DMV & Licenses
DMV Administrative Per Se Hearing After a California DUI Arrest
After a DUI arrest in California, you have 10 days to request a DMV Administrative Per Se hearing or your license will be automatically suspended. Learn what the hearing involves, how to request it, and what an attorney can do to protect your driving privilege.
By Michael P. Kade — Former LAPD Officer & Criminal Defense Attorney · Updated
Educational purposes only — not legal advice. This article provides general information about California DUI law and does not create an attorney-client relationship. Consult a licensed attorney for advice specific to your situation.
Key Takeaways
- —You have 10 days from arrest to request a DMV APS hearing or your license is automatically suspended
- —The hearing is separate from your criminal court case — you must request it independently
- —An attorney can subpoena the arresting officer and challenge the evidence at the hearing
- —Winning the hearing keeps your license valid while the criminal case proceeds
- —Even if you lose, an attorney may be able to obtain a restricted license or IID-restricted driving
When a California law enforcement officer arrests you for DUI and takes your driver's license, they hand you a pink DS-367 form. That document is both a notice of suspension and a 30-day temporary license — but it starts a critical 10-day clock. If you or your attorney do not call the DMV's Driver Safety Office within 10 days of the arrest and formally request an Administrative Per Se (APS) hearing, the DMV will automatically suspend your license on day 31 without any hearing at all.
What Is an Administrative Per Se Hearing?
An APS hearing is a civil administrative proceeding conducted by the California Department of Motor Vehicles — completely separate from your criminal DUI case in court. The DMV hearing officer acts as both judge and prosecutor. The DMV's burden is to prove three things by a preponderance of the evidence: (1) the officer had reasonable cause to believe you were driving under the influence; (2) you were lawfully arrested; and (3) your blood alcohol concentration (BAC) was 0.08% or higher at the time of driving, or you refused a required chemical test. Vehicle Code § 13353.2 governs the standard suspension; § 13353 governs refusal suspensions.
How to Request the Hearing
Call the DMV Driver Safety Office listed on your pink DS-367 form within 10 days of your arrest. Clearly state that you are requesting an APS hearing and ask whether the DMV will issue a stay — meaning the suspension is put on hold — while the hearing is pending. Get the name of the person you spoke with and the date and time of the call. If you retain an attorney, they can make this call on your behalf. The hearing is typically held by telephone, though in-person hearings can sometimes be arranged.
What Happens at the Hearing
The DMV hearing officer reviews the officer's sworn DS-367 statement, the chemical test results, and any other evidence submitted. Your attorney can subpoena the arresting officer to testify, cross-examine them about the traffic stop, the field sobriety tests, and the administration of the breath or blood test. Attorneys commonly challenge whether the officer had lawful cause to stop your vehicle, whether the arrest was lawful, whether the breath machine was properly calibrated and maintained, and whether Title 17 of the California Code of Regulations — which governs how chemical tests must be administered — was followed correctly.
Possible Outcomes
If the DMV rules in your favor, the suspension is set aside and your license remains valid. If the DMV upholds the suspension, a first-offense suspension for a BAC of 0.08% or higher is typically four months. However, California law allows eligible drivers to install an ignition interlock device (IID) and obtain a restricted license that permits driving to work, school, and DUI programs. An experienced DUI attorney can advise you on IID eligibility and help you get back on the road as quickly as possible.
Penalties at a Glance
| Offense / Situation | Potential Penalty |
|---|---|
| First offense — BAC 0.08%+ | 4-month suspension; IID restricted license available |
| First offense — refusal | 1-year suspension; no restricted license |
| Second offense within 10 years — BAC 0.08%+ | 1-year suspension |
| Second offense — refusal | 2-year revocation |
| Third or subsequent offense — refusal | 3-year revocation |
Penalties shown are general ranges. Actual sentences depend on the specific facts of your case.
How Attorney Kade Defends These Cases
- —Challenge whether the officer had reasonable cause to initiate the traffic stop
- —Subpoena the arresting officer and cross-examine them on the arrest procedure
- —Attack the calibration and maintenance records of the breath testing device
- —Identify Title 17 violations in how the chemical test was administered
- —Challenge the chain of custody if a blood sample was drawn
- —Argue that the BAC was rising at the time of the test and was below 0.08% while driving
- —Seek a stay of suspension so you can drive while the hearing is pending
Frequently Asked Questions
You have 10 days from the date of your DUI arrest to call the DMV Driver Safety Office and request an Administrative Per Se (APS) hearing. If you miss this deadline, the DMV will automatically suspend your license on day 31 without any hearing.
No. The DMV Administrative Per Se hearing is a separate civil proceeding conducted by the DMV — completely independent of your criminal DUI case in court. You must request the DMV hearing separately; winning or losing in court does not automatically affect the DMV outcome, and vice versa.
Yes. A DUI attorney can request the hearing on your behalf, subpoena the arresting officer, cross-examine witnesses, and challenge the evidence — including the calibration of the breath machine and compliance with Title 17 of the California Code of Regulations.