The administrative license suspension program, known as “Admin Per Se” (“APS”) was implemented in California in 1990 to serve as a stronger deterrent to drunk driving. The APS program compels the Department of Motor Vehicles (“DMV”) to immediately suspend or revoke the driving privileges of any person arrested for the suspicion of driving under the influence (“DUI”) of alcohol or alcohol and drugs, who:
- Takes and fails a chemical test (blood or breath)
- Refuses to take or fails to complete a chemical test
Failing a chemical test means registering a reading of the accused individual’s blood alcohol concentration (“BAC”) level of greater or equal to:
- 0.01% while under probation for a prior DUI or under the age of twenty-one (21)
- 0.04% while driving a commercial vehicle
- 0.08% while driving a noncommercial vehicle
Order of Suspension/Revocation
In such an event, the police officer that has conducted the test will typically confiscate the accused individual’s valid, California driver license and issue an APS Order of Suspension/Revocation (“APS Order”) regarding the license. If the officer fails to issue the APS Order of the license, then the DMV will mail the accused individual one. The APS Order will set an effective date of typically 30-days after the date of the detention/arrest for DUI.
Please note that this APS Order is separate and distinct from any criminal (or civil) consequences one may have from the DUI incident. One accused of DUI will likely still be subject to a criminal offense related to that DUI, which is charged and pursued by the local office of the district attorney or municipal attorney’s office. And if the DUI resulted in injuries or damaged property of another, one might be subject to civil liability for those damages. Rather, the Order is relating solely to theprivilege of driving in the state of California.
In addition to the APS Order, the peace officer will provide the accused individual with a 30-day temporary drivers license. The 30-day license can be used in the wake of the APS Order and its purpose is to permit the accused individual to continue to be allowed to drive while exhausting one’s right to challenge the APS Order.
Request a Hearing
The individual will then have ten (10) days from the receipt of the APS Order to request an administrative hearing regarding the APS Order. The hearing takes place almost immediately thereafter (5-7 days) in order to ensure that a decision is rendered before the effective date of the APS Order.
Please note that this expedited basis of requesting a hearing is the key feature of the APS program in place to serve as a stronger deterrent. While an accused individual is attempting to literally and figuratively regain his or her composure and control (i.e. mentally, socially, professionally, and possibly physically), the DMV is taking prompt action to revoke that individual’s driving privileges. Thus, if one seeks to challenge the underlying suspicion of the DUI, one must act promptly.
Keep in mind that the basis of the administrative hearing is extremely focused. The hearing is not the forum for addressing the crimes being charged or civil liability being alleged. Furthermore, it is not the forum for arguing for mercy, demonstrating rehabilitation/mitigation, or arguing for a restricted license for purposes of work or health. Rather, this hearing is solely to determine whether the DMV was justified in issuing the Order. What that means is that the only questions to be answered are:
Took and failed a chemical test:
- Did the peace officer have reasonable cause to believe the individual was driving a motor vehicle in violation of California Vehicle Code, §§ 23152, 23153, or 23154?
- Was the individual lawfully detained while on DUI probation or lawfully arrested?
- Was the individual driving a motor vehicle when his or her BAC exceeded the relevant limit?
Refused to take or failed to complete a chemical test:
- Did the peace officer have reasonable cause to believe the individual was driving a motor vehicle in violation of CVC §§23152, 23153, or 23154?
- Was the individual lawfully detained while on DUI probation or lawfully arrested?
- Was the individual told that his or her driving privilege would be suspended or revoked upwards to 3 years if he or she refused to submit to or failed to complete a chemical test?
- Did he or she refuse to submit to, or fail to complete a chemical test or preliminary alcohol screening (PAS) test (while on DUI probation) after being requested to do so by a peace officer?
So, the purpose of this administrative hearing is to permit the individual an opportunity to challenge the detention, challenge the underlying peace officers communications, and to challenge the testing apparatus and results. That is really it.
The administrative hearing is presumed to be telephonic unless one explicitly request an in-person hearing. One may represent oneself or, at his or her own expense, an attorney or another person may represent the individual at the hearing. The individual also has the right to have a sign or language interpreter present at the hearing (i.e. one should immediately notify DMV if he or she requires an interpreter.)
Before the hearing, and upon request, one may see and/or obtain copies of DMV’s evidence. If one wants copies released to someone else, such as an attorney, the individual must give the person signed permission and provide it to the DMV at the time of the request.
The individual may subpoena the officer or any other witness(es) he or she feel may help prove one’s case and have relevant testimony or evidence to present. However, the individual is responsible for paying any required fees and for making sure the witness(es) receives the subpoena. The DMV does not make arrangements to have the peace officer testify.
The decision on the hearing is usually issued within 7-10 days of the hearing.
No Hearing Requested
Regardless of whether a hearing is requested, the DMV automatically conducts an administrative review of the APS Order. This review is completely internal to the DMV. It may include an examination of the officer’s sworn report and any accompanying documents, such as an arrest or traffic collision report.
This review does not include any participation from the accused individual. Rather, it is merely conducting an internal review.
Ultimately, this serves as more-or-less a rubber-stamping of the action by the peace officer. Thus, if one believes that there are errors in the process or result, then one should not rely on this administrative review catching those errors. Rather, the individual should request a hearing.
If the review shows there is no basis for the APS Order, it will be set aside. DMV will notify you in writing only if the APS Order is set aside.
After the hearing decision, one may “appeal” by submitting a written request for a department review within 15 days of the effective date of the notice. There is a fee for a department review ($120; California Vehicle Code (CVC) §§ 14105.5, 14907). And this review is done internally, similar to the automatic review as above. However, it is reviewing the evidence and findings made by the hearing review officer.
If that post-hearing review is unsatisfactory, the next step would be to challenge the findings by way of writ of administrative mandate.
Restricted Driving Privileges
If one does not challenge the APS Order or the administrative hearing and post-hearing review of the hearing decision is unsuccessful, the individual still may be able to drive. Such would be through applying for restricted driving privileges.
Restricted driving privileges only apply to non-commercial licensees. Thus, there is no ability to receive a restricted commercial license. Furthermore, to be eligible for a restricted license, one must meet ALL of the following elements:
- First DUI offense
- Completed and failed a chemical test
- 21 years or older
- Driving privileges were not suspended or revoked for some other reason unconnected to the DUI
For purposes of “first DUI offense,” the individual must not have had any other driving-related offense within 10 years of the most recent DUI offense.
If eligible for a restricted license, then when must complete the following requirements to receive the restricted license:
- Enroll in a licensed DUI First Offender program. (Note: if you enroll and fail to participate or do not complete the DUI program, the DMV will suspend your driving privilege for up to 4 months following notice of failure)
- Notify the program provider that you intend to apply for a restricted driver license.
- Ask the program provider to file a Proof of Enrollment Certificate (DL 107) in a licensed DUI First Offender program with DMV (California Vehicle Code, § 23538(b)).
- File proof of financial responsibility (i.e., a California Insurance Proof Certificate [SR 22], $35,000 cash deposit, surety bond, or self insurer certificate under California Vehicle Code, § 16430).
- Pay the DMV a $125 reissue fee.
- Wait until the end of the mandatory 30-day suspension period before applying for a restricted driver license.
- Request a to/from/during course of employment and DUI program restriction.
Once issued, the restricted license will permit you to drive to and from work, and to and from the DUI program. This restriction is valid for 5 months from the issuance date and until you complete the driving program.