Should a driver be cited by law enforcement for violating statutes associated with being under the influence of alcohol; they could be charged with driving under the Influence (DUI). A driver will face a separate Department of Motor Vehicles (DMV) action concerning the suspension of their driver’s license. Once a person has been cited for DUI, they will have ten days to request a DMV Administrative Per Se Hearing (APS). This hearing will determine if a person’s license is suspended.
Stay Of Execution
When an attorney representing a driver charged with DUI obtains an APS hearing for their client; they will request their client receive a stay of execution from a possible license suspension. If granted, it will be pending the outcome of the APS hearing. When this is granted, a driver can continue driving until they receive a decision from their APS hearing.
A person is entitled to have legal representation when they attend their APS hearing. This is an action that is independent of any action a person may experience from a court of law. Should a person lose at their APS hearing, their license will be suspended. The length of the suspension will be determined by any prior DUIs as well as a person’s blood alcohol concentration (BAC) at the time of their arrest. Any prior convictions for reckless driving, any previous APS hearing that were lost will also be taken into consideration and more.
DMV Hearing Officer
During the APS hearing, it will be a DMV Hearing officer who will act as a judge and prosecutor. Many people wonder how these individuals can be fair and neutral. Some wonder if this is a violation of due process under the law. The reality is many people wonder how a non-judges can be given the authority to determine who has their driving privileges revoked and who does not.
Prior to the APS hearing, the driver facing suspension of their driver’s license has the right to obtain and review all the evidence to be used against them. This is done so the driver can form a defense and be ready to present their case at the APS hearing. Should the evidence not be provided before the hearing, it is a good reason to request time to review it in the form of a continuance. It is common for this type of evidence to contain blood alcohol concentration reports, police report as well as supplemental narratives. The driver should also be provided a list of witnesses the DMV intends to have testify during the hearing.
There are specific issues that will be litigated at an APS hearing. It must be established if the driver had a chemical test and if the law enforcement officer had good cause to believe the driver was under the influence of alcohol or a controlled substance. It must be shown if a driver was lawfully detained or lawfully arrested. The driver having a BAC above the legal limit must be established. If a driver refused to take the chemical test or failed it must be shown. It should be proven the law enforcement officer led the driver to understand they were in violation of the law. If the law enforcement officer informed the driver their license could be revoked or suspended also needs to be established. Should any of the issues during the APS hearing not be proven by the evidence presented, the driver’s license should be reinstated. They will not have their driver’s license suspended.
There are a number of different defenses a driver’s attorney may use during an APS hearing. They could question the reliability of the chemical tests used, insufficient probable cause as well as lack of reasonable suspicion to stop and detain the driver. An attorney may also show inaccuracies in the BAC evidence provided. There may have been issues with illegal search and seizure as well as law enforcement failing to comply with legal requirements and more.
Losing An APS Hearing
Should a driver lose their APS hearing, or not request a hearing within ten days of receiving their notice from the DMV, their license will be suspended. The length of time a person’s license will be suspended is going to be based on a variety of different factors including if they refused to submit to a drug test. A person with a BAC slightly over the legal limit and it is their first DUI, could have their license suspended for four months. Should it be a driver’s second DUI, they had a BAC significantly above the DUI: their license could be suspended for up to two years.
Most people who are successful at an APS hearing are represented by an experienced attorney. The procedure is structured to be complected so people who have no legal training will be at a significant disadvantage if they try to represent themselves. An experienced attorney will know how to handle the process and receive the best possible outcome.
The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship. Learn more about DUI by reading this wikipedia page.