma of an arrest for DUI. Failing to contact the DMV within this brief time frame virtually ensures that the driver license will be suspended or revoked.
As the king of government bureaucracies, the DMV will seek every possible means to deny a person their right to the Administrative Per Se Hearing. One of the most common reasons for denying a driver the right to an Administrative Per Se Hearing occurs when the accused driver fails to make appropriate contact with the DMV within the “10-Day window.”
California Vehicle Code (CVC) section 14103 reads, “Failure to respond to a notice given under this Chapter within 10 days is a waiver of the right to a hearing.”
It has been the DMV’s policy to flatly deny a driver’s request for an APS Hearing if the request is not made in a timely manner. In some instances, however, the driver may be able to present a valid argument for why timely contact was not made and argue that, despite the failure to act timely, an APS Hearing should still be granted.
CVC section 14103 goes on to additionally state, “…the department may, upon request of the person whose privilege of driving is in question, or at its own option, reopen the question…..”
This presents an opportunity for a driver, who can demonstrate a compelling reason for untimeliness, to make a Late Request for Administrative Per Se Hearing. If the late request is granted, the driver shall enjoy all of the same opportunities to defend themselves as if they had made their original request within the first 10-days following the arrest.
How Do I Make a Late Request for Administrative Per Se/DUI Hearing With the DMV?
As stated elsewhere in this site, the DMV will routinely deny a person’s request for an Administrative Per Se Hearing (APS), if the request is not made within the first 10 Calendar Days following their arrest.
Some of the most common reasons that a driver fails to contact the DMV within the required 10-Day Window are:
- When the driver is released from police custody, the arresting officer may fail to serve the driver with the pink-colored “Notice of Suspension” (DS-367). Without this form, most drivers have no clue they must contact the DMV quickly. In some instances the driver can prove they are still in possession of their picture driver license or that they were not properly served the “Notice of Suspension.”
- When the driver is served the “Notice of Suspension” in a language that he does not understand. California is a melting pot of different cultures and people. Many people cannot speak, read, or write English and so if they are served the “Notice of Suspension” in English, that person may be able to demonstrate that he could not reasonably have known about the requirement to contact the DMV within the first 10-Days.
- When the driver is held in police custody for a period of time exceeding the 10-Day Window. In some instances, the driver can prove that he was in-custody and did not have reasonable access to a telephone to make contact with the DMV.
- When a driver is incapacitated by injury or illness for a period of time exceeding the 10-Day Window. In some instances, a driver can prove that he was hospitalized or in some way incapacitated to a point that he could not reasonably contact the DMV within the required time frame.
- When a driver is called away for a valid emergency that prevents him from contacting the DMV within the required 10-Day Window. In some instances a driver can prove that he was called away for a valid, verifiable, emergency that prevented him from making reasonable contact.
- When a driver makes a valid attempt to contact the DMV, but the DMV’s phone system is too busy to accept the call. The pink colored “Notice of Suspension” only references one point of contact at the DMV. At the top of the “Notice of Suspension (DS-367) is a telephone number (916-657-0214). This telephone number is chronically busy and many drivers cannot get the call to connect. Some drivers may be able to demonstrate through phones records that they made repeated attempts to contact the DMV within the 10-Day Window and were unsuccessful.
- When a driver does contact the DMV within the 10-Day Window but is either dissuaded by a DMV employee from exercising his right to an APS Hearing, or is given incorrect information that causes the driver to forfeit his right to a hearing. The pink colored “Notice of Suspension” simply instruct drivers that they must make contact with the DMV. There is no specific direction as to what division of DMV must be contacted. In some instances, the driver can prove that he contacted a DMV field office within the 10-Day Window and was either turned away or was given incorrect information that stripped the driver of Due Process.
The secret to successfully filing a Late Request
The secret to successfully filing a Late Request for an Administrative Per Se/DUI Hearing at the DMV is being able to establish a valid and verifiable reason for missing the 10-Day Window. If a driver fails to read the pink-colored “Notice of Suspension” or simply forgets to make the contact, the DMV will find no compelling reason to grant the late request. If, on the other hand, a driver does present a valid, verifiable, reason for why the 10-Day Window was missed, the DMV will often grant a Late Request for an Administrative Per Se Hearing.
The Late Request for an Administrative Per Se/DUI Hearing at the DMV must be made in writing and addressed to the Office Manager of the Driver Safety Office holding jurisdiction over the matter. The Late Request for an Administrative Per Se Hearing at the DMV must be clear, concise, and articulate. The Late Request must also include any documentary evidence (i.e. Hospital Records, Jail Release Records, Cell Phone Records, etc.) which establish the argument.
Make no mistake; the Driver Safety Office Manager will initially view any Late Request for an Administrative Per Se Hearing with great suspicion. The Manager will first evaluate the request to see if there is any way to reject it. However, if you have missed your 10-Day Window with the DMV following an arrest for DUI, and if you have a good reason for doing so, you may still be able to recover your right to an Administrative Hearing.
Because a Late Request for an Administrative Per Se Hearing is looked upon with such suspicion, it is best to seek the assistance of a DMV Defense Expert in preparing the Request.
Call to File Your Late Request for an Administrative Per Se/DUI Hearing with the DMV.
Here at CDA, we have been representing drivers at Administrative Per Se Hearings for years. We have encountered nearly every conceivable reason why a driver has missed their 10-Day Window with the DMV. We have perfected the art of filing the Late Request for Administrative Per Se Hearing. We know how to construct the request and how to back it up with solid evidence. The DMV Defense Experts from CDA also enjoy a reputation for honesty and thoroughness with the Driver Safety Managers. When we make a valid Late Request for an Administrative Per Se Hearing, we put the DMV in a position of having to grant the request or to defend their decision if they deny the request.
If you’ve missed your 10-Day Window with the DMV, call us immediately. We are ready to begin fighting to recover your right to an Administrative Hearing.