Introductory Guide to DMV APS Hearings

Table of Contents

 DMV APS Hearings 101: A Introductory Guide (2018 Edition)

Worried about your DUI License Suspension? Our 2018 Guide to DUI DMV Hearings will give you a basic understanding of the process and relevant issues. [ninja-popup id=863 autoopen=true]

Very few attorneys practice DUI defense exclusively.

It’s usually just a small part of what they do. Look at a few websites and see the multiple areas of practice and the many different types of cases the attorney handles. Except on rare occasion, DUI Defense is all we do. Another fact that sets us apart is the DUI related specialized training and continuing education we attend. There is no better way to keep up on changing laws and trends.

When you retain our office, you will be working directly with us. We subpoena all the records we believe may provide a defense to the DUI license suspension by DMV. We use those same records to determine whether there may be a defense to the court case, rather than take a wait and see approach. It’s not enough to just order reports and ask if everything looks the way you remember it. Even if you hire an attorney that knows what defects or technical issues to look for on the face of the reports, without the other records that take time and money to obtain, you may be cheated out of a win. Examples of “other available records” are video, audio, dispatch logs, radar records and officer certification, breath instrument and blood records, etc.

There are better ways to handle the issues associated with a DUI that may save you money, time, and stress. We invite you and even encourage you to take advantage of our offer for a free consultation. It will cost you nothing but a little of your time, and we’d be happy to share the information in a phone call. If you like what you hear, you can visit us here in our office. Remember that you only have 10 Calendar days to request a DMV APS hearing, so don’t wait too long.

-Denis H. White

Chapter 1: Basics

DUI License Suspension

With alcohol related driving offenses, DMV may seek to suspend your license/driving privilege through the administrative per se (APS) hearing process.

DUI License Suspension Factors

DMV will suspend your license through this process if you are 20 years of age or younger and your BAC is .01 or more (or you refuse the chemical test). If you are 21 years of age and older, DMV will not suspend your license unless the BAC is .08 or more, you are on DUI probation and driving with any measurable amount of alcohol in your system or you refuse the chemical test.

Contesting DUI License Suspension

There are some instances where you may be better served by not requesting a hearing, but this has to be dealt with on a case by case basis.You may choose to contest this suspension by making a request for an APS hearing through a DMV Drivers Safety Office. (This may be different from the local field office where you renew your license, registration, etc.)You must request the hearing within 10 calendar days of the date of the incident, or you risk having your request denied. Although you would probably not be denied if the 10th day fell on a weekend or holiday when DMV is closed, it is advisable to call on or before the deadline to avoid any debate.There are 16 Drivers Safety Offices listed on DMV’s website but there are also smaller satellite offices where the hearings are sometimes held.In most instances, law enforcement will have taken your license and issued you a pink piece of paper that will serve as a temporary license. There is a phone number for you to call listed at the top right hand corner of that form. We normally ask for a hearing, stay and discovery. This gets us a copy of the reports and prevents DMV from automatically suspending your license.

Chapter 2: Law Enforcement Agencies

What if law enforcement didn’t give me a pink temporary license?

In the confusion of administering field sobriety tests, the breath or blood test, arrest, booking and ultimately release from jail, sometimes this is just an oversight. Other times, law enforcement may discover that the alcohol level is below a certain limit or that you are under the influence of a drug and decide the form is unnecessary.

What if law enforcement didn’t take my California driver’s license?

Sometimes law enforcement overlooks their obligation to take your license and mail it to DMV. Other times, it may be because your alcohol level was below .08 or the DUI arrest was for something other than alcohol.

What if I have an out of state license and the officer didn’t take my license?

Law enforcement doesn’t have the right jurisdiction to confiscate your out of state license.

What if I have an out of state license and law enforcement took my license?

Contact the arresting agency or officer immediately and let them know that you would like to retrieve it from them. If you delay and the license is mailed to DMV, it is very likely gone for good.

What is a DS367?

The DS367 is the officer’s sworn statement and may be an “AGE 21 AND OLDER OFFICER’S STATEMENT” or “UNDER AGE 21 OFFICER’S STATEMENT’. In most instances, the DMV hearing officer will use this sworn document, rather than go to the trouble of having law enforcement testify at your hearing. One of the most basic requirements is that the document be signed at the bottom of the page by law enforcement. Look at the bottom of your pink temporary license to see if this was done.Both forms are three pages, with information on the front and back of each page. Copies of both forms, front and back, are printed on the next 12 pages. The driver must be given notice of any proposed suspension, which begins with information placed on these forms.

Chapter 3 DMV Hearings

Should I request an in person or a telephone hearing?

In person hearings are preferable if credibility is in issue or you have evidence you wish to present at the hearing. If you live too far away to make an in person hearing, you will need to get your evidence to the DMV hearing officer timely. If the evidence you intend to share is anything other than live testimony from a witness at the hearing, make sure you get it to the drivers safety office at least 10 days before the hearing.

Can I have my own witness testify at the DUI license suspension hearing?

If you have one or more witnesses, you should notify DMV in advance as the hearing only lasts about one hour.

Is the arresting officer going to be at the DUI license suspension hearing?

Only if you or DMV subpoena the officer to testify. Normally, the DMV uses the officer’s sworn statement on the pink DS367 form to enter the reports into evidence.

Can I subpoena an officer to testify at the DUI license suspension hearing?

Yes, but most agencies charge a fee. The fee or deposit is normally $275. With some agencies like the California Highway Patrol, the officer may be entitled to a four hour minimum which would increase the cost to about $400. Additionally, you will need to properly serve the officer with a subpoena.

Why did DMV subpoena the arresting officer to my DUI license suspension hearing?

There are a few possibilities. The officer may have forgotten to sign the DS367, there may be a question about the legitimacy of the initial contact or the reason given may be vague and ambiguous, the actual time of driving may be unclear, etc.

Chapter 4: DMV Hearing Prep

What do the suspension codes mean on my DMV printout?

First, you need to figure out whether the DMV is treating your DUI license suspension as a first or consecutive offense. To do this, you need to look at the “LEGAL HISTORY” section of your driving record in the CDL printout. Within that section, any prior convictions will be denoted with the heading title, “RSN” (Reason for Action).

Suspension codes for Driver Age 21 and Older

Drivers 21 Years of Age and Older:

• 966 (first offense; excessive BAC)• 967 (second or third offense; excessive BAC)• 968 (first offense; refusal)• 975 (second offense; refusal)• 978 (third offense; refusal)

Drivers Under the Age of 21:

• 927 (1st, 2nd, or 33rd offense; excessive BAC)• 928 (first offense; refusal)• 960 (second offense; refusal)• 961 (third offense; refusal)

Suspension codes are listed under the heading of RSN (reason for action) on the DMV printout. If DMV upholds the action at an APS refusal hearing, this code determines the length of the suspension.

Figure 2 – The reason this was a second offense DMV action is because the driver suffered a prior DMV action under suspension code 927 within 10 years of the current offense.

Figure 3 – The reason this was considered a third offense refusal is because the driver suffered two prior DMV actions within 10 years of the current offense.

How can I find out if the breath machine(s) were working properly?

These records have to be subpoenaed from the arresting agency or party responsible for the accuracy checks, calibration, and maintenance of the machine. DMV has subpoenas that are meant to be used for this purpose.

PAS Explanation

A Preliminary Alcohol Screening (PAS) device is what is used to test an individual’s breath for alcohol at the scene. Law Enforcement records vary somewhat but are similar enough that a simple explanation will allow you to identify what is important. Most of the information we’re looking for is on the “PAS DEVICE ACCURACY CHECK/CALIBRATION LOG”If the numbers recorded at or near the date the PAS was used on you are higher in the “PAS ACCURACY CHECK RESULTS” column than the number identified in the “VALUE” column, this is called a high bias. We should be able to subtract the difference between the two numbers from the PAS numbers listed in your police reports.Additionally, this machine is supposed to be checked for accuracy at least every 150 uses or 10 days. Did they do this?The second paper is the “CERTIFICATE OF ANALYSIS” We are looking to see if the lot number matches the one listed on the “PAS DEVICE ACCURACY CHECK/CALIBRATION LOG” page and to determine whether the simulator solution or dry gas has expired.Some Law Enforcement agencies outside Sacramento County do not maintain their own PAS devices and the records may look different.

Analyzing PAS Accuracy

Certificate of Analysis

Record of Repairs

Drager Breath Machine Explanation

The Drager 7110 is the instrument used in all of Sacramento County to test an individual’s breath for alcohol. There are 2 units at the Sacramento County Main Jail and at least one in each of the arresting agency offices. The Sacramento County District Attorney’s Crime Lab is responsible for maintaining the machines and records are usually made available to us by the third week of the month following the month of your arrest.There are 3 categories of information we want to look at. The first is “SUBJECT TEST LOGS”. This will have the readings of your breath test. It may seem confusing at first because you’ll see 4 numbers and most times you’re only asked to give two breath samples. The reason for this is that the machine is testing your breath using two different forms of technology. IR stands for Infra-Red and EC stands for Fuel Cell.The first column contains readings for the breath sample and the next column indicates the breath sample for the second. You’ll also notice that they include more digits than the breath strip shows. The third digit is dropped and the lower number should always be used when reported. In other words, If the machine shows an IR number of .093, over an EC number of .089, the reading on the printout in the police report should show .08The second category is the daily “ACCURACY CHECK LOG”. The GES Value column shows what the machine should be reading each time it is tested. A gas is used with a known alcohol value, which in most instances will be at or about .100. We are looking at the readings a few days on either side of the date the machine was used to test your breath and are looking for numbers that are higher than the known value of the gas used. If the numbers in the test result column are higher than the GES value column, this is evidence of a high bias.The last category is the “Maintenance Log”. We are looking for something more than “Cylinder Installed” as that just means the gas tank was changed. Notes indicating that a machine was removed from service and sent to the factory may be helpful.

How can I find out if there is any audio or video of the incident?

A DMV subpoena is used to request audio or video recordings of the incident. It must be properly served on the party that has the recordings. Not all agencies are equipped the same. It’s helpful to know in advance if a law enforcement agency has in car camera video or body cams. If your subpoena request is vague, you may not receive the evidence you are looking for.

Chapter 5: Blood Tests:

In certain instances it makes sense to order a blood litigation packet from the lab that analyzed the blood. We believe that the people running and working at the crime lab in Sacramento are doing a great job. Still there are times when it’s appropriate to question the blood results. The lab has been very accommodating when we ask for additional documentation. I haven’t had any issues with the testimony of the analysts either. The records attached were some of the ones we subpoenaed for a marginal Blood Alcohol Case and may give you an indication of just how much information is available. It is normally necessary and appropriate to hire an expert to interpret all the data.

There are many potential issues in cases where blood was the evidentiary chemical test. They start with the collection of the sample. The following questions pose some but not all of the potential issues:

Was the individual that performed the blood draw qualified?Was the blood drawn in a medically approved manner?Was the area where the blood was drawn properly cleaned with a non-alcohol swab?Did the vial contain Sodium Fluoride, in a proper amount, which is meant to inhibit fermentation?How was the blood stored?Was it refrigerated?Is there a proper Chain of Custody from the blood draw to the lab and an internal chain of custody within the lab?What are the methods, policies and procedures of the lab that analyzed the sample?What type of equipment does the lab use to test the blood samples?Are there any concerns with the Chromatograms?Was the analyst qualified?Were the quality control runs within an acceptable range?Is there a reason to retest the blood with a private lab?

Chapter 6: Refusals

What are the issues in a DMV APS “refusal” hearing?

In the context of a CHEMICAL TEST REFUSAL HEARING, DMV must prove:

a. Law Enforcement had reasonable cause to believe the individual had been driving a motor vehicle in violation of VC23136, VC23140, VC23154, VC23152, VC23153.b. The individual was lawfully arrested under VC23152, VC23153 or lawfully detained under VC23136, VC23140, or VC23154.c. The individual was advised that the refusal would result in a suspension or revocation of the person’s driving privilege.d. The individual refused or failed to complete the chemical test(s) after being requested to do so by Law Enforcement.

How long is a DUI refusal suspension in California?

a. no prior administrative actions or convictions in the last 10 years – the suspension period is one year with no ability to get a restricted license.b. one prior administrative action or conviction in the last 10 years – the suspension period is two years with no ability to get a restricted license.c. Two or more administrative actions or convictions in the last 10 years – the suspension period is three years with no ability to get a restricted license.

* prior convictions are measured from date of offense to date of offense

Additional Refusal Issues

While an individual has a right to refuse a chemical test of his/her blood, breath and, in some circumstances urine, law enforcement agencies have been resorting to getting judges to sign warrants for the taking of blood samples; forcefully if necessary. In many instances, law enforcement is video and audio taping the admonition (advisement) and sometimes the actual blood draw.

If law enforcement fails to advise individuals properly, a refusal action may be “Set Aside” by DMV.

If law enforcement fails to give a proper Preliminary Alcohol Screening (PAS) advisement, DMV may not be able to sustain a refusal action. A proper PAS admonishment should let an individual know that they will need to complete an evidential chemical test if law enforcement decides to arrest the person. Without a proper admonition, a person might believe they’ve already completed the evidential chemical test.

If an individual isn’t given a choice of blood or breath test following a lawful arrest for an alcohol DUI, there may be an argument against a refusal action.

If there is officer induced confusion surrounding the rights and obligations of the individual, a refusal action may be avoided.

Failure to clearly and unambiguously consent to a chemical test or even silence, without physical resistance, may be deemed a refusal.

Conditional consent, depending on the condition, may also be a refusal. A request to see a blood technician’s credentials should not amount to a refusal.

A head injury or other mental health issue may also be a debate to a refusal action.

If there is a refusal at the scene when law enforcement doesn’t have the present ability to give an evidential breath test or take a blood sample, a later consent to a test may not amount to a refusal.

Although everyone is entitled to hear the chemical test admonition, if an individual is disruptive verbally or physically, the DMV may find a refusal suspension is proper.

Hemophiliacs or persons under the care of a doctor for a heart condition requiring an anticoagulant aren’t required to take a blood sample. Of course, they would still have to submit to a breath test if available or urine test if breath is unavailable.

Chapter 7: Saved Licenses and Client Reviews

Sometimes, all the stars and moons line up and we are able to take advantage of technical shortcomings by law enforcement.