California's current driver's license suspension scheme (the so-called "Stop 'n Snatch" program) was enacted following the promise of federal highway funds in the Drunk Driving Prevention Act of 1988. The goal of the legislation was to take away the licenses of suspected drunk drivers at or near the time of their arrest and to insure a prompt suspension of their driving privileges. In practice, a person even suspected of DUI will lose her license automatically based solely on the opinion of the law enforcement officer.
Stop 'n Snatch
When an officer stops a motorist for suspected DUI, he usually snatches her driver's license and, on behalf of DMV, serves her with a document called an Administrative Per Se Suspension/Revocation Order and Temporary Driver License. Here is one.
This order suspends the motorist's driver's license and grants her driving privileges for thirty days, in theory long enough to complete the DMV suspension hearing process.
Ten Days to Request Hearing
If she acts within ten days, the motorist may also demand her own hearing and the chance to present evidence or to challenge the evidence against her. You may request a hearing by calling or writing any of the DMV Driver Safety Offices. A sample written hearing request is here.
The Oxnard branch is located at 4050 S. Saviers Road, Oxnard, California 93033. The telephone number is (805) 488-0863 and fax is (805) 488-3219.
The hearing you get is called an "administrative per se" (APS) hearing because it is administrative (not criminal) in nature and because it examines whether the motorist was "per se" intoxicated (driving with a BAC in excess of 0.08).
The motorist has a right to see all the evidence DMV intends to use against her at the hearing. Conversely, the motorist must advise DMV of any documents she intends to introduce at the hearing. If the motorist intends to use the sworn statement of an expert witness, she must provide it to DMV ten days prior to the hearing.
Because the motorist receives all of DMV's evidence in advance of the hearing, a skilled DUI attorney usually can predict how the hearing will go and what the decision will be.
In cases where there is a blood test or breath test, the DMV is usually entitled to presumptions that the test results are valid. (Yes, on top of everything else going against you, you have to prove your innocents at DMV.)
The only way in many cases to beat the presumption is to submit expert testimony by a forensic toxicologist. A skilled DUI attorney will have relationships with several toxicologists willing to review DMV cases and provide sworn statements where their opinions support the motorist.
In most cases it would be malpractice for an attorney not to suggest using an expert witness at a DMV hearing.
The APS hearing is conducted by a DMV "hearing officer" who serves as prosecutor, judge and jury (and expert witness where DMV records are introduced). Though rarely a lawyer, the hearing officer introduces all evidence against the motorist and then rules on all her objections to that evidence. This same hearing officer ultimately decides whether the suspension of the motorist's license will be upheld or set aside.
The issues to be decided at the hearing are whether or not
The officer had reasonable cause to believe the motorist was driving a vehicle with a BAC in excess of 0.08.
The motorist was lawfully arrested.
The motorist was, in fact, driving a vehicle with a BAC in excess of 0.08.
The hearing officer usually will send a written Notice of Decision within a week after the hearing. Here is an example of one.
If the hearing officer decides against you, you have the right to ask his or her superiors at DMV to review the decision and grant you a set aside if they find the decision was wrong. This decision can take up to 120 days, and your license will be suspended throughout that time, even if they decide you were right and overrule the hearing officer.
In practice we have found it rare that DMV overrules its own hearing officers; where alleged DUIs are concerned, the department is in the business of taking licenses away, not reinstating them.
Writ of Mandate
An often more effective way to overturn the hearing officer's decision is to sue DMV in court and ask a judge to lift the suspension of your license. The order you seek from the judge is called a "writ of mandate"; a writ is just an order. It's called mandate from the Latin tocommand because the writ "commands" DMV to reverse its decision.
There are two advantages to using the writ procedure over the departmental review. First, most judges will grant a stay of the suspension pending the hearing on the writ. Second, a judge is far more likely to be fair and impartial than is DMV when reviewing the decision of its own hearing officer.
We at the Santa Barbara DUI Center handle writs of mandate for other attorneys. If you are currently represented by another attorney and have lost your DMV hearing, feel free to ask your attorney to give us a call.
Main Office Three West Carrillo Street Suite 203 Santa Barbara, CA 93101 Tel (805) 966-0812 firstname.lastname@example.org