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.
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?
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.
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.
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.
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.
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.
