The DMV has the burden of proof in the Administrative Per Se (APS) hearing. The burden of proof is that there is more evidence weighted towards driving under the influence of alcohol than not. State law has mandated that the burden rests with the DMV to justify its order of suspension.



There are only 3 issues that are legally relevant in an APS hearing. The DMV must prevail on all 3 issues. Thus, if the DMV meets the burden of proof on only 2 of the issues, the DMV must set aside the license suspension. The issues are:

1.Did the officer have reasonable cause to believe the individual was driving a vehicle in violation of California Vehicle Code Sections 23152 or 23153?

2.Was the defendant lawfully arrested?

3.Was the defendant driving a vehicle with a BAC of .08% or over?

The DMV relies on the paperwork submitted to it by the police who made the DUI arrest. The paperwork is on preprinted forms which the officer fills out, detailing the specific facts of the arrest. The information detailed includes the date and time of arrest, the probable cause to stop and detain the defendant, and the specific facts which support a finding of intoxication. If probable cause exists, then the arrest was justified. There are four areas which are often cited to support a finding of intoxication, that make up the probable cause determination needed to justify the license suspension

1.Driving pattern

2.Physical appearance

3.Performance on field sobriety tests (FST’s)

4.Results of chemical tests.

The DMV makes a prima facie showing at the APS hearing that the defendant drove with a BAC at or above .08%. Once the DMV makes such a showing, then the burden shifts to the defendant to dispute that showing. If the preponderance of the evidence supports a finding of intoxication, then the DMV has successfully met its burden of proof. The DMV may do this by showing that any person arrested for driving under the influence:

•Takes a breath test which shows a Blood Alcohol Concentrate (BAC) of 0.08% or more OR 0.05% or more if under age 21, or

•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 under age 21, or

•Refuses to take or fails to complete a blood, breath or urine test of his or her BAC.