Criminal defense attorney Tina M. Barberi, PC

Law Offices of
Tina M. Barberi, PC

DUIs and DMV Help: Save My Driver's License!

September 16, 2015

DUIs and DMV Help: Save My Driver's License!

The Driver Safety Administrative Per Se "APS" Hearing is an informal hearing, where the hearing officer does not normally have any legal training.  The hearing officer will serve two functions: prosecutor and judge.  At the hearing, drivers are entitled to review and challenge evidence; subpoena and present witnesses; cross-examine DMV’s witnesses; and, testify on one’s own behalf.

What are the Issues at a APS Hearing?

The scope of the APS hearing is limited to the following issues: 1) Did the officer have probable cause to stop the driver’s vehicle? 2) Did the officer lawfully arrest the driver? 3) Was the driver operating a motor vehicle with .08 or more by weight of alcohol in his/her blood? The third issue will change if the driver is under 21, is on probation, or is driving a commercial vehicle.

If the hearing is a refusal hearing, the following issue will also be decided: 1) Was the driver told that a refusal to submit to or failure to complete a chemical test would result in a one year license suspension? 2) Did the driver refuse to submit to or fail to complete a blood or breath test after being asked to do so by an officer?

What Happens at the APS Hearing?

The hearing officer will introduce evidence, including the officer’s sworn statement, all chemical tests results, and the driver record printout.  You have a statutory right to all discovery that the DMV will rely on to make its decisions.  DMV may also call witnesses, such as the arresting officer or government expert to prove its case.  All evidence will be marked into evidence, but the driver may object to the evidence being admitted into evidence.  The hearing officer will make a determination if the evidence will be admitted.

Can Additional Evidence be Admitted?

In order to receive additional evidence that may be available, the driver must subpoena the evidence from the arresting agency or the agency that is the custodian of records. You have a right to serve a subpoena duces tecum to obtain the evidence to determine whether any legal and/or factual defenses exist. It is common for the driver to request patrol videotapes (PVS/MVS/MVARS), digital audio recordings (DAR), CAD and/or Dispatch Logs, maintenance and calibration logs for breathalyzer machines, and gas chromatograph records for the blood analysis.

Once the hearing officer finishes introducing the evidence against the driver, you may admit evidence.  This can consist of reports, videos, or witness testimony, including expert testimony, as long as the evidence is relevant and pertains to issues within the scope of the hearing.  The necessity of a license is irrelevant.  At the close of the hearing, the driver may make a closing statement to argue why the suspension of the license should be set aside because the evidence does not support a finding that the police officer had probable cause to stop the vehicle; the driver was lawfully arrested; and/or, the driver was not operating a motor vehicle with .08 or more by weight of alcohol in his/her blood.

What Happens after the Hearing?

After the DMV hearing officer receives all the evidence, a decision based on a preponderance of the evidence standard is made.  The hearing officer does not make a determination at the time of the hearing.  Instead, the hearing officer will write a decision and mail it to the driver.  If DMV finds the suspension is justified, the suspension will go back into effect.  If the DMV does not find there is sufficient evidence, the suspension will be set aside and the license will remain valid.

Can I Appeal the Decision?

If you disagree with the decision, you can request a departmental review within 15 days from the written decision or seek review in the Superior Court by way of petition for Writ of Mandamus within 30 days or up to 94 days from the written decision.  

I have More Questions.

If you have more questions and need answers regarding your DMV hearing, see our DMV page. You may also send us an email or call us at (559) 447-1240 and we will be happy to explain the process to you.

California DUI lawyer, DMV Driver's Safety, DMV hearing after DUI, DMV hearings, DMV lawyer, Fresno DMV, Fresno DUI, lose driver's license

Tina M. Barberi, criminal defense attorney in Fresno, CA, defends clients when they are charged with a criminal, DUI, or traffic offense. If you are charged with a crime, contact her now for a free consultation.

Traffic Law Posts

Traffic
Save your California driver's license with a DUI law firm that can fight your case for you. Get the help you need at affordable rates.
DUIs and DMV Help: Save My Driver's License!
Have you been arrested for a DUI lately? If so, read this important information regarding DMV hearings and how they are separate from your criminal court matter. Contacting DMV to request a DMV hearing can help you - see how.
Tina M. Barberi
September 16, 2015
Traffic
Traffic ticket lawyer in Fresno will be able to represent you so you are not found guilty of your traffic citation in traffic court.
Can I Pay My Fine in Pennies? Legally Weird
Have you really had it with the police and courts and want to play a prank by paying with pennies? If so, think again. Learn why it is not a good idea and the real tips on how to stick it to the police officer and the courts.
Tina M. Barberi
August 18, 2015
Traffic
A drivers license is important in Fresno. Avoid a traffic citation and a large fine when hiring a traffic defense lawyer in Fresno.
What You Need to Avoid When You Get a Traffic Ticket
Suspended licenses are very serious in Fresno and it is important to avoid them at all costs. Learn how to keep your license before it gets suspended and find out how we can help you get it back when it is already suspended.
Tina M. Barberi
July 7, 2015
Traffic
DUI lawyers can fight the drunk driving charges against you to keep you from getting DUI probation in Fresno.
Caution: Don't Even Think About Driving with Alcohol!
If you have received a conviction for a DUI, it is important to not take it lightly. See tips and tricks for being on DUI probation in order to stay out of court and jail. You may be surprised how easy it is to violate probation.
Tina M. Barberi
May 18, 2015
Traffic
Lawyer Barberi will defend your cell phone ticket in Fresno County to get you the dismissal you deserve in traffic court.
Best Ways to use Your Phone without Breaking the Law!
A recent court decision from the California Court of Appeal just ruled that you can use your cell phones when driving in limited circumstances. Learn how the new case can help you fight a traffic ticket for using your phone.
Gonzalo Quezada
May 14, 2015
Traffic
Illegal search and seizure by police in Fresno? Get help today with a criminal defense attorney to fight the criminal charges against you.
Any rights in our car? US Supreme Court Says No!
Are you safe from police intrusion? Find out what the Supreme Court said about officers and their mistakes. If the officer can be wrong about the law, then why can't we? See how you can protect yourself when driving in Fresno.
Tina M. Barberi
April 20, 2015
Traffic
Everyone needs insurance, but an SR-22 is only required when you do not win your DMV hearing after a DUI arrest.
SR-22 Auto Insurance after Fresno DUI
What is an SR-22 and do you need it? If your license is suspended because of a DUI, you will be required to have an SR-22 before a license is issued. But you may avoid the SR-22 requirement by reading this post first.
Tina M. Barberi
March 16, 2015