California Administrative Per Se Law
The statutory framework of the administrative per se law was described in detail in the leading case of Lake v. Reed (1997) 16 Cal.4th 448, 454-455, and recently reiterated in MacDonald v. Gutierrez (2004) 32 Cal.4th 150, 155-156.
"Under the administrative per se law, the DMV must immediately suspend the driver's license of a person who is driving with .08 percent or more, by weight, of alcohol in his or her blood. The procedure is called 'administrative per se' because it does not impose criminal penalties, but simply suspends a person's driver's license as an administrative matter upon a showing the person was arrested for driving with a certain blood-alcohol concentration, without additional evidence of impairment. The express legislative purposes of the administrative suspension procedure are: (1) to provide safety to persons using the highways by quickly suspending the driving privilege of persons who drive with excessive blood-alcohol levels; (2) to guard against erroneous deprivation by providing a prompt administrative review of the suspension; and (3) to place no restriction on the ability of a prosecutor to pursue related criminal actions.
"The administrative per se laws were deemed necessary due to the time lag that often occurs between an arrest and a conviction for driving while intoxicated or with a prohibited blood-alcohol concentration. During this interim period, arrestees who would eventually be convicted of an intoxication-related driving offense were permitted to continue driving and, possibly, endangering the public. Moreover, without administrative per se laws, persons with extremely high blood-alcohol concentration levels at the time of arrest could escape license suspension or revocation by plea bargaining to lesser crimes or entering pretrial diversion. Thus, by providing for an administrative license suspension prior to the criminal proceeding, the law affords the public added protection. "
The administrative per se procedure is, in short, an expedited process, and for good reasons, as explained in Bell v. Department of Motor Vehicles (1992) 11 Cal.App.4th 304, 312:
"The need for the administrative per se statutes arose from the fact that 'the legal process leading to imposition of a suspension sometimes took years from the time of arrest.' 'Many drivers with high chemical test results failed to have sanctions taken against their driving privilege because of reduction in charges as the result of "plea-bargaining" or pre-trial diversion programs.' In enacting the administrative per se law, the Legislature intended to establish 'an expedited driver's license suspension system' that would 'reduce court delays. The suspension will be swift and certain and will be more effective as a deterrent ... .' "
This is how the procedure works.
When a driver is arrested for driving under the influence and is determined to have a prohibited blood-alcohol content (BAC), the arresting officer or the DMV serves the driver with a "notice of an order of suspension or revocation" of his or her driver's license, advising that the suspension will become effective 30 days from the date of service. (Veh. Code, 13353.2, subds. (b) & (c), 13353.3, subd. (a).) The notice explains the driver's right to an administrative hearing before the effective date of the suspension if the driver requests a hearing within 10 days of receipt of the notice. (Id., 13353.2, subd. (c), 13558, subd. (b).)
After the driver is served with the notice, the DMV automatically reviews the merits of the suspension to determine whether the peace officer had reasonable cause to believe that the driver had been driving a motor vehicle under the influence of alcohol, the driver was placed under arrest, and the driver had a BAC of 0.08 percent or more at the time he or she was driving. (Veh. Code, 13558, subd. (c)(2), 13557, subd. (b)(2).) This determination must be made prior to the effective date of the suspension, although the DMV may dispense with the automatic review if the driver requests a hearing. (Id., 13557, subds. (c), (e).)
The administrative per se hearing is presided over by either the director of the DMV, a hearing board, or in the usual case--and as here--a hearing officer. (Veh. Code, 14104.2, subd. (a) "Any hearing shall be conducted by the director or by a hearing officer or hearing board appointed by him or her from officers or employees of the DMV."; Reirdon v. Director of Dept. of Motor Vehicles (1968) 266 Cal.App.2d 808, 811 72 Cal.Rptr. 614; Serenko v. Bright (1968) 263 Cal.App.2d 682, 690; Spurlock v. Department of Motor Vehicles (1969) 1 Cal.App.3d 821, 829.)
Hearing officers are typically DMV employees who need not have any legal training whatever. Thus, hearings conducted by such hearing officers are in contrast to other proceedings arising under the Administrative Procedure Act, where the agencies employ administrative law judges to preside over the proceedings. (Gov. Code, 11502; 9 Witkin, Cal. Procedure (5th ed. 2008)
Administrative Proceedings, 58, p. 1176.) Such administrative law judges do have legal training: they must have been admitted to practice law in California for at least five years and have any additional qualifications prescribed by the State Personnel Board. (Gov. Code, 11502, subd. (b).)
The sole task of the hearing officer is to determine whether the arresting officer had reasonable cause to believe the person was driving, the driver was arrested, and the person was driving with a BAC of 0.08 percent or higher. If the hearing officer determines that the evidence establishes these three facts by a preponderance of the evidence, the license will be suspended. (Veh. Code, 13558, subd. (c)(1), 13557, subd. (b)(2), 14104.2, subd. (a); see generally Lake, supra, 16 Cal.4th at pp. 455-456; Gikas v. Zolin (1993) 6 Cal.4th 841, 846-847 25 Cal.Rptr.2d 500, 863 P.2d 745.)
The procedure is civil in nature and is independent from the criminal prosecution that might ultimately result in the imposition of penalties through the criminal justice system.