Driving is such a fundamental part of our daily activity that many people have no idea how much time they spend behind the wheel until their license is suspended or revoked. If you’re arrested for driving under the influence (DUI), you must take immediate action to protect your ability to do simple things like commute to work, take your kids to school or drive to the grocery store.

When you’re arrested for DUI or driving while intoxicated (DWI), you’re actually facing two DUI proceedings: (1) a DMV procedural hearing (also called an administrative per se or APS hearing) regarding the suspension or revocation of your driver’s license, and (2) the criminal prosecution. It will come as a shock to most people that these hearings lack most of the constitutional protections and safeguards of a criminal trial—including the fact that you have no right to a public defender, there’s a lower standard of proof, and there’s no protection against self-incrimination.

If you fail to submit a timely request for a APS hearing, the Department of Motor Vehicles will automatically suspend your driver’s license for a period of no less than four months and as much as one year. Additionally, you automatically waive any right to appeal the suspension if you do not make your request in a timely fashion.

Remember, you have only 10 calendar days from the time of your arrest to file a request for an APS hearing challenging your license suspension.

What to Expect at an APS Hearing

The APS hearing will be scheduled with a hearing officer at the Driver Safety Office.

The purpose of the hearing is to determine whether: (1) the officer had reasonable cause to believe you were driving under the influence, (2) you were lawfully arrested, and (3) you were driving with blood alcohol content (BAC) of 0.08% or more.

Unlike the criminal case, there’s no independent judge or jury who will determine your guilt. The same hearing officer, who functions as a “quasi-prosecutor” at the hearing, will also determine whether your license will be suspended. Here are some examples of how the hearing is stacked against you.

The hearing officer:

  • Compiles the evidence against you (including the police report, DMV records, DUI test record/alcohol report, and other relevant documents, such as accident reports and witness statements)
  • Is responsible for all rulings on what evidence may be admitted or excluded
  • Makes rulings on your attorney’s objections
  • Engages and confronts your attorney
  • Rules on his or her own objections
  • Makes findings and ruling on sufficiency of the evidence to support your driver’s license suspension

Additionally, there is no Fifth Amendment right against self-incrimination (that is, you can be forced to testify against yourself).

Finally, the hearing officer has the burden of proof regarding all the DUI issues (outlined on your pink Order of Suspension served by the police officer at the time of your arrest)—but merely by a “preponderance of the evidence.” The term “preponderance of the evidence” means “more likely than not,” as opposed to the much higher standard of proof in a criminal trial, “beyond a reasonable doubt.” While in your criminal trial, the prosecutor would have to prove to 99% certainty that you were driving drunk, the hearing officer only has to prove (to him- or herself) that it’s more likely than not.

If the hearing officer decides that the answer to the three questions is yes, your license will be suspended for 4 months on a first-time offense.

Strategies for Success at an APS Hearing

As you can see, the APS hearing process is fundamentally unfair. The most important thing you can do is bring on attorney who knows the ins and outs of the process and can use this to your advantage.

Here’s how I approach these hearings, based on the thousands of cases I’ve handled throughout San Diego, Imperial, Orange, Riverside, San Bernardino and Los Angeles counties.

First, I often challenge statements in documents submitted by the hearing officer as being inadmissible hearsay, or attack the accuracy and sufficiency of the evidence. Since I have the same certification in the standardized Field Sobriety Tests that law enforcement officers receive, I am well-versed in the mistakes and shortcuts officers take that can compromise their evidence.

Additionally, I typically do not have my clients attend the hearing. Since you can be compelled to testify against yourself in these hearings, you could be called as a witness and ultimately provide sufficient evidence on issues where other evidence had previously been successfully compromised or excluded.

Lastly, I use the APS hearing to preview the evidence against you in order to begin developing a strategy for your criminal case.

If your license is suspended after the APS hearing, I may be able to appeal the suspension. Remember, though, time is of the essence! I cannot appeal if you simply fail to make a written request for a hearing in time. Under certain circumstances, you may be able to request a five-day extension before the 10-day window has expired if you indicate you are trying to retain an attorney.

Get in touch today so I can immediately begin helping you obtain a hearing and fight for your driving privileges.