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The Process of a DMV APS Hearing

Many driver arrested for DUI / DWI in California are unaware that they must request a DMV hearing within 10 days or risk having their driver’s licenses automatically suspended. The prospect of facing a Department of Motor Vehicles hearing can be daunting, particularly if the driver doesn’t know what to expect. The experienced drunk driving defense lawyers at The Kavinoky Law Firm can answer any questions about the process involved in a DMV APS hearing and prepare an effective defense designed to fight for the accused motorist’s driving privileges.

The process involved in a Department of Motor Vehicles administrative per se, or APS hearing, is actually fairly straightforward. Unlike the criminal case the accused drunk driver faces, the Department of Motor Vehicles is unconcerned about whether the driver’s ability to operate a motor vehicle was impacted by alcohol or drugs. The DMV focuses only on whether the driver’s blood alcohol content (BAC) exceeded .08 percent – the state’s “per se” limit for driving.

Therefore, the hearing will focus on only one element of a DUI / DWI accusation – the driver’s BAC. In order to suspend a driver’s license, the D.M.V. hearing officer must establish only three facts – that police had reason to believe a crime was committed, that the arrest was lawful, and that the driver’s BAC was .08 percent or greater.

Obviously, if the accused drunk driver refused to take a chemical test there will be no BAC evidence at the Department of Motor Vehicles hearing, but the DMV can also suspend a driver’s license for refusing the test, and the suspension is generally longer.

Unlike a California DUI / DWI criminal trial, where the driver’s guilt must be proven beyond a reasonable doubt, the DMV hearing officer must only prove his or her case by a preponderance of the evidence – a much lower standard of proof. Therefore, a motorist accused of driving under the influence has far fewer constitutional protections at a DMV hearing than in a criminal trial.

At the APS hearing, the hearing officer will attempt to introduce evidence that supports those three facts. Unlike a drunk driving criminal trial, which features live witness testimony, evidence in a Department of Motor Vehicles APS hearing usually consists of police reports and toxicology lab results. These hearings are complex and technical, and shouldn’t be navigated without expert legal help.

The role of a DMV hearing officer is very unusual – he or she serves as both prosecutor and judge. This means that the individual presenting evidence against the driver is the same person who will rule upon it. Although this obviously stacks the deck against the accused drunk driver, several courts have upheld the right of the Department of Motor Vehicles to conduct its administrative per se hearings in this manner.

An experienced California DUI / DWI defense lawyer has defended countless drivers at DMV APS hearings and will argue against admitting much of the evidence against the driver. It may be possible to have the driver’s chemical test results and other evidence suppressed.

The accused drunk driver will receive the DMV hearing officer’s decision at a later date – typically several weeks after the hearing. If the hearing officer is unable to ascertain the three facts mentioned above – that police had probable cause, made a lawful arrest, and that the driver’s BAC was .08 percent or greater – the driver will retain his or her license. If the hearing officer establishes the three facts, the driver’s license will be suspended.

Winning a California DMV hearing after a drunk driving arrest is a great victory, but the driver still has a chance of having his or her license suspended if convicted in criminal court. While recent changes in California law mean that only the Department of Motor Vehicles has the power to suspend a driver’s license, the DMV can do so based on a criminal conviction for DUI / DWI even if the driver wins his or her APS hearing.

Because the driver’s license is at risk from both an unsuccessful DMV hearing and a drunk driving conviction in criminal court, it’s critical to have a top DUI / DWI defense attorney protecting the driver’s rights. The skilled drunk driving defense lawyers at The Kavinoky Law Firmhave the experience needed to aggressively defend any California driving while intoxicated case and will fight hard to protect the driver’s license and freedom.