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Introduction to APS Hearings

Drivers arrested on suspicion of DUI / DWI in California are often unaware that the charge poses an immediate threat to their driver’s license. Accused drunk drivers have just 10 days after arrest to request a Department of Motor Vehicles hearing or have their licenses automatically suspended. However, the DMV action can be challenged. The experienced defense lawyers at The Kavinoky Law Firm have the skills needed to aggressively fight a D.M.V. action in a California driving under the influence case and protect the accused driver’s rights.

The process involved in a Department of Motor Vehicles administrative per se, or APS hearing, is fairly straightforward. Unlike the criminal case triggered by a California driving while intoxicated arrest, the DMV case focuses on whether the driver had a blood alcohol content (BAC) of .08 percent or greater, not whether the driver was impaired by alcohol or drugs. Therefore, in order to suspend a driver’s license, the DMV hearing officer must establish just three facts – that police had probable cause to believe a crime was committed, that the arrest was lawful, and that the driver had a BAC that exceeded the legal limit.

One aspect of a California Department of Motor Vehicles APS hearing is extremely unusual – the role of the D.M.V. hearing officer. The hearing officer serves as both judge and prosecutor. This means that the individual introducing evidence against the accused drunk driver and the individual weighing that evidence are the same person.

The types of issues covered during a D.M.V. APS hearing depend on whether the driver submitted to a chemical test after arrest to determine his or her blood alcohol content (BAC), or refused the test.

If the driver is alleged to have refused a chemical test, it’s important to determine whether police issued a warning about the repercussions of a chemical test refusal, and whether or not the driver again refused to take the test.

If the accused drunk driver was under 21 at the time of arrest, additional issues will arise at the hearing. Although the legal limit for driving is now .08 percent BAC in all 50 states, a driver who is under 21 can have his or her license suspended by the DMV with a BAC of just .05 percent or greater.

If the driver’s DMV hearing is unsuccessful, the consequences will also depend on whether or not the motorist submitted to a chemical test after arrest. A driver who refused a chemical test will receive a longer license suspension after an unsuccessful D.M.V. hearing than one who submitted to a test of the blood, breath or urine.

The license suspensions imposed by the DMV if the driver’s hearing is unsuccessful can be severe – for a first offense, the driver will lose his or her license for four months, with the possibility of getting a restricted license to drive to work. Motorists facing a first offense who refused to take a chemical test will lose their driver’s licenses for one year, without the option of obtaining a restricted license.

For multiple driving under the influence arrests that occur within a 10-year span, the consequences are even greater. On a second offense, the driver’s license is suspended for one year, or two years if the driver refused a chemical test. On a third offense, the license is suspended for three years.

Fortunately, an unsuccessful Department of Motor Vehicles APS hearing stemming from a California drunk driving arrest can be appealed. There are two options available to appeal an unsuccessful DMV hearing – a request for administrative review, or a writ of mandate. Either action may result in the DMV hearing officer’s decision being overturned, and the driver’s license being restored.

The California Department of Motor Vehicles will act fast to suspend a driver’s license following a DUI / DWI arrest, but the driver’s loss of privileges can be avoided with the help of a top lawyer. The skilled drunk driving defense attorneys at The Kavinoky Law Firm will aggressively defend individuals accused of driving while intoxicated at their DMV hearings and fight to protect their licenses.