Rizio and Nelson California Law Blog

The DMV is required to bear the burden of proof in the Administrative Per Se (APS) hearing. The burden of proof states that there is more evidence balanced in favor of driving under the influence of alcohol. State law has mandated that the burden rests with the DMV to justify its order of driver’s license suspension.

There are only 3 issues that are legally relevant during an APS hearing. The DMV must prevail on all 3 issues in order for the suspension to be upheld. Therefore, if the DMV meets the burden of proof in only 2 of the issues, they must set aside the license suspension. The issues include the following 3 points typically:

1. Did the officer have reasonable cause to believe that the individual was driving a vehicle in violation of California Vehicle Code Sections 23152 or 23153?
2. Was the defendant arrested according to the confines of the law?
3. Was the defendant driving a vehicle with a BAC of .08% or higher?

The DMV relies on the paperwork submitted by the police officers who made the original DUI arrest. The paperwork is on pre-printed forms that the officer fills out detailing the specific facts of the arrest. The information generally includes the date and time of arrest, the probable cause for stopping and detaining the defendant, and the specific facts that support the officer’s finding of intoxication. If probable cause exists, then the resulting arrest was justified. There are four areas that are frequently cited to support a finding of intoxication and make up the probable cause determination needed to justify the license suspension.

1. Driving pattern
2. Physical appearance
3. Performance on field sobriety tests (FSTs)
4. Results of chemical tests.

The DMV makes their first appearance by showing at the APS hearing that the defendant drove with a BAC at or above .08%. Once the DMV makes such a showing, the burden then shifts to the defendant to dispute it. If the majority of the evidence supports the finding of intoxication, the DMV has successfully met its burden of proof. The DMV may do this by showing that any defendant arrested for DUI:

1. Takes a breath test which shows a BAC of 0.08% or higher OR 0.05% or higher if the defendant is under age 21, or
2. Takes a blood or urine test and the officer believes that the driver is at or above the 0.08% BAC OR 0.05% if the defendant is under age 21, or
3. Refuses to take or fails to complete a blood, breath, or urine test to determine his/her BAC.

If you or a loved one was arrested for DUI, please contact a skilled defense lawyer at the law offices of Rizio and Nelson immediately.