DMV Per Se Hearings: How They Differ From DUI Criminal Cases

“Administrative per se” hearings are license-suspension proceedings through the DMV that take place after a DUI arrest.

By , Attorney · University of San Francisco School of Law

In most states, the Department of Motor Vehicles (DMV) will automatically suspend the license of anyone who's arrested for a DUI and has a blood alcohol concentration (BAC) of .08% or more or refuses a blood or breath test. This automatic DMV action is often called an "administrative per se" suspension. Administrative suspensions are triggered by the DUI arrest—rather than a conviction in criminal court—and usually go into effect 30 days or so after the arrest.

A driver who wishes to contest an administrative per se suspension must promptly request a hearing. The driver typically has ten days (or less) to contact the DMV and do this.

Having received a request from a driver, the DMV will schedule an administrative per se hearing. The actual suspension is typically put on hold pending the outcome of the hearing.

Distinct But Related Proceedings

Of course—in addition to DMV proceedings—a DUI arrest normally leads to criminal charges. However, the timeline for the criminal case is different than that of DMV proceedings.

The DMV starts per se proceedings after receiving a document from the arresting officer indicating the driver was arrested for a DUI and had an excessive BAC or refused testing. In most states, this notification is sent electronically. So, the DMV receives it and starts per se suspension proceedings almost right away.

The criminal case, however, usually doesn't start until the prosecutor files charges in court. It often takes some time for this to occur. First, the arresting officer forwards the police report to the prosecution. Next, the prosecutor reviews the report. If the prosecutor believes the evidence is sufficient to prove the case, DUI charges are filed and the defendant's first court date is set. However, a prosecutor who isn't confident in the evidence might decide against filing charges. Prosecutors normally have a year from the time of arrest to make this decision—though they typically don't wait that long to make the call.

The DMV case goes forward whether or not the prosecution files charges in criminal court. So, an administrative suspension is possible even if the defendant is never convicted in court. (In some states, however, a criminal court acquittal voids an administrative per se suspension.)

If the defendant is convicted of a DUI in criminal court, as part of the sentence, the judge typically orders license suspension. So what happens if the defendant's license was already administratively suspended by the DMV? In most states, the two suspensions are allowed to overlap or time already completed on the first suspension is credited toward the second suspension. In other words, the driver won't have to complete two full suspensions periods.

Administrative Per Se Hearings Versus Criminal Trials

Administrative per se hearings share some similarities with DUI criminal trials. For instance, in both types of proceedings, the government has the "burden of proof"—meaning, it's up to the government to present sufficient evidence to prove the motorist was in violation of the law. Both types of proceedings also involve an opportunity for the two sides—the government and the driver—to present evidence.

However, there are also some important differences. For one, DMV hearings are far less formal than DUI trials. DUI hearings are usually conducted in small, private rooms at a DMV office and decided by hearing officers. These hearing officers normally aren't judges or attorneys and—apart from what's necessary to conduct the hearing—don't have any formal legal training or education. DMV hearings don't usually last more than an hour or so.

DUI trials, on the other hand, take place in criminal courtrooms that are open to the public. A judge presides over the case, and a jury decides whether the defendant is guilty. Depending on the circumstances, a DUI trial might take a full day or more to complete.

What exactly the government must prove is another point of differences between DMV hearings and DUI trials. At a DUI trial, the prosecution must prove all the "elements" of the DUI charge "beyond a reasonable doubt." In other words, the prosecution needs to present convincing evidence establishing the defendant was:

If not fairly certain of guilt, the jury is supposed to acquit the defendant.

In DMV hearings, however, the government (arresting officer) just needs to show the DUI stop and arrest were legal and the driver refused testing or had a BAC that exceeded the legal limit. And these things don't need to be proven beyond a reasonable doubt. The "standard of proof" in DMV hearings is a "preponderance of the evidence." Under this standard, the government just needs to prove the elements are more likely than not true—far less than what the harmless-beyond-a-reasonable-doubt standard requires.

Legal Representation in DMV Hearings

In criminal trials, you have an absolute right to an attorney. You can hire an attorney of your choice. And if you can't afford an attorney, the court will appoint one to represent you at the state's expense. (Appointed attorneys are typically from a public defender's office.)

With DMV hearings, there's no right to appointed counsel. So if you can't afford to retain a lawyer, you're basically left to your own devices. But representing yourself effectively at a DMV hearing can be difficult, and a misstep can negatively affect your criminal case. To be on the safe side, it's always best to have legal representation, whose job it is to protect your rights.

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