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DMV APS Hearings & Procedures

DMV APS Hearings & Procedures

The Administrative Per Se (APS) Suspension Action 

Often referred to as the “stop and snatch” law, the Administrative Per Se (APS) Suspension law is intended to promptly remove drunk drivers from the road.

The 30-day temporary license that accompanies every Order (discussed below) obviously defeats this legislative goal, but it is necessary to avoid due process challenges to the summary taking of one’s driving privilege without the opportunity to contest the action.

Grounds for Issuance of an APS Order 

There are several possible grounds for a person to be served with an Administrative Per Se Suspension (APS) Order:

Drives with a 0.01% or higher BAC while under 21 years of age. CVC §13353.2(a)(2).
Drives with a 0.01% or higher BAC while on DUI Probation. CVC §§23154 and 13353.2(a)(4).
Drives with a 0.04% or higher in a commercial vehicle. CVC §§13557(b)(2)(C)(iv) and 13353.2(a)(3).
Drives with a 0.08% or higher BAC. CVC §13353.2(a)(1).
Refuses to submit to and complete a chemical test, CVC §13353, or P.A.S. test if under 21 or on DUI probation.
See: CVC §13353.1.

California DMV APS Suspension Periods 

APS suspension periods are governed by CVC §§13353, 13353.1, and 13353.3.

Prior APS suspensions and/or prior convictions will enhance some of the suspension periods. “Conviction” includes a juvenile court finding, infraction, misdemeanor, or felony for any of the following:

CVC §23103, but only where person sentenced pursuant to CVC §23103.5 (alcohol related reckless driving, commonly referred to as a “wet reckless”).

CVC §23140
CVC §23152
CVC §23153
Pen. C. §191.5
Pen. C. §192(c)(3)

Out-of-state conviction for any offense which, if committed in the State of California, would be a violation of any one of the above referenced statutes.

California DMV APS Hearing Discovery 

Both the licensee and the DMV are entitled to discovery in preparation for the APS hearing. The scope of mutual discovery is set forth under Government Code §11507.6 (it covers the type of discovery set forth under Pen. C. §1054.3 for criminal actions)

California DMV APS Requests for Discovery 

Discovery requests are governed by Cal. Code of Regulations, Title 13, section 115.05, which reads as follows:

Notwithstanding the provisions of Section 11507.6 of the Government Code and, in order to conform to the time constraints for hearings under Chapters 2 and 3 of Division 6 of the Vehicle Code:

(a) A party’s request for discovery may, with the approval of the department, be made by telephone or in person.
(b) A request for discovery must be made at least 10 days prior to the date set for commencement of the hearing to receive discovery prior to the hearing.
(c) A request for discovery may be grounds for a continuance; however, it shall not stay the action by the department.

Excessive BAC DMV APS Hearings (0.08% Or Higher) 


Summary of the Issues

The DMV must prove the following three issues at an over-21 excessive BAC hearing:

(a) The peace officer had reasonable cause to believe that the person had been driving a motor vehicle in violation of CVC §§23152 or 23153;

(b) That the person was arrested;

(c) That the person was driving a motor vehicle with a .08 or higher blood-alcohol level.

CVC §§13558(c)(2) and 13557(b)(2).

If the department determines that any of those facts were not proven by the preponderance of the evidence, the department shall rescind the order of suspension or revocation and, provided that the person is otherwise eligible, return or reissue the person’s driver’s license pursuant to CVC §13551.
If the DMV intends to aggravate the length of the suspension order based on a prior conviction or administrative action with offense dates within ten years, then the existence of the prior conviction or administrative action must also be proven by the DMV. CVC §13353.3.

Excessive BAC DMV APS Hearings (0.04% Or Higher—Commercial Drivers) 


CVC §13353.2(a)(3) provides that the DMV shall immediately suspend the privilege of a person to operate a motor vehicle if the person was driving a vehicle that requires a commercial driver’s license when the person had 0.04 percent or more, by weight, of alcohol in his or her blood.

A driver may contest this suspension pursuant to CVC §13558(c)(2), which states that the only issues at the hearing are those contained in §13557(b)(2).

The problem is that although the Legislature has amended this statute to include a 0.04 percent limit for persons driving a commercial vehicle, CVC §13557(b)(2)(C)(iv), it failed to modify any of the other issues pertaining to the APS hearing for these cases (e.g., the statute requires a showing that the officer had reasonable suspicion to believe the driver was .08 or higher).

However, Rehman v. Department of Motor Vehicles (2009), addressed this issue and held that it would be absurd to require that showing and that it contravened the legislative intent. Thus, the issues are basically the same as they are in a zero-tolerance case, except that the limit is .04 instead of .01 percent.
Hence, the DMV must establish the following by a preponderance of the evidence:

(a) That the peace officer had reasonable cause to believe that the person had been driving a commercial vehicle with a .04 percent or higher alcohol level;

(b) That the person was placed under arrest or was lawfully detained; and

(c) That the person was driving a commercial vehicle with a .04 percent or higher BAC.

Excessive BAC DMV APS Hearings (0.01% Or Higher—Under 21) 


Summary of Issues

The DMV must prove the following issues at a .01% or higher excessive BAC hearing:

(a) That the peace officer had reasonable cause to believe that the person had been driving a motor vehicle in violation of CVC §23136, 23140, 23152, or 23153;

(b) That the person was placed under arrest or, if the alleged violation was of 23136, that the person was lawfully detained;

(c) That the person was driving a motor vehicle under any of the following circumstances:

      • When the person had a 0.08 percent or higher BAC.

      • When the person was under 21 and had a 0.05 percent or higher BAC.

      • When the person was under 21 and had a 0.01 percent or higher BAC, as measured by a preliminary
        alcohol screening test, or other chemical test.

CVC §13558(c)(2) and 13557(b)(2).

Chemical Test Refusal DMV APS Hearings 


Summary of Issues


The DMV must prove the following issues at a chemical test refusal hearing:

(a) The peace officer had reasonable cause to believe that the person had been driving a motor vehicle in violation of CVC §§23136, 23140, 23154 (effective 1/1/09), 23152, or 23153;

(b) The person was placed under arrest or, if the alleged violation was of CVC §§23136, 23140, or 23154 (effective 1/1/09), the person was lawfully detained;

(c) The person was advised that a refusal would result in a suspension or revocation of the driving privilege; and

(d) The person refused or failed to complete the chemical test or tests after being requested to do so by a peace officer.

See: CVC §13558(c)(1)

Hearing Officer’s Decision: Findings and Conclusions

Decision Announced at Conclusion of Hearing

It is rare that a hearing officer will announce an unfavorable ruling on the spot, particularly with an in-person hearing and with the driver present.

Sometimes, however, the hearing officer will announce a “set aside” of the suspension order on the spot.

Decision Sent by Mail

The most common method for notifying the driver of the APS decision is by mail, with a copy of the order mailed to counsel of record.

Findings and Conclusions

Sometimes the Order will include the hearing officer’s findings and conclusions, whereas other times the Order will simply indicate that these are available upon request.

Either way, the findings should establish sufficient legal support for the hearing officer’s conclusions.
A common tactic employed by some DMV hearing officers is to reject or disregard testimonial evidence presented by the driver, including opinions from his expert, with the naked finding that the witness or witnesses lacked credibility. Any such finding must “identify any specific evidence of the observed demeanor, manner, or attitude of the witness that supports the determination.” Gov. Code §11425.50(b).
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