Many people who are arrested on suspicion of driving under the influence often do not know that they, or their attorney, must schedule an administrative per se hearing (A.P.S.) with the California Department of Motor Vehicles.
The hearing must be scheduled within 10 days from the time of the arrest. If it is not, your license will automatically be suspended. Therefore, it is important to speak to an attorney immediately following a DUI arrest so that he or she may schedule a hearing or, at least, schedule a hearing on your own.
Once scheduled, you or your attorney can request to conduct the hearing in-person or over the phone. If you hire an attorney, some factors that he or she will consider in determining whether to conduct an in-person hearing or an over-the-phone hearing is how well you present yourself in person and whether physical or witness evidence is important to the case. In my experience, most attorneys opt to conduct the hearing over the phone.
The DMV will be sent a DS 367 report before the hearing. The report is the DMV equivalent to a police report. The arresting officer writes up a report that will contain only enough information to allow the DMV hearing officer to secure the suspension. Usually, this is the only piece of information the DMV hearing officer will use in determining whether to suspend your license.
The hearing itself is a rather one sided affair. The DMV hearing officer is an employee of the DMV. He is not a lawyer who knows the rules of law or evidence, yet during the hearing, they act as prosecutor and judge. For example, you or your attorney may rule on his own objection. Or, as in the recent case of my own, the DMV hearing officer may summarily overrule all objections of your or your attorney in one fell swoop.
While it is always important to conduct the DMV A.P.S. hearing, in reality, they are unsuccessful more often than not. Unfortunately, a loss at the DMV A.P.S. hearing means that the only way that a suspension will be set aside is if you obtain an acquittal at trial. If your case gets dismissed and you lose the A.P.S. hearing, your license will still be suspended. On the chance that you do win the A.P.S. hearing, your license will still be suspended if you eventually plead guilty or lose at trial.
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