Many motorists arrested for DUI/DWI do not understand the relationship between their criminal case and the DMV. Arrests for driving under the influence trigger two separate cases: the criminal case and the DMV case.
In the past, both the court and the DMV could order driver's license suspensions. Now, only the Department of Motor Vehicles can suspend a license, either because of an unsuccessful DMV hearing or a criminal court conviction. In other words, even if the jury finds you not guilty, the DMV may still decide to suspend your license.
The DMV hearing following a DUI arrest is known as an “administrative per se” hearing, or APS. They are held at the DMV offices nearest to where the offense occurred. Unlike court trials, which involve live witness testimony, the DMV hearing will focus on the various police and chemical test reports. Much of the evidence introduced at a DMV hearing is usually “hearsay,” that is, statements made by people who are not present at the hearing. However, the DMV cannot suspend your license on the basis of this kind of evidence alone. There is what is called the “hearsay rule,” which makes this kind of evidence inadmissible at trial. Although this is the DMV and not a court of law, your attorney can still challenge the evidence based on the hearsay rule, and if the evidence cannot be legally introduced, the DMV cannot suspend the drivers license. Your attorney can also subpoena or request the presence of a witness, such as the arresting officer, to appear at the hearing and testify. That way the evidence is no longer considered hearsay.
Another unique aspect of the DMV hearing is that the prosecutor and the judge are the same person. In other words, the individual seeking to introduce evidence is the same person who will rule upon it. This person is not a judge or an attorney, but an employee of the DMV.
The issues raised at a hearing include:
1. Were you driving the vehicle?
2. Were you legally stopped by the officer?
3. Were you legally arrested by the officer?
4. Did you take a test and was it done properly under the law?
5. Did you have a blood alcohol level above the legal limit?
If you took a chemical test, there are three issues at stake: 1) whether the officer had a reasonable belief that you were under the influence, 2) whether the arrest was lawful, and 3) whether a properly conducted chemical test indicated that the driver had a BAC of above the legal limit.
If you refused a chemical test, it must be determined whether you were advised of the consequences of refusing the test, and whether you still refused the test after being advised of the consequences. If you lose the DMV hearing, the length of the license suspension will be substantially longer if you refused the test.
The arresting officer is required by law to immediately send to the DMV a copy, with a sworn report, of the notice of suspension or revocation and any drivers license taken into possession. The DMV automatically conducts an administrative review that includes an examination of the officer's report, the suspension or revocation order, and any test results. If the suspension or revocation is upheld during the administrative review, you may request a hearing to contest the decision.
Your drivers license will be returned to you at the end of the suspension or revocation, provided you pay a reissue fee to the DMV and you file proof of financial responsibility. If it is determined that there is no basis for suspending or revoking your license, it will be issued or returned to you.