Matthew J. Ruff DUI/DWI Law Blog on Lawyers.com

An "APS" suspension is grounded in the vehicle code in California's widely used "implied consent" laws: the law provides that any person driving in this state is "presumed" to impliedly consent to chemical testing if he is suspected of drunk driving. Many legal experts have argued that the procedure violates the U.S. Constitution. First, there appears to be a presumption of guilt and lack of due process: the officer is judge, jury and executioner. Further, it has been argued that it constitutes "double jeopardy": that is, the individual is being charged with a criminal offense and punished (including a license restriction) in criminal court -- and then is accused in a separate proceeding and punished again with a license suspension. The courts, however, have used strained logic in concluding that one is criminal and the other administrative -- a DMV license suspension is simply an "administrative sanction", not a "punishment"!

The APS hearing is conducted by a DMV hearing officer who is an employee of the DMV. This individual, although not legally trained, will act as the "judge" -- and also as the prosecutor! He or she can, for example, rule on his own objections. The hearing is conducted like a mini court trial, but without jury and with somewhat different rules of evidence. The defenses tend to be more technical than in court, with procedural and bureaucratic errors often the grounds for a "set-aside" of the suspension. Because of the technical nature of these hearings and the lack of an independent judge, it is inadvisable to attempt to represent yourself. And because they are not criminal in nature, public defenders are unavailable. A DMV attorney on your side can at the very least level the playing field