In my previous post I discussed the DUI arrest process and the fact that when you are arrested for DUI, your license to drive will be immediately suspended by the DMV and you are issued a temporary 30-day license to drive. One of the reasons you receive the temporary license is because you have the right to challenge the DMV suspension of your license at what is called an Administrative Per Se Hearing (APS Hearing).

Even before you worry about the criminal charges, you need to address the DMV suspension of your license because you have only ten days in which you can request an APS hearing before the DMV. The APS hearing is completely separate from the criminal case. Yes, you must defend your DUI on two fronts: the administrative per se sanctions and the criminal charges; they are completely separate from one another. Since the time to request the APS hearing is so short, that should be your first order of business.

You are not required to request or appear for the APS hearing and many of those arrested for DUI do not. If there is no viable defense—that is, the vehicle stop and arrest was lawful and you tested well over .08% BAC—you may chose or your attorney may advise you to forego the APS hearing. If you do not request an APS hearing, your license will be automatically suspended for a period of time that is dependent on the circumstances of your particular DUI (i.e. 1st, 2nd, 3rd or greater DUI, whether you were on probation, and so on). You will also be required by the DMV to attend DUI classes and face other DMV sanctions.

On the other hand, if your attorney believes the cops didn’t have probable cause to stop your vehicle in the first place, or probable cause to arrest you, or the evidence did not establish that you were under the influence, you would be wise to request and appear at the APS hearing. Assuming you request the APS hearing within the ten days, your temporary license to drive, which was issued to you at the time of your arrest, will be extended past the 30 period and until the APS hearing is held and a decision is made by the DMV.

The APS hearing is a fairly informal affair that is held in a DMV local office with your attorney present or by telephonic conference. If an attorney is representing you at the APS hearing, you are not even required to appear. The hearing officer is an employee of the DMV and is supposed to be impartial but truth is, the hearing officer represents the DMV and because there is no prosecuting attorney at the hearing, the hearing officer defaults into that role. The hearing officer is the judge too. Seems unfair, but that is how the law is written.

The hearing officer will examine the facts of the arrest and your attorney will argue in your defense. In most cases, the officer who arrested you will not be present although the DMV reserves the right to call the officer to testify and you have the right to subpoena the officer or any other witness to testify. Most APS hearings however are decided on the arrest report and your attorney’s argument. It usually takes about one to two weeks after the APS hearing is heard for the DMV to issue its statement of decision.

In the best of cases, the DMV hearing officer decides that the vehicle stop or arrest was unlawful or that you were not driving under the influence and the DMV sets aside the action. You will then be able to recover your license at no expense from the DMV. If the decision is unfavorable, your license will be immediately suspended for a period of time depending upon the circumstances of your DUI and you will be ordered to attend DUI classes and face other sanctions, just as you would if you had not requested the hearing.

Whatever the outcome of the APS hearing, your troubles are not over. You still must answer in court to the criminal charges, which usually happens at a date later than the APS hearing (although not always). If the DMV set aside the action, that will bode well before the criminal court, but you still must appear before a judge and defend the charges. In rare instances, when the DMV has decided that the DUI arrest was not supported by the preponderance of the evidence, the prosecutor may dismiss the charges; most often though, that is not be the case.

In my next post, I will discuss what happens in criminal court after you are charged with DUI.

William Weinberg has extensive experience defending those who have been charged with driving under the influence. Please feel free to contact him to set up a confidential consultation without charge at or by phone at (949) 474-8008.