If you were arrested for DUI in California, you may already know that the arrest can lead to a separate DMV proceeding involving your driving privilege. What many drivers do not understand is what actually happens once they request an Administrative Per Se hearing.
An Administrative Per Se hearing is not simply a formality. It is the administrative process through which the California Department of Motor Vehicles (DMV) determines whether the suspension or revocation of your driving privilege should remain in effect.
The hearing focuses on specific legal and factual questions arising from the DUI arrest. The DMV reviews evidence, considers the issues that apply to the particular type of APS action, and ultimately decides whether the administrative action should be sustained or set aside.
Because an APS hearing is separate from the criminal DUI case, knowing how the hearing works can help drivers understand what to expect and why the DMV process deserves immediate attention.
What Is the Purpose of an APS Hearing?
The purpose of an APS hearing is to give a driver an opportunity to challenge a DMV suspension or revocation resulting from a qualifying DUI-related incident.
The DMV is not conducting a criminal trial. It is determining whether the requirements for the administrative action have been established.
In practical terms, the hearing allows the driver to contest the DMV’s case rather than simply accepting the proposed license action without review.
The specific questions considered depend on the circumstances.
For example, an APS case based on a chemical-test result may involve questions concerning the driver’s operation of the vehicle, the officer’s reasonable cause, the lawfulness of the arrest, and the driver’s BAC.
A case involving an alleged chemical-test refusal can involve additional questions, including whether the driver was properly advised about the consequences of refusing or failing to complete the required test.
How Do You Request an APS Hearing?
The first step is requesting the hearing within the applicable deadline.
For a DUI-related APS action, California DMV generally gives a driver 10 days from receiving the suspension or revocation order to request an administrative hearing.
This deadline is separate from the date of the criminal court appearance.
For example, a person might receive a DUI court date several weeks after the arrest. That does not mean the driver has several weeks to decide whether to request an APS hearing.
The DMV deadline should be treated separately and reviewed immediately after receiving the suspension or revocation paperwork.
A late request can affect the driver’s ability to challenge the administrative action through the hearing process.
What Happens After You Request the Hearing?
After a timely hearing request, the DMV reviews the administrative action and the evidence associated with it.
The DMV may conduct an administrative review before the scheduled hearing. If the available evidence does not establish the basis for the action, the DMV may set it aside.
If the matter proceeds to a hearing, the driver has an opportunity to address the evidence and legal issues relevant to the suspension or revocation.
The hearing may be conducted by telephone or video, and an in-person hearing may be available depending on the circumstances and applicable DMV procedures.
The exact procedure can vary depending on the type of APS action and the issues involved.
What Issues Does the DMV Decide at an APS Hearing?
An APS hearing is limited to the issues the DMV is legally authorized to consider.
The issues can differ depending on whether the case involves a chemical-test result or an alleged refusal.
APS Cases Involving a Chemical-Test Result
When the administrative action is based on a qualifying chemical-test result, the DMV may consider questions such as:
- Did the officer have reasonable cause to believe the driver was operating a vehicle in violation of applicable DUI laws?
- Was the driver lawfully arrested, or was the driver subject to applicable DUI probation rules?
- Was the person driving a motor vehicle?
- Did the driver have a BAC at or above the applicable legal threshold?
These questions are important because the DMV’s decision is not based solely on the existence of a BAC number.
The surrounding circumstances and the evidence supporting each required element can matter.
APS Cases Involving an Alleged Refusal
Refusal cases involve different considerations.
The DMV may consider:
- Whether the officer had reasonable cause to believe the driver was operating a vehicle while violating applicable DUI laws.
- Whether the driver was lawfully arrested or otherwise subject to the applicable testing requirements.
- Whether the driver was properly advised of the consequences of refusing or failing to complete the required chemical test.
- Whether the driver actually refused or failed to complete the required test.
This means the circumstances surrounding the alleged refusal can become particularly important.
For example, there may be questions about what the officer requested, what advisement was given, and what the driver did in response.
What Evidence Is Used in an APS Hearing?
The DMV can consider documentary evidence and other evidence relevant to the issues within the scope of the APS proceeding.
Depending on the case, the evidence may include:
- The arresting officer’s reports.
- The Order of Suspension or Revocation.
- Chemical-test results.
- Information concerning the DUI investigation.
- Records relating to the driver’s license.
- Evidence concerning the circumstances of the chemical test.
- Evidence concerning an alleged refusal.
- Other materials relevant to the administrative issues being decided.
The evidence in an APS hearing is not necessarily identical to the evidence or procedure used in the criminal DUI case.
This distinction is important because a driver should not assume that the DMV hearing simply waits for the criminal court to determine what happened.
Can You Challenge the Officer’s Report?
An officer’s report can be important evidence in an APS case, but it is not necessarily the end of the analysis.
The DMV hearing process allows the driver to address evidence supporting the suspension or revocation.
Depending on the circumstances, relevant questions may include whether the report adequately establishes the facts required for the administrative action or whether other evidence creates a dispute concerning those facts.
For example, if the DMV relies on an officer’s report to establish a particular event, other evidence relevant to that event may become important during the hearing.
The significance of any particular piece of evidence depends on the facts and legal issues in the individual proceeding.
Does the DMV Hearing Examine Whether You Were “Really Drunk”?
Not necessarily in the way a driver might expect.
An APS hearing is not a general determination of whether the driver “looked drunk” or whether the driver should be punished for drinking.
The DMV focuses on the specific statutory issues applicable to the administrative action.
In a BAC-based case, for example, the chemical-test result and the circumstances surrounding the arrest and testing can be central.
In a refusal case, the circumstances surrounding the required chemical test and the alleged refusal can be particularly important.
This is one reason an APS hearing should not be viewed as simply another version of the criminal DUI trial.
Can You Present Evidence at an APS Hearing?
A driver participating in an APS hearing generally has an opportunity to present relevant evidence and address the evidence supporting the DMV action.
Depending on the circumstances, this can include documentary evidence, testimony, and witnesses.
The evidence must be relevant to the issues the DMV is authorized to decide.
Not every issue that might arise in a criminal DUI defense belongs in an APS hearing.
For example, arguments concerning criminal punishment or potential jail consequences are not the purpose of the DMV proceeding.
The focus remains on the administrative action affecting the driving privilege.
Can You Have an Attorney at an APS Hearing?
A driver is not required to have an attorney for an APS hearing.
However, a driver may choose to be represented by an attorney.
APS proceedings involve specific administrative rules, evidence, deadlines, and legal issues. A defense attorney familiar with California DUI and DMV proceedings can help a driver understand the nature of the proceeding and how the available evidence relates to the issues before the DMV.
Whether legal representation is appropriate is an individual decision.
Does the DMV Hearing Officer Decide Whether You Are Guilty?
No.
The DMV hearing officer does not determine whether a driver is criminally guilty of DUI.
The hearing officer’s role is to determine whether the DMV’s administrative action should be sustained or set aside based on the evidence and applicable requirements.
This distinction should remain clear throughout the process.
A driver may be challenging the DMV’s action while simultaneously defending a criminal DUI charge in court, but those proceedings have different purposes.
What Are the Possible Outcomes of an APS Hearing?
There are generally two important outcomes.
The DMV Sets Aside the Action
If the DMV determines that the requirements for the administrative suspension or revocation have not been established, the action may be set aside.
In that situation, the particular APS action does not remain in effect.
However, setting aside an APS action does not automatically resolve a separate criminal DUI case or every other possible DMV action.
The DMV Sustains the Action
If the DMV determines that the requirements for the administrative action have been established, the suspension or revocation remains in effect according to the applicable terms.
The driver may then need to comply with any requirements associated with the suspension or applicable driving privilege.
The exact consequences depend on the type of APS action and the driver’s circumstances.
What If the APS Hearing Is Delayed?
In some circumstances, the DMV may not be able to conduct the hearing before the suspension would otherwise take effect.
California DMV procedures provide for a stay of the administrative action in qualifying circumstances when the hearing cannot be completed before the suspension’s effective date.
A stay can delay the effective date while the hearing process proceeds.
This does not mean that every hearing request automatically stops a suspension. The applicable rules and circumstances determine whether a stay applies.
Drivers should therefore pay attention to the DMV’s confirmation and instructions after requesting a hearing.
What Happens After the DMV Makes Its Decision?
The DMV’s decision should be reviewed carefully because it explains the outcome of the administrative proceeding and any continuing action affecting the driving privilege.
If the action is sustained, the driver should determine:
- When the suspension or revocation becomes effective.
- How long it will remain in effect.
- Whether additional DMV requirements apply.
- Whether another suspension, revocation, or restriction affects the driving privilege.
- Whether any further administrative review or judicial remedy may be available.
If the action is set aside, the driver should still verify their current driving status with the DMV, particularly if other license actions may exist.
Can You Challenge an Unfavorable APS Decision?
A driver may have additional review or judicial options after an unfavorable DMV decision, depending on the circumstances and applicable deadlines.
These procedures are separate from the initial hearing request and can involve their own requirements.
Because deadlines can be short, a driver who receives an unfavorable APS decision should review the decision promptly rather than assuming there is unlimited time to challenge it.
Why Is the APS Hearing Different From the Criminal DUI Case?
The difference can be summarized simply:
The criminal case concerns the DUI charge. The APS hearing concerns the DMV’s administrative action against the driving privilege.
The two proceedings may involve overlapping evidence, but they are not interchangeable.
For example, the criminal case may involve questions about criminal liability, potential penalties, and constitutional issues. The APS hearing focuses on the specific administrative questions authorized by California’s DMV laws.
This is why a driver should not assume that waiting for the criminal case to end will resolve the DMV proceeding.
Common Mistakes Drivers Make With APS Hearings
Several mistakes can make the DMV process more difficult.
Waiting for the Criminal Court Date
The DMV deadline does not simply disappear because the criminal case has not started or is still pending.
Assuming the DMV Will Automatically Follow the Criminal Case
The DMV and criminal court are separate authorities. Their proceedings can produce different outcomes.
Ignoring the Suspension Paperwork
The documents provided after the arrest contain important information about the administrative action, deadlines, and driving status.
Assuming Every DUI Arrest Has the Same DMV Consequences
The applicable DMV consequences can depend on factors such as prior history, chemical-test results, alleged refusal, probation status, age, and other circumstances.
Assuming a Hearing Guarantees a License Reinstatement
Requesting a hearing creates an opportunity to challenge the action. It does not guarantee that the DMV will set it aside.
What Should You Bring to an APS Hearing?
The documents relevant to an APS hearing depend on the circumstances of the case.
A driver should generally keep organized copies of all paperwork received in connection with the DUI arrest and DMV action, including:
- The Order of Suspension or Revocation.
- Temporary license documents.
- DUI citation or related paperwork.
- DMV correspondence.
- Chemical-test documentation provided to the driver.
- Other documents received concerning the arrest or license.
Keeping these materials organized can make it easier to understand the administrative case and identify important dates.
Frequently Asked Questions
How quickly should I request an APS hearing?
As soon as possible. For a DUI-related APS action, the DMV generally provides 10 days from receipt of the suspension or revocation order to request a hearing.
Is an APS hearing held in criminal court?
No. An APS hearing is a DMV administrative proceeding, not a criminal court hearing.
Can an APS hearing determine whether I am guilty of DUI?
No. The DMV hearing officer determines whether the administrative license action should be sustained or set aside. Criminal guilt is determined through the separate court proceeding.
Can I present evidence at an APS hearing?
Generally, yes. Drivers have an opportunity to address relevant evidence and present evidence within the scope of the administrative proceeding.
Can an attorney represent me at an APS hearing?
Yes. Although an attorney is not required, a driver may choose to have legal representation.
What happens if the DMV sets aside my APS suspension?
If the DMV sets aside the particular APS action, that administrative suspension or revocation does not remain in effect. However, other DMV actions or the separate criminal DUI case may still exist.
What happens if the DMV sustains my APS suspension?
The administrative suspension or revocation remains in effect according to the applicable terms, subject to any further rights or remedies that may be available.
Does requesting an APS hearing automatically cancel the suspension?
Not necessarily. The effect of requesting a hearing depends on the circumstances and applicable DMV procedures. Drivers should carefully review the DMV’s instructions regarding the hearing and any stay of the action.
Final Takeaway
An Administrative Per Se hearing is more than a routine DMV appointment. It is a formal opportunity to challenge a California DUI-related license suspension or revocation based on the evidence and issues the DMV is authorized to consider.
The most important things to remember are:
- The APS hearing is separate from your criminal DUI case.
- A DUI-related APS hearing generally must be requested within 10 days of receiving the suspension or revocation order.
- The DMV considers specific legal and factual issues rather than simply deciding whether you should be punished for DUI.
- The issues differ between BAC-based cases and alleged chemical-test refusal cases.
- Evidence such as officer reports and chemical-test records can be important.
- A driver may have an opportunity to present relevant evidence and challenge the administrative action.
- An APS hearing can result in the DMV sustaining or setting aside the action.
- An APS hearing does not determine criminal guilt or innocence.
- Additional review options may exist after an unfavorable decision, but they can involve separate deadlines and requirements.
Contact Southwest Legal
If you have received an APS suspension or revocation after a California DUI arrest, don’t let an important DMV deadline pass while waiting for your criminal case to move forward.
Southwest Legal can help you understand what the APS hearing involves, what the DMV is evaluating, and what steps may be available in your situation. The sooner you understand the process, the sooner you can make informed decisions about your driving privilege.
Contact us today for a free consultation and get a clearer understanding of your APS hearing, your deadlines, and your next steps.
Disclaimer: This article is for general informational purposes only and does not constitute legal advice or create an attorney-client relationship unless and until the firm and client enter into an agreement for legal services. Laws may change, and legal outcomes depend on the specific facts of each case. Consult a qualified attorney for advice regarding your situation.