What is an Admin Per Se Hearing?
An Admin Per Se hearing is a civil proceeding conducted by the Arizona Department of Transportation's Motor Vehicle Division (MVD). Its primary purpose is to assess whether a driver's license should be suspended after a DUI arrest, independent of any criminal court proceedings. This administrative action is authorized under Arizona Revised Statutes § 28-1385.
Scope of the Admin Per Se Hearing
The Admin Per Se hearing focuses on specific issues to determine the validity of a license suspension:
Reasonable Grounds for Arrest: The hearing examines whether the arresting officer had reasonable grounds to believe the individual was driving or in actual physical control of a vehicle while under the influence of alcohol or drugs, as defined in § 28-1381.
Lawful Arrest: It assesses whether the individual was lawfully arrested for a DUI-related offense.
Test Results: The hearing considers whether the individual submitted to a blood, breath, urine, or other bodily substance test, and if so, whether the results indicated:
An alcohol concentration of 0.08 or more.
An alcohol concentration of 0.04 or more if operating a commercial vehicle.
The presence of any drug listed in § 13-3401 or its metabolite, unless the individual has a valid prescription.
Refusal to Submit to Testing: If the individual refused testing, the hearing evaluates whether they were informed of the legal consequences of refusal, as required by law.
It's important to note that the Admin Per Se hearing does not address the criminal aspects of a DUI charge; it solely determines the administrative action regarding driving privileges.
Case Example: Challenging a Suspension with a BAC Below 0.08
Consider a scenario where an individual is arrested on suspicion of DUI, but subsequent testing reveals a blood alcohol concentration (BAC) of 0.07, below the legal limit of 0.08. In this case, the individual can argue that the license suspension should be voided based on the following points:
Statutory Threshold Not Met: Arizona law stipulates that a license suspension is warranted if the individual's BAC is 0.08 or higher. Since the test result is below this threshold, the basis for suspension is invalid.
Lack of Evidence for Impairment: A BAC below 0.08 suggests that the individual was not legally impaired, undermining the justification for suspension.
Due Process Considerations: Suspending a license without meeting the legal BAC threshold violates due process rights, as the suspension lacks a lawful foundation.
In such instances, presenting these arguments during the Admin Per Se hearing can lead to the suspension being overturned.
Requesting an Admin Per Se Hearing
Upon arrest for a DUI offense, the arresting officer typically serves the individual with an Admin Per Se/Implied Consent Affidavit, which includes an order of suspension effective 15 days from the date of service. The individual has the right to request a hearing to contest the suspension, but this request must be submitted within 15 days of receiving the notice. Failure to request a hearing within this timeframe results in automatic suspension of the driving privileges.
Conduct of the Hearing
The Admin Per Se hearing is conducted by an administrative law judge at the MVD's Executive Hearing Office. During the hearing, both the individual and the arresting officer may present evidence and testimony related to the issues outlined above. The standard of proof is a "preponderance of the evidence," meaning it must be more likely than not that the facts support the suspension.
Potential Outcomes
If the administrative law judge finds in favor of the individual, the suspension is voided, and driving privileges are reinstated. However, if the judge upholds the suspension, it typically becomes effective immediately or on a specified date. The individual may be eligible for a restricted driving permit after serving a portion of the suspension period, provided certain conditions are met, such as completing alcohol or drug screening.
Conclusion
Understanding the scope and procedures of an Admin Per Se hearing is crucial for individuals facing DUI charges in Arizona. By being informed of their rights and the legal standards involved, individuals can effectively navigate the administrative process and advocate for the retention of their driving privileges, especially in cases where the evidence does not meet the statutory thresholds for impairment.
