Overview of DMV Administrative Per Se Hearings Following a DUI Arrest

When a driver is arrested for a DUI, within 10 days they may request what is called an “Administrative Per Se” (APS) hearing with the California DMV to challenge the legitimacy of the detention and arrest for DUI. If the APS hearing is not requested within the 10 days of arrest, the driver’s license will automatically be suspended after 30 days of the arrest. (Cal Vehicle Code §§ 13353.3(a), 13358(b)). If an APS hearing is requested within the 10 day timeframe, however, a temporary license will remain valid until the hearing has been completed or cancelled, which is generally longer than the 30 days from the date of arrest.

After the APS hearing is requested, the DMV will send the driver or their attorney a copy of the police report, chemical test results, and copy of driving record, amongst other discovery items. More often than not, the detention and arrest for DUI will pass the lower standard of proof required at the APS hearing of a preponderance of evidence – meaning “more likely than not” – that the detention and arrest of the driver for DUI was justified. (See Cal. Vehicle Code § 13357(b)).The APS hearings are conducted by a DMV employee called a “Hearing Officer” who generally has no formal legal training other than on-the-job training provided by the DMV. If the driver “loses”, or cancels, the APS hearing, the DMV will issue a written letter that indicates that the driver’s license will be suspended.

For first-time DUI offenders, the APS suspension will be in place for four months. (Cal. Vehicle Code § 13353.3(b)(1)(A)). For second-time offenders, the APS suspension period is one year. (Cal. Vehicle Code § 13353.3(b)(2)(A)). Longer suspension periods apply to those offenders with a higher number of prior DUI convictions or those who were found to refuse chemical testing under Vehicle Code section 13353.1.

Despite these delineated suspension periods for DUI arrests, the Vehicle Code has mandated a means of obtaining a restricted license without suffering an actual period of suspension, as we will see in the next section.

Obtaining a Restricted License after DUI Arrest or Canceling/Losing APS Hearing

First-time DUI offenders are those offenders who have not suffered a prior DUI conviction or arrest within the preceding 10 years. If a first-time offender either does not request an APS hearing within 10 days, or loses/cancels the APS hearing, the four-month suspension period will go into effect unless the driver takes advantage of either one of the two means to obtain a restricted license.

Under Vehicle Code section 13353.7, a driver may obtain a restricted license to drive to and from work/school/DUI program only, if the following criteria are met:

• Completion of 30 days of actual suspension
• Enrollment in the 90-day first offender DUI program;
• Filing of SR-22 insurance certificate from insurance provider;
• Payment of reissue fees to the DMV. (See Cal. Vehicle Code § 13353.7(a)).

To obtain this version of the first-offender’s restricted license, the driver must appear at the DMV in-person and submit proof of the required documents, after which the DMV “shall” issue the restricted license, assuming all of the above requirements are met. (Cal. Vehicle Code § 13353.7(a)).

Another option also exists under Vehicle Code section 13353.6 for first-offenders that allows for driving anywhere for any reason, and does not require any period of actual suspension, if the driver does the following:

• Installation of a certified Ignition Interlock Device;
• Enrollment in the 90-day first offender DUI program;
• Filing of SR-22 insurance certificate from insurance provider;
• Payment of reissue fees to the DMV. (See Cal. Vehicle Code § 13353.6(a)).

An Ignition Interlock Device is an in-vehicle breathalyzer device that will prevent the vehicle from starting if alcohol is detected by the driver. This option is preferred by most drivers as it allows parties to avoid the 30-day suspension period of the other option and provides more freedom as to where the driver is permitted to operate their vehicle.

Similarly to Vehicle Code section 13353.6, for second-time offenders whose license has been ordered suspended after a new DUI arrest, the DMV has authorized the issuance of a restricted license if the second-time offender does the following:

• Installation of a certified Ignition Interlock Device;
• Enrollment in the 18-month multiple offender DUI program;
• Filing of SR-22 insurance certificate from insurance provider;
• Payment of reissue fees to the DMV. (See Cal. Vehicle Code § 13353.75(a)).

Thus, even for second-time offenders, the Vehicle Code has created an avenue to ensure that a restricted license can be obtained so long as the driver has met the strict requirements designed to enhance public safety delineated in the statute.

While the statutorily-provided availability of restricted licenses for first and second-time DUI offenders whose licenses were suspend after arrest or APS hearing as listed above is beyond dispute, the recent crisis created by the COVID-19 outbreak has created an effective denial of the rights provided for in these statutes.

COVID-19, Limited DMV Hours, and the Persistence of APS Hearings despite the Current Health Crisis

On Wednesday March 18, 2020, the DMV announced that due to the risks and concerns for public health in light of COVID-19 outbreak, that while DMV offices would remain open, they would only remain open to those with an appointment and only for DMV activities requiring in-person service, such as driver’s license renewal. This meant that individuals seeking to obtain a restricted license as described above would only be able to obtain the statutorily-mandated restricted licenses if they had an appointment at DMV for that purpose. As of today’s date (March 25, 2020), the DMV announced on its website that that it is no longer scheduling appointments:

California is in a State of Emergency, use other service options to complete your DMV transactions. DMV allows customers to avoid coming to a DMV office through May 15, 2020, and is taking additional steps to protect the health and safety of customers and employees.

Effective immediately, customers whose transactions require an in-office visit will be served on an appointment-only basis. Due to customer demand, there are currently no appointments available.

Source: https://www.dmv.ca.gov/portal/dmv

This announcement functionally eviscerates the statutory guarantees that restricted licenses will be issued to DUI offenders who comply with the listed requirements, as applications for restricted licenses can only be accomplished by in-person DMV visits.

The bad news is that, until the DMV either reopens completely or begins to allow appointments again, if you did not request an APS hearing and your license is set to expire at the 30-day mark after arrest, or if you cancel or lose a DMV hearing and are subject to a suspension of your license, you will have no means of obtaining a restricted license from the DMV. If you continue to drive while your license is suspended, you are committing the crime of Driving on a Suspended license, which is a  misdemeanor carrying a maximum punishment of six months in the County Jail and significant fines. (See Cal. Vehicle Code § 14601.5).

The DMV is further exacerbating this problem by continuing to insist that DMV Administrative Per Se hearings go forward as scheduled, and DMV Hearing Officers are unsympathetic to the current crisis and reluctant to continue the APS hearings without independent good cause. The DMV is thus adding to the State crisis through policies that give hardworking Californians – some of which work in vital industries such as health care – the unsavory choice of either being unable to drive due to the lack of opportunity to obtain a restricted license after suspension, or to become criminals by continuing to drive after the suspension becomes effective. This situation is a complete denial of Due Process highlighting the unacceptable lack of leadership contributing the severity of the COVID-19 crisis at this time.

Honeychurch Law calls on Governor Newsom to solve this denial of Due Process and fundamental fairness by considering an Executive Order that could ameliorate this problem. This could be accomplished by declaring that all APS hearings and automatic 30-day suspensions after DUI arrests should be continued or stayed until DMV offices are equipped to continue to serve the public, or, more crucially, ordering that violations of Driving on a Suspended License for license suspensions that went into effect after the DMV suspended most services on Wednesday March 18, 2020 will not be enforced, until the DMV is able to again serve the public.

While arrests for DUI can be extremely stressful and disorientating in a normal climate, the current confusion and lack of government leadership created by the COVID-19 crisis has created an unprecedented hostile environment that requires the attention of an experienced criminal defense team to navigate and advocate on your behalf. If you or a person you know has been arrested for a DUI in Solano, Napa, or Yolo County, do not hesitate to call Honeychurch Law today at 707-429-3111 for a free consultation with one of our experienced attorneys to determine how we can best assist you in these difficult times.

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