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Can i beat the Administrative Per Se or Administrative hearing with the DMV if i won my Criminal DUI case.

Pinetop, AZ |

I was charged with a DUI of a BAC .084. It was determined that the stop was illegal in court and the evidence was suppressed. I pulled into a parking lot at which point a police officer pulled in about 1 min later and turned on his lights. The judge determined that the officer had no right to stop me since there was no crime being commited. Thusly all the charges have been dropped. However i have not heard from the DMV for 4 months now. I am aware that an APS will not just go away. How long does the DMV have to contact me for the APS and can i win it on those details.

Attorney Answers 2


  1. The DMV is notoriously slow in getting hearings set so I expect that you will hearing about the hearing at some point. The admin per se hearing is completely separate from the criminal case. If the officer shows up to the hearing, it is likely that you will end up with the suspension because the DMV does not take into consideration issues involving suppression. The standard for the DMV hearing is much lower than a criminal case and it only needs to be shown that you were driving, suspected of DUI, arrested and blew over a .08. If that can be shown then you will be stuck with the suspension. However, after you go through the suspension period, that suspension can be removed from your driving record if you show the DMV that the criminal case was dismissed. Also, sometimes the officers don't show up for the DMV hearings. If he doesn't show up, ask the DMV judge to void the suspension. Good luck.


  2. Ms. Curry explained this perfectly well, but I will try to add some notes to the discussion.

    It's called MVD here (another example of Arizona doing things goofy, they call it MVD instead of DMV like the rest of the country).

    The standard of proof at the MVD hearing is "preponderance of the evidence." If it's more likely true than not that you were driving under the influence, then the judge will find that the state has met its burden at the MVD hearing and suspend your license.

    The standard of proof at the DUI criminal court is supposed to be "beyond a reasonable doubt." This means that, if you go to trial, the jury is supposed to only find you guilty if they are firmly convinced of your guilt, with no reasonable doubts about it.

    So, due to these differing standards, it is possible to win DUI criminal trial but lose the MVD hearing, even with essentially the same evidence. Remember O.J. Simpson? He won his criminal trial (beyond a reasonable doubt standard), but he lost his civil trial (preponderance of the evidence standard).

    Why the difference? With criminal charges, you have life and liberty at stake, so there is a higher standard of proof. With civil cases, like an MVD hearing, you only have money or property (or a driving privilege) at stake. Some folks value those things more than life or liberty, but that's the general idea.

    Additionally, at the MVD hearing, evidence is allowed that would not be allowed in a criminal trial. Hearsay is allowed, and heavily utilized, at an MVD hearing.

    If you show up for your hearing and the officer is a no-show, then the court has to find that the state failed to meet its burden of proof, since no proof was even offered. But I have heard of people choosing the suspension anyway instead of being put into the SR-22 "high risk" insurance pool. I didn't see that first-hand, so I'm relying on hearsay, (sort of like in an administrative hearing). In a situation like that, I guess it just goes to show that, when it's all said and done, it's really banks and insurance companies who have the final word on most things.

    NONE OF THE INFORMATION PROVIDED HERE IS MEANT AS, NOR INTENDED AS LEGAL ADVICE. THE LAW IS CONSTANTLY CHANGING AND INFORMATION DISCUSSED IN THIS BLOG CAN BECOME OUT-DATED WITH THE PASSAGE OF TIME. IF YOU HAVE A LEGAL ISSUE AND NEED LEGAL ADVICE, CALL 623-936-1901 FOR A CONFIDENTIAL LEGAL CONSULTATION WITH AN ATTORNEY.

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