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Administrative Per Se Law (APS)

By
James Parker
/
July 16, 2023
Last reviewed by
/
August 16, 2023

What is Administrative Per Se Law? 

The administrative per se law (APS) requires the department of motor vehicles (DMV) to take action when people drive under the influence of alcohol. Under the law, the DMV is required to suspend the license of anyone who drives with a blood alcohol content (BAC) above the legal limit, which is .08 for every state under the per se law. 

The DMV must also suspend the license of anyone who refuses to take a BAC test or when anyone under the age of 21 has a BAC of .01 or higher. Some states set the limit for those under 21 at .02 or higher. 

Key Takeaways

  • The administrative per se law requires the DMV to immediately suspend the license of anyone driving under the influence of alcohol. 
  • The legal limit for those under 21 is .01 or .02, depending on the state; the legal limit for those 21 and older is .08. 
  • The law also requires licenses of those suspected of drunk driving who refuse to take a test to be suspended.

Consequences and Controversies Surrounding Administrative Per Se Law

The administrative per se law (APS) has proven to be a crucial tool in curbing drunk driving incidents across the United States since its enactment in 1990. By requiring the Department of Motor Vehicles (DMV) to take swift action against individuals driving under the influence of alcohol, the law aims to enhance road safety and deter potential offenders. However, the APS law has also sparked debates and controversies surrounding its implementation, particularly regarding the strictness of BAC limits and the suspension process.

One of the key debates surrounding the APS law is the legal limits for blood alcohol content (BAC), especially for drivers under the age of 21. While the standard limit is set at .08 for drivers aged 21 and older in all states, the limits for underage drivers vary, with some states adopting a lower threshold of .01 and others at .02. Critics argue that a BAC threshold as low as .01 may lead to overly harsh penalties for young drivers who might not necessarily be significantly impaired. Advocates, on the other hand, contend that a zero-tolerance approach is necessary to protect young and inexperienced drivers, given the higher risk of accidents associated with alcohol consumption.

How the Administrative Per Se Law Works 

Enacted in 1990, the per se law allows for immediate action to be taken when someone is arrested for driving under the influence (DUI). While some states were slower to enact the law, every state has followed the administrative per se law since 2005. When a driver has a BAC above the legal limit or refuses to take a BAC test, their license is revoked or suspended. 

In most cases, the suspension takes effect 30 days after the arrest. The arresting officer will confiscate the driver’s license and issue them a temporary 30-day license.   

After an administrative per se suspension, a driver can contest their license suspension. In most states, they have 10 to 30 days to request a hearing. They may be able to have their suspension delayed until their hearing takes place. An administrative per se hearing takes place separately from any hearings resulting from criminal charges related to the arrest. 

“Per se” is Latin for “by itself,” which means that a BAC above the legal limit by itself makes a driver guilty of driving under the influence. They do not need to commit any other traffic violations or offenses to have their license revoked. For example, a person may be arrested for DUI under the per se law after being pulled over for a broken tail light or when passing through a police checkpoint. 

Can Drivers Get a DUI with a BAC Below the Administrative Per Se Law Limits? 

Yes, drivers can be convicted of a DUI even if their BAC is below .08. As previously stated, drivers who are under the age of 21 can get a DUI if their BAC is .01 or above. 

Additionally, drivers can be convicted of a DUI if the arresting officer can prove they were impaired, even if their level was below .08. This might happen if a driver fails a field sobriety test or if a police officer’s body cam clearly shows erratic or unsafe behavior.

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