An Administrative Per Se Hearing is a hearing held by the Department of Motor Vehicles (DMV) in which a person can contest the suspension or revocation of the person’s privilege to operate a motor vehicle. (Cal. Vehicle Code § 13557). A person’s privilege to operate a motor vehicle may be suspended or revoked for multiple reasons, including: driving a motor vehicle with a 0.08 or more of alcohol in his or her blood (if the person is under 21, driving with a 0.01 or more of alcohol in his or her blood)(Section 13353.2), refusal to submit to blood alcohol tests (Section 13353), and refusal to submit to preliminary alcohol screening test (Section 13353.1).
Any person who has received a notice of an order of suspension or revocation of the privilege to operate a motor vehicle pursuant to the subsections above-mentioned may request a hearing on the matter. (Cal. Vehicle Code § 13558). Generally, if a person wishes to request for a hearing, the request must be made within 10 days of receiving the notice of the order of suspension or revocation. (Id.). The DMV will designate the location of the hearing and the evidence is limited to the evidence that was presented at the administrative review. (Id.).
Generally, the DMV is permitted to sustain the order or suspension or revocation if the following facts are shown by a preponderance of the evidence:
(1) The peace officer had reasonable cause to believe that the person had been driving a motor vehicle in violation of Section 23136, 23140, 23152, 23153, or 23154.
(2) The person was placed under arrest or, if the alleged violation was of Section 23136, that the person was lawfully detained.
(3) The person was driving a motor vehicle under any of the following circumstances:
(a) When the person had a 0.08 percent or more, by weight, of alcohol in his or her blood.
(b) When the person was under 21 years of age and had 0.05 percent or more, by weight, of alcohol in his or her blood.
(c) When the person was under 21 years of age and had a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test, or other chemical test.
(d) When the person was driving a vehicle that requires a commercial driver’s license and the person had a 0.04 percent or more, by weight, of alcohol in his or her blood.
(Cal Vehicle Code § 13357(b)(3)).
If the DMV determines that any of these facts were not proven by a preponderance of the evidence, then the department must rescind the order of suspension or revocation and the person is generally eligible for return or reissue of the person’s driver’s license. (Cal. Vehicle Code § 13357(b)(3)(4)).
Having one’s driving privilege suspended or revoked is not only a great inconvenience to one’s life, but it is generally coupled with criminal charges being filed against the person in criminal court for the underlying offense. Sometimes, a person is able to fight and resolve the criminal charges, but they are still left with suspended or revoked driving privileges by the DMV. For this reason, it is important to know your right to request an APS hearing to fight this suspension or revocation.
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