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Admin Per Se

DMV Hearings to Show .08 BAC

DUI convictions may also result to suspension or revocation of driving privilege. In such cases, administrative per se (admin per se or APS) shall apply. This refers to the process in which the DMV suspends or revokes the driving privilege of a person found to have driven with a .08 % BAC level or higher, or who refuses a chemical test after a DUI arrest, or is a minor found to have driven with a .01% BAC or higher.

After having been arrested or received a citation, for the offense described above, Admin per se hearings shall take place at DMV driver safety office. As a standard procedure, a motorist must request an Admin per se hearing within 10 days from his/her arrest. Failure to make such a request will result in automatic suspension of the offender’s driving privileges.

All hope is not lost when you have been arrested or cited for DUI, you may challenge the arrest or citation during an admin per se hearings. You may seek the assistance of an experienced attorney during the proceedings. If successful, the license suspension will be “set aside.”

It should be noted, however, that after the conclusion of proceedings, if DMV finds that the driver for driving while intoxicated, suspension of license can be for a period of four months for first time DUI conviction or as long as one year for second or subsequent conviction. This suspension of license is only one of the penalties which may be imposed upon conviction.

Admin per se DMV hearing

As already mentioned above, when a person is arrested for driving with a blood-alcohol level of .08% or higher, he will have to go through an admin per se hearing, a proceeding that takes place at the DMV (California Department of Motor Vehicles). Administrative per se hearing primarily allows the person arrested to challenge his arrest.

Admin per se hearing finds its origin from Section 23152(b) VC - referred to as California’s “per se” DUI law. With Section 23152(b) VC, motorists can be charged under this code for driving with an excessive BAC, regardless of whether they are actually intoxicated or whether their driving ability is actually impaired. BAC is measured by either a breath test or a blood test.

It should be noted, the person arrested must request for the conduct of Admin per Se hearing, otherwise, DMV’s suspension immediately becomes effective.[1]

Request for Admin Per Se Hearing

The conduct of Admin per se hearing is not automatic; the person arrested must take active steps to secure a schedule. Upon DUI arrests, the law enforcement officer confiscates a person’s driver’s license and issues him a “Notice of Suspension,” which has a phone number on it. It is important that the person arrested contact the phone number provided and schedule an admin per se hearing. If the driver has already hired a DUI attorney, then the attorney will usually contact the DMV to schedule the hearing.

The person arrested must actively request for an Admin per se hearing within 10 days from his arrest. It is crucial to make such a request because failure to do so within the 10-day period will result in automatic suspension of your driver’s license.

Issuance of 30-day Temporary License

After having successfully requested an administrative hearing within the 10-day period, the DMV will now issue a 30-day temporary driver’s license in favor of the person arrested. However, there are instances when the DMV is precluded from conducting Admin per se hearing within this 30-day period. In such cases, DMV will grant a “Stay of Suspension” following the 30 days. [2]

A Stay of Suspension essentially extends your original 30-day temporary driver’s license and allows you to temporarily enjoy the privilege of driving beyond the original 30-day period granted. This Stay Suspension grants unrestricted driving privileges until a hearing is conducted, and after the DMV makes a suspension decision.

Admin Per Se Proceedings

All administrative per se hearings are conducted at a DMV office before a DMV hearing officer. The hearing officer is a DMV employee, and not a judge or attorney.

Administrative per se allows the person arrested to challenge Department’s evidence against him or her. The ultimate goal of challenging the arrest is to have the license suspension set aside.

DMV carries the burden of proving that the officer had reasonable cause to believe the person was driving, and that his or her BAC exceeded the legal limit. In the course of the proceedings, the driver will have an opportunity to refute the Department’s evidence and show that is not the case.

Evidence presented by DMV usually constitutes a police report and the breath test, urine test, or blood test results. Given the zero-tolerance policy for drivers under the influence of alcohol and who are under 21 years of age, BAC limit applicable is lower. The same thing is true for commercial drivers of commercial vehicles and for people on DUI probation.

Proceedings in Admin per se hearings are similar to thatin California criminal trial. The DMV will be tasked to prove that the driver had committed a violation and that the arrest was proper. The driver, on the other hand, is likewise given the opportunity to refute the allegations against him.

If charged before DMV, drivers are entitled to the right to be represented by an attorney or other representative at his own expense. Though having an attorney is not required, hiring an experienced one will definitely afford you an advantage. Drivers will also have the right to review the evidence and to cross-examine the testimony of any witnesses for DMV, and to present evidence and witnesses to support his cause. Furthermore, drivers also have the right to testify on their own behalf.

After the hearing is concluded, the driver is entitled to receive a decision in writing. In the event that the decision is against the driver, he will have the right to request DMV to conduct an administrative review of the decision, as well as the right to appeal the decision to the Superior Court.

Hearing officers, after the proceedings, will either rule for or against the driver. If the hearing officer decides against the driver, order shall include suspension or revocation of license and its privileges. However, if the driver is successful in challenging the charges against him, then an order of suspension is set aside and all his driving privileges will be restored.

Penalties

Penalties imposed by the Department of Motor Vehicles varies which is usually dependent upon the number of times with which the driver has committed violation under vehicle code.

Penalties imposed by DMV include the following:

First per se DUI crime

Department can suspend a driver’s license for four months

Second per se DUI

DMV can order a one-year / 365-day suspension of the driver’s license

First per se DUI crime violators may apply fora restricted license after the first 30 days of admin per se suspension.

On the other hand, for those meted with the penalty of suspension for a year, California DMV usually may allow defendant to continue driving anywhere during their license suspension if they agree to install an ignition interlock device (IID) in their cars.[3]

Suspension of license may also be imposed by the Department of Motor Vehicles on the ground that the driver refuses to undergo a chemical test of his/her blood or breath. In such cases, suspension may be imposed for one year.

Penalties in APS hearing Separate from Criminal Case

Having been arrested for DUI, drivers may face two separate suspensions from two separate proceedings. Proceedings initiated by Department of Motor Vehicles (DMV) involve administrative suspension of a driver’s license following a DUI arrest. On the other hand, a court can order that a motorist’s license be suspended following a conviction for DUI.

In sum, California jurisdiction allows drivers to be punished twice for the same DUI charges i.e. administratively and criminally. DMV may impose penalties in the form of an administrative suspension period, and that the criminal judge imposes penalties following trial through fines, possibly jail, suspension of license, and other terms.


If you need assistance with a DUI charge, do not hesitate to contact us at ​​​​​​(626) 827-7222 to schedule your free consultation.


[1] California DMV website – Driving Under the Influence: Age 21 and Older (FFDL 35)

[2] California DMV website – Driving Under the Influence: Age 21 and Older (FFDL 35).

[3] California Vehicle Code 23575 V

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