Changes Coming to DMV Hearings

LA Criminal Defense Attorney

Those arrested for driving under the influence in California generally face two different processes following their arrest: A criminal case in court, and an administrative hearing with the DMV.  When a person is arrested for DUI, they have only 10 days to request a DMV hearing.  If they fail to do so, their license will automatically be suspended 30 days after arrest.  If a hearing is requested, no action will be taken against the driving privilege until there has been a hearing.  While suffering a DUI conviction in court will result in a driver's license suspension, it is also possible to have one's license suspended even if the DUI case is never filed, dismissed, or after an acquittal at trial.  This would happen if a motorist either does not request, or loses the DMV hearing.

Administrative Per Se hearings have long been criticized by defense attorneys and the public for their unfair format.  In essence, one person, the DMV hearing officer serves two functions: it is the hearing officer's job to put on the case against the driver on behalf of the department, AND also to then decide whether the department has met its burden.  This dual role - effectively as prosecutor and judge - has finally been declared by an appeals court to violate Due Process.  The Constitution guarantees "due process" before a right or privilege can be taken away.  There has always been a process, but the process was deficient.

Currently, the DMV is adjusting to the decision, and will implement new procedures, not using one person as judge and prosecutor.  As of this writing, this is being done by having two hearing officers assigned to each case, one for each of the previous functions.  Ultimately, this may prove insufficient, and a new agency or division may need to be created, to ensure impartiality.

What is an Administrative Per Se DMV hearing?

An admin per se ("APS") hearing is a proceeding that takes place at the DMV (California Department of Motor Vehicles) after a DUI arrest.

The arrest in question is for when a person drives with a blood-alcohol level of .08% or higher (which is above the legal limit). The APS hearing gets its name from California’s “per se” DUI law found in Vehicle Code 23152b VC. This law makes it a crime for a person to:
1. operate a vehicle, and
2. do so with a blood alcohol concentration of .08 or higher.


What are the Changes to the APS Hearings?

A recent appeals decision declared that the old process for determining whether a person’s driver’s license would be suspended (which gave the hearing officer a dual role of advocate for the department of motor vehicles, and the judge who decides the outcome) violates due process.
In the case of CALIFORNIA DUI LAWYERS ASSOCATION v. CALIFORNIA DEPARTMENT OF MOTOR VEHICLES,

Facts: The (DMV) conducts Administrative hearings to determine whether automatic Suspension of a driver’s license is warranted after the driver has Been arrested for driving under the influence. At these hearings, the DMV mandates that the hearing officers simultaneously act As advocates for the DMV and as triers of fact. The DMV also Authorizes its managers to change hearing officers’ decisions, or Order the hearing officers to change their decisions, without Notice to the driver. Based on these practices, the California DUI Lawyers Sued the DMV and its director for injunctive and declaratory Relief. CDLA alleged three cause of action:

violation of section 42 United States Code 1983 affecting due process rights
violation of due process rights Under article I, section 7 of the California Constitution (state due Process)
“illegal expenditure of funds” under Code of Civil Procedure section 526a (section 526a).

CDLA alleged that both the lack of a neutral hearing officer, and the ex parte communications between DMV managers and hearing officers, violate drivers’ rights to procedural due process under the California and United States Constitutions.

Held:

1. Judgment shall be entered in favor of CDLA and against the DMV on CDLA’s first cause of action that is, it is violative of section 42 United States Code 1983 affecting due Process rights.
2. In favor of CDLA, and against the DMV on CDLA’s second and third causes of action, that is, it is violative of due process rights Under Article I, section 7 of the California Constitution and is a complete illegal expenditure of funds.

In addition to the permanent injunction regarding ex parte communications, the modified judgment shall also state: the DMV is permanently enjoined and restrained from having its APS hearing officers function as advocates for the position of the DMV in addition to being finders of fact in the same adversarial proceeding.

Conclusion:
DMV for hearings will be divided between Advocates and Triers of Fact. The duties of the Advocate include providing discovery to both the Trier of Fact and the Respondent. The Advocates will also be entitled to do things such as subbing and prepping witnesses, make opening statements, make objections, introduce evidence, cross-examine witnesses, and make closing arguments. In essence they can practice law.
Again, this process is still undergoing changes, but should instantly improve a driver's chances in DMV hearings.  If you or a loved one has been arrested for DUI and has questions about the process, contact us now for a FREE CONSULTATION 213-375-3775.

COMMON DUI DEFENSES:

Mouth Alcohol
Rising BAC
How Accurate are Breathalyzers?
Did Police Follow Proper Testing Procedure
Do Field Sobriety Tests Prove Anything
Alcohol/Drugs are NOT the Only Causes of Bad Driving

LA COUNTY DUI IMPORTANT LINKS:

California DMV
LA Sheriff's Inmate Locator 
Los Angeles Superior Court  
Los Angeles Police Department
Los Angeles Felony Bail Schedule
Los Angeles Misdemeanor Bail Schedule