In most situations where the DMV orders a discretionary action against a person’s driving privilege, that person has a right to an administrative hearing before DMV. Below are important facts regarding DMV hearings. Further below are important facts regarding DMV hearings involving a driver that was allegedly driving under the influence of a controlled substance.
Purpose of DMV Hearings
To contest the discretionary action and to review the evidence supporting it. The purpose of the hearing is to provide you with an opportunity to be heard and to present relevant evidence or testimony on your behalf regarding an action taken or the intent to take action against your driving privilege by the DMV.
How to Obtain a Hearing?
A person must request a hearing within ten days of receiving personal service notice of the action against the driving privilege or 14 days from the date the notice is mailed. If you do not make a timely request, your right to a hearing will be lost. It’s important to read all of the documents that are personally provided or mailed to you by the DMV. These documents tell you the issues involved in your case, what deadlines you must meet, and your rights that apply in the administrative hearing process. The hearing is limited to those issues listed in the documents.
How are Hearings Handled?
The hearings are tape recorded and are conducted by telephone or in person. The hearing is held before a Driver Safety Hearing Officer of the department. At the hearing, the driver is informed of the legal grounds for the action, and has the opportunity to review and challenge the evidence of the department, and to present evidence, witnesses, and testimony to persuade the department to modify or rescind the action. The rules that control these hearings are found in the Vehicle Code, the Government Code, and in various Appellate and Supreme Court rulings.
Evidence at DMV Hearings
Make a verbal or written request to review and obtain a copy of DMV’s evidence regarding your case. This is known as discovery. Your written or verbal request must be made prior to your hearing and must be submitted to DMV at least 10 days prior to the date of your hearing. However, in some cases, DMV will automatically provide you with this information, the discovery. Please not that if you do not request a hearing, you are giving up your right to review the evidence DMV will consider when making a decision in your case.
How are Records Obtained From Agencies?
You have the right to subpoena relevant records or other documents, photos, etc. to be produced on your behalf at the hearing. Subpoenas are available online at www.dmv.ca.gov/forms/formsds.htm or at any DS Office. Someone other than you must serve the subpoenas.
How to Subpoena a Witnesses?
Although your witness(es) may voluntarily attend your hearing, a subpoena protects your right under the law to compel the attendance of any witness. For any witness you subpoena on your behalf, you are required to pay all witness fees and any mileage to the hearing location. If you know a witness requires special accommodation, please contact DMV as soon as possible. Subpoenas are available online at www.dmv.ca.gov/forms/formsds.htm or at any DS Office. Someone other than you must serve the subpoenas.
How is Evidence Admitted?
Any evidence you present must be relevant to your case. Evidence can be presented in the form of sworn documents, medical records, accident reports, photographs, or other relevant items. Evidence can also be sworn testimony taken under oath. On the date of your hearing, be prepared to bring any witness or written evidence from any witness who knows the specific issues involved in your case. Your witness(es) should be prepared to answer any questions raised by the hearing officer. Please note that any evidence presented on your behalf cannot be returned to you because it becomes part of the official administrative record maintained by DMV.
Legal Rights at DMV Hearings
Are Interpreters Available?
Yes, if you or a witness needs a sign or language interpreter, immediately contact DMV in order to make arrangements for an interpreter.
Are Attorneys Available?
No, you have a right to representation but must retain an attorney at your own expense. Make sure to contact your attorney in advance, to review the evidence against you before the DMV hearing.
DMV can base its case only on written documents, without presenting any witnesses. If you wish to question someone who either prepared a document, or someone who is listed on a document that will be used as evidence, your attorney will be able to subpoena that person.
At the hearing your attorney will present evidence and witnesses on your behalf and cross examine the testimony of any witness for the DMV.
What Happens if You Cannot Attend Your Hearing?
If you cannot attend your hearing on the scheduled date and time, you must contact DMV prior to the hearing, within 10 working days of the time you know, or should have known you need a continuance. You may have to file a written statement indicating the reasons you cannot appear. DMV will grant the continuance after 10 working days if you are not responsible for causing the delay and made a good faith attempt to prevent the delay. If a continuance has not been granted and you do not attend your hearing, DMV will proceed with the hearing in your absence.
Decision at DMV Hearings
Following the hearing, the Driver Safety Hearing Officer will make a decision to uphold, modify, or rescind the DMV action. If a time period for an action against your driving privilege is specified in the California Vehicle Code, the hearing officer cannot change the length of the action.
How and When Will You Be Notified of the Decision?
You will be notified in writing of the hearing officer’s decision even if you do not attend your hearing. The time it takes to make a decision depends on the issues being addressed, the amount of evidence presented, and the testimony presented by any witness.
Can You Appeal DMV’s Decision?
If you disagree with the hearing officer’s decision, you may have the right to request a department review of the decision, as well as the right to appeal the decision to superior court. Requests for a department review, or an appeal of the decision in superior court must be made within a certain time period depending on the laws affecting your case. The time periods for appeal and other specific information concerning your appeal rights are provided on the notice advising you of the hearing decision.
DMV Hearings and DUI’s
DUI Trial vs. DMV Hearing:
A San Diego DMV hearing for a possible license suspension is like a mini-DUI trial without a jury, but with much different San Diego DMV rules, San Diego DMV laws and San Diego DMV procedures. The San Diego DUI / DMV hearing is presided over by a DMV hearing officer, aka a DMV Driver Safety Officer – rather than a trained California Judge – an employee of the DMV not licensed in law but who acts as the three-headed collector of evidence, the prosecutor and the judge.
Requesting a DMV Hearing:
A San Diego DUI attorney has just 10 CALENDAR DAYS after the DUI arrest to make a request in writing to the San Diego DMV Driver Safety Office in order to timely demand a hearing to determine whether or not the California DMV will suspend or revoke your license or driving privilege. Please note that the timing is critical. You waive your right to a hearing if a Request for Hearing is made after the 10 day deadline is up. California DMV will automatically suspend your privilege to drive from 4 months to 1 year unless your local San Diego DMV lawyer timely contests the action.
If it is the 10th & final day to request a hearing but your San Diego DMV attorney has not yet been retained within 10 days of the arrest, you should contact the San Diego Licensing Operations Division Office yourself, request a five day extension so you can get a San Diego California DUI attorney specialist. Alternatively, if your request for an extension is denied by the San Diego DMV supervisor, request an In-person hearing, the Discovery (evidence), a Stay (stop) of the Suspension, and the Name of the Hearing Officer/Driver Safety Officer.
The San Diego DMV will probably not be able to schedule a hearing before your 30 day temporary license expires. Your San Diego DUI Lawyer / San Diego DMV lawyer will request a stay of suspension and an extension of the temporary license until a San Diego DMV hearing is completed and a decision is rendered by San Diego DMV.
The Driver Safety Officer's Role at DMV DUI Hearing:
The San Diego Driver Safety Officer gathers and offers evidence in the form of documents and/or witnesses. The Driver Safety Officer usually offers the San Diego drunk driving / DUI police report, DMV records, San Diego DUI test record/alcohol report, and the crux of DMV’s prima facie case – the San Diego DUI officer’s sworn statement entitled a “DS 367″ which by law must include all information relevant to the enforcement action. (California Vehicle Code section 13380)
Legal Representation at DMV DUI Hearing:
Due to the peculiar nature of San Diego DMV hearings and the absence of a real and independent DMV judge to offer some protection, you are strongly advised not to try to represent yourself. Because these are not San Diego DUI criminal proceedings, San Diego County public defenders are unavailable. A DUI lawyer’s defenses at an APS hearing are technical and specialized, much different than in a San Diego Superior Court DUI criminal case. Frequent San Diego DUI / DMV proof problems – as well as legal, procedural and bureaucratic issues – are possible grounds for a set aside of the suspension action and retaining one’s driving privileges.
DMV Has the Burden of Proof:
San Diego California DMV has the burden of proof – based on the standard of a preponderance of evidence – as to all the DUI issues (set forth on the back of the original pink ORDER OF SUSPENSION served at time of arrest/detention). With no Fifth Amendment constitutional right at this quasi-civil administrative per se hearing, your San Diego DMV attorney usually will not want you to be present at the hearing because otherwise the Driver Safety Officer can call you as a witness and force you to testify against yourself if you ill-advisedly appear. Your San Diego DMV lawyer is normally attacking DMV’s evidence, or lack thereof; the driver’s presence may interfere with that well-recognized strategy.
Notification of Decision:
The San Diego DMV Driver Safety Officer’s decision will normally be mailed a few days or even weeks after the hearing. A San Diego DMV suspension can be set aside or sustained. If the San Diego DMV suspension is sustained, the decision can be appealed to the DMV in Sacramento and/or to the San Diego Superior court by filing a San Diego DMV petition for writ of mandamus.