Understand Admin Per Se (APS) Suspensions

APS & BAC: The Four Combinations

Understand Admin Per Se (APS) Suspensions

The most commonly-imposed administrative suspension in California is the administrative per se (“APS”) suspension; APS suspensions happen when a driver’s blood alcohol concentration (“BAC”) is over the legal limit. That is, the BAC itself triggers the suspension regardless of whether or not the motorist’s driving was impaired. There are four types of APS suspensions:

  1. 0.01% for drivers under 21
  2. 0.08% drivers 21 and over
  3. 0.04% for drivers in a commercial vehicle, and
  4. 0.01% for drivers on DUI probation.

An admin per se suspension becomes effective 30 days after the motorist is served with the APS suspension order (usually by a cop making a DUI arrest) and lasts four months if a first offense or one year if there are any prior offenses during the ten-year look-back period.

Admin per se suspensions include the 21 And Over Excess BAC Suspension (0.08% or greater provided by Section 13353.2(a)(1)), the so-called Zero Tolerance Suspension for motorists 21 and under (0.01% provided by Section 13353.2(a)(2)), the Commercial Vehicle Excess BAC Suspension (0.04% provided by Section 13353.2(a)(3)) and the DUI Probation Suspension (0.01% provided by Section 13353.2(a)(4)).

A first offense APS suspension lasts four months (Section 13353.3(a)(1)), but a motorist may opt for a five-month work restricted license after 30 days. (Section 13353.7.) The work-restricted license requires enrollment in a “First Offender Alcohol Program,” also known as an A.B. 541 program after the Assembly Bill that established it. An APS suspension with one or more prior suspensions during the 10-year look-back period lasts one year (Section 13353.3(a)(2)(A)), but the motorist may be eligible for an ignition interlock restricted license after 90 days if they are also convicted of DUI. (Section 13353.3(a)(2)(B), Section 13352.)

Technically, your license is suspended as soon as the police officer confiscates your license and serves you with the Notice of Suspension/Revocation under Section 13380. However, there is a built-in 30-day stay of the suspension to give you time to request a hearing and make the suspension constitutional. Within five business days of the arrest or detention, the police officer must prepare a sworn statement of all the facts supporting the decision to serve the suspension/revocation order. (Section 13380.) (A late-prepared sworn statement may create a defense to the entire case.)

DMV is supposed to conduct an internal review of the report to decide if the suspension/revocation is warranted (Section 13557), but experienced DMV attorneys question whether a meaningful review ever takes place. DMV is supposed to rescind the suspension/revocation unless it finds three facts to be true (Section 13357(b)(3)):

  • The peace officer had reasonable cause to believe the motorist violated the DUI laws;
  • The motorist was placed under arrest or lawfully detained;
  • The motorist had been driving with one of four prohibited BACs.

These are the same three issues that DMV must establish if you request a hearing to challenge the suspension (Section 13358(c)(2)), and they are the same three issues that we take to a superior court judge in a writ of mandate action.

VC 13352, VC 13353.2, VC 13353.3, VC 13353.7, 13557, 13358

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