The DMV DUI Hearing and license suspension: After a person is stopped and arrested for DUI, the police officer will immediately take possession of your driver’s license. You will then be given a pink Form DS-367 at the time of your arrest or on your release from jail. Form DS-367 is a Notice of Suspension and Temporary Driver’s License. This allows you to drive for thirty days, but after the date of arrest, you only have 10 calendar days to schedule a DMV DUI hearing, called an APS hearing or Administrative Per Se hearing, to contest your license suspension. If the 10th day falls on a weekend or legal holiday, then you have until the next day for file the request for the administrative per se hearing. If you fail to schedule an APS hearing within this 10 day period your license will automatically be suspended. We provide a 10 day DMV hearing request form on this website. You can visit the link below to get the form, along with the phone numbers for the DMV Driver Safety Offices.
The DUI DMV Hearing is commonly referred to as an “APS Hearing”. This stands for Administrative Per Se Hearing. The DMV hearing is usually conducted in a small room with a DMV officer. The hearing will be tape recorded by the DMV officer. You also have the right to bring your own tape recorder to the hearing. The DMV officer is not a lawyer, prosecutor or a judge. He or she is simply a DMV employee. However, the DMV officer plays the role of a prosecutor and a judge at the same time. It is the DMV officer who presents evidence on behalf of the State and who also makes the final ruling.
The DMV officer has the burden of justifying that your license be suspended. (The pink DS-367 form that you were given when you were arrested states that you have to show that your suspension is not justified in order to avoid having your driving rights suspended. This is an incorrect statement. It is the DMV that has the burden of proof, not you.) The DMV officer must find:
- that the arresting officer had probably cause to stop you;
- that the arresting officer made a lawful arrest; and
- that you were either (a) driving under the influence of alcohol or (b) that you had a blood alcohol content (commonly referred to as “BAC”) of 0.08% or higher, unless you are under the age of 21 or a commercial driver in which case the standards are even stricter.
The DMV hearing is a highly technical process. It is also a crucial step in the entire process.
Advantages of Requesting a DUI DMV Hearing: Even if you are guilty and expect to lose the hearing, request one anyway. There are several ways a DUI DMV Hearing can help you.
- Timing of the suspension: One of the main advantages of a hearing is that you can time the beginning of your suspension date. Someone who knows the system could put a suspension off for as much as 75 days with a little advance coordination. Not only can you delay the suspension, but you can also pick the date the suspension begins. To set a suspension date simply advise the hearing officer one day before the hearing that you want to cancel a hearing and schedule a suspension. If you need more time, hire your attorney just before the hearing date–the hearing officer will give the attorney 30 days to prepare. Then he can cancel it just before the hearing date which could buy you another two to four weeks.
- Gathering Evidence for Court: The DUI DMV Hearing is the only opportunity that you will have to question the police officer (or other government witnesses) on the record and under oath without the district attorney being present. If you have any fighting chance at all in your case, then this DUI DMV hearing becomes extremely important.
- You could win! If the stop of your car was illegal, it doesn’t matter how drunk you were, the case could be thrown out by the DMV and thrown out of court. If there are problems with the breath or blood test, if the blood test report was prepared more than six days after the analysis of your blood, if you have GERD, if you were stopped at an illegal sobriety checkpoint, if…well, you get the picture.
Your Driving Record & The DMV
- Click here for instructions from the California DMV on how to get a copy of your driving record.