G I

DMV Hearings

Bay Area Northern California DMV Hearing Attorney

DMV Defense

The suspension or revocation of a person’s driving privileges can severely impact the licensee’s job, family and ability to travel without restriction. Mr. Linscheid fights to preserve the driving privileges of individuals facing driver license suspensions ordered by the California Department of Motor Vehicles (DMV) as a result of arrests for driving under the influence, negligent operator, as well as medical suspensions hearings. Not only does Mr. Linscheid represent individuals at the DMV administrative per se (APS) hearings but Mr. Linscheid has successfully appealed DMV administrative per se decisions by filing requests for departmental review and appeals to the superior court.

Once a person receives notice of suspension from the Department of Motor Vehicles they have a limited time to request an administrative hearing. In the context of an arrest for driving under the influence a person only has ten (10) days from the date of arrest to request a hearing. In order to preserve your driving privileges a hearing must be requested within the specified time. A failure to request a hearing will, in most circumstances, result in an automatic suspension of your driving privileges.

Driving Under the Influence (DUI)

In addition to the filing of criminal charges by the district attorney in the superior court, the Department of Motor Vehicles (DMV) also takes action a licensee’s driving privileges through an administrative per se proceeding. The Department of Motor Vehicles is required to suspend the driving privileges of a licensee arrested for driving under the influence who either refuses to submit to a chemical (blood or breath) test or submits to a chemical test and has a blood alcohol concentration (BAC) over the legal limit. The legal limit varies amongst licensees: licensees under age 21 and those on DUI probation cannot drive with a blood alcohol concentration at or above 0.01%, commercial drivers are not permitted to drive with a blood alcohol concentration at or above 0.04% and noncommercial drivers cannot drive with a blood alcohol concentration at or above 0.08%.

If arrested for driving under the influence, the arresting officer will issue an order of suspension / revocation and a temporary license valid for only thirty (30) days from the date of the arrest. It is important to contact the local DMV driver safety office within ten (10) days of the date of the receipt of the order of suspension / revocation to request an administrative per se hearing to contest the suspension of your driving privileges. A failure to request a hearing within ten (10) days will result in an automatic suspension in thirty (30) days and a forfeiture of the opportunity to contest the license suspension.

San Francisco Bay Area and Sacramento Driver Safety Offices.

LOCATION TELEPHONE
Oakland (510) 563-8900
Sacramento (916) 227-2970
San Francisco (415) 557-1170
San Jose (408) 229-7100

When a hearing is requested with the Department of Motor Vehicles the licensee must request a stay of the suspension of their driving privileges and request a copy of the police reports and records pertaining to the arrest.

At the administrative per se (APS) hearing the hearing officer will consider the police reports and documents relating to the arrest to make a determination as to whether the licensee was driving under the influence. At an APS hearing a licensee, through their attorney, has the right to object to the admissibility of the documents relied upon by the hearing officer, present evidence and subpoena the arresting officer to testify at the hearing.

To suspend a licensee’s driving privileges for driving under the influence, the hearing officer must prove (Vehicle Code sections13558(c)(2) and 13557(b)(2)):

  1. The peace officer had reasonable cause to believe that the person had been driving a motor vehicle in violation of CVC §§23152 or 23153;
  2. That the person was arrested;
  3. That the person was driving a motor vehicle with a .08 or higher blood-alcohol level.

To suspend a licensee’s driving privilege when the licensee was under age 21 the hearing officer must prove (Vehicle Code section 13558(c)(2) and 13557(b)(2)):

  1. That the peace officer had reasonable cause to believe that the person had been driving a motor vehicle in violation of CVC §23136, 23140, 23152, or 23153;
  2. That the person was placed under lawful arrest or detained;
  3. That the person was driving a motor vehicle with a .01 or higher blood-alcohol level.

To suspend the driving privileges of a commercial driver, the hearing officer must prove (Vehicle Code section 13557 (b)(3)):

  1. That the peace officer had reasonable cause to believe that the person had been driving a commercial vehicle with.04 percent or higher blood-alcohol level;
  2. That the person was placed under lawful arrest; and
  3. That the person was driving a commercial vehicle with a .04 percent or higher blood-alcohol level.

To suspend the driving privilege of a licensee on DUI probation, the hearing officer must prove (Vehicle Code section 13557(b)(3):

  1. That the peace officer had reasonable cause to believe that the person had been driving with a .01 percent or higher blood-alcohol level;
  2. That the person was place under lawful arrest;
  3. That the person was on probation for driving under the influence and had a .01 or higher blood alcohol level.

To suspend a licensee’s driving privileges for refusing or failing to complete a chemical test, the hearing officer must prove (Vehicle Code section 13353.1(d)).:

  1. The peace officer had reasonable cause to believe that the person had been driving a motor vehicle in violation of CVC §§23136, 23140, 23154, 23152, or 23153;
  2. The person was placed under arrest or lawfully detained;
  3. The person was advised that a refusal would result in a suspension or revocation of the driving privilege; and
  4. The person refused or failed to complete the chemical test or tests after being requested to do so by a peace officer.

To suspend the driving privileges of a licensee who is under 21 or on DUI probation and refuses fails to complete a PAS test, the hearing officer must prove (Vehicle Code section 13353.1(d)):

  1. The peace officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23136.
  2. The person was lawfully detained;
  3. The person refused to submit to, or did not complete, the test after being requested to do so by a peace officer.

If the Department of Motor Vehicles takes action against a licensee’s driving privilege, the license suspension can run anywhere from thirty days to several years, depending on the nature of the suspension. Prior DUI arrests or a finding that the licensee refused to submit to a chemical test will result in a lengthier license suspension. In some circumstances a licensee can obtain a restricted license by enrolling in a drinking driver program or installing an ignition interlock device (IID).

The DUI laws in the State of California are constantly changing. An attorney knowledgeable of the DUI laws and experienced with Department of Motor Vehicle administrative per se hearings will give you the best chance of keeping your license. Contact the Law Office of E. Michael Linscheid for a free and confidential consultation.

Negligent Operator

The Department of Motor Vehicles may suspend or revoke the driving privileges of a licensee deemed a negligent driver. Convictions for traffic violations are assessed moving violation points ranging anywhere from 0 to 3 points. Pursuant to Vehicle Code section 12810.5 a licensee with a Class C (non commercial) license is deemed a negligent driver when they accrue 4 or more moving violation points in 12 months, 6 or more points in 24 months, or 8 or more points in 36 months.

Licensees with a Class A or B license are permitted 2 additional moving violation points but a traffic conviction resulting from a traffic ticket in a commercial vehicle carries one and a half times the point count assessed against a licensee with a Class C license. (Vehicle Code section 12810.5(b))

A licensee under age 18 can receive a thirty (30) day restriction of their driving privileges for 2 points in 12 months and will receive a suspension of their driving privileges for 3 points in 12 months. (Vehicle Code section 12814.6)

A person deemed a negligent operator will receive notice from the DMV and will be given an opportunity to request and appear at a hearing. At a negligent operator hearing, DMV will take into consideration the driving record of the licensee and decide whether the licensee should be designated a negligent operator. The DMV hearing officer is required to take into consideration the amount of miles driven by licensee and any hardship a license suspension will pose. At the conclusion of the hearing the hearing officer will issue a decision upholding or setting aside the suspension or placing the licensee on driving probation.

An attorney experienced with Department of Motor Vehicle administrative per se hearings will give you the best chance of keeping your license. Contact the Law Office of E. Michael Linscheid for a free and confidential consultation.

Violation Point Assessment

Violation points are assigned to Vehicle Code sections and any other code section, or city or county ordinance, involving the safe operation of a motor vehicle. Any violation occurring as a pedestrian or a bicyclist has no point assigned. The department may suspend and place on probation, or revoke, the driving privilege of a negligent operator.

Per Vehicle Code section 12810.5a, a Class C negligent operator has

  • 4 or more points in 12 months,
  • 6 in 24 months, or
  • 8 in 36 months.

Although a Class A or B driver without a special certificate may be allowed 2 additional points, a violation received in a commercial vehicle carries 1 1/2 times the point count normally assessed (12810.5b VC). A minor, under 18 years of age, may receive a 30-day restriction for 2 points in 12 months, or be suspended for 3 points in 12 months (12814.6 VC).



One Point Count California Vehicle Code Violations

Section Violation
2800Disobedience to traffic officer
2800.1Evading peace officer
2801Disobedience to fire official
2803, 2803a, 2803b, 2803cUnsafe vehicle load
2815Disregarding non-student crossing guard
2816Youth bus/children crossing highway
2817Disregarding funeral escort officer
2818Crossing safety flares/cones
14603Violation of license restrictions
21100.3Disregarding traffic officer's directions
21209, 21209aDriving in bicycle lane
21367, 21367a, 21367b, 21367cDisobedience to traffic signs/controller
21451, 21451a, 21451bIllegal movement/green light/arrow
21452, 21452aIllegal movement/yellow light/arrow
21453, 21453a, 21453b, 21453cIllegal movement/red/light/arrow
21454, 21454a - d, 21455 Traffic signals
21457, 21457a, 21457bDisobedience to flashing signals
21460a, 21460bDouble lines/one broken line
21460.5cUse of two-way left turn lane
21461, 21461a, 21462Disobedience to traffic control device
21650, 21650a - fKeep right
21651, 21651aCrossing divided highway
21652Entering highway from service road
21654, 21654a, 21654b, 21655, 21655bLane use/slow moving vehicle
21655.8High-occupancy vehicle lane/entering/exiting
21656 - 21662, 21662a, 21662bImproper lane use
21663Driving on sidewalk
21664Freeway ramp/entering/exiting
21700 Load obstructing driver's view
21701Interfering with driver's control of vehicle
21702, 21702a, 21702bDriving hours limitation
21703, 21704, 21704a, 21705, 21706Following too closely
21707Driving in fire area
21709Driving in safety zone
21711Towed vehicle swerving
21712, 21712a, 21712d, 21712f, 21715, 21715a, 21715bUnlawful riding/towing
21717Turning across bicycle lane
21750 - 21757, 21758, 21759Illegal passing
21800 - 21804, 21804a, 21804bRight-of-way
21805, 21805bYielding right-of-way to horseback rider
21806, 21806aYielding right-of-way to emergency vehicle
21807Unsafe operation of emergency vehicle
21950, 21950a, 21951, 21952Yielding right-of-way to pedestrian
21954, 21954bDue care for pedestrian on roadway
21960aProhibited use of freeway
21963Yielding right-of-way to blind pedestrian
22100 - 22105Turning and U-turns
22106Unsafe starting/backing of vehicle
22107 - 22111, 22111a, 22111b, 22111cSignaling turns and stops
22112, 22112aSchool bus signaling
22348, 22348a, 22348cSpeed/use of designated lanes
22349, 22349.5Maximum speed
22350, 22351, 22352, 22352a, 22352bBasic/prima facie speed limit
22354, 22355Exceeding posted/freeway speed limit
22356, 22356bMaximum speed 70 mph
22357, 22358.4Speed in excess of local limits
22359, 22360, 22361Speed in excess of local limits
22362Speed/construction zone
22363Restricted speed/weather conditions
22364Speed/traffic lanes
22400, 22400a, 22400bDriving too slow
22405, 22405aSpeed/bridge/tunnel
22406, 22407Maximum designated vehicle speed
22409, 22410Speed/solid/metal tires
22413Speed limit on grades
22450, 22451, 22452, 22452a, 22452bStop required/railroad crossing
22454Stop for school bus
23109, 23109b, 23109dSpeed contest/aiding or abetting
23116, 23116aTransporting person in truck load space
23127Driving on trails and paths
23220Drinking while driving
23222, 23222a, 23222bMarijuana or open container/driving
23235Ignition interlock verification
23244, 23244bDefeating ignition interlock device
23253Disobedience to toll highway officer
23270, 23270aUnauthorized towing
23330, 23330cWidth/load of vehicle at crossing
23336Disobedience to sign/vehicle crossing
24002, 24002a, 24002bUnsafe/unlawfully equipped vehicle
24004Operation after notice by officer
24250Lighting equipment
24409, 24409a, 24409bFailure to dim lights
24604Lamps/flag for extended load
25103, 25103a, 25103bLamps on projecting load
26301, 26302, 26302a, 26302b, 26302cBrakes
26303, 26304, 26304a, 26304bBrakes/combination vehicles
26307Forklift truck brakes
26311, 26311a, 26311b, 26311cAll wheel service brakes
26456, 26457Brakes/stopping distance
26458, 26458a, 26458.5Braking system/towing vehicles
26502aAdjustment/use of air brakes
26503 - 26506, 26506a, 26507Airbrake system
26508, 26508a - c, 26508e - k, 26508oEmergency stopping system
26520, 26521, 26522Vacuum brakes
27360, 27360a - c, 27360.5, 27360a - cChild Passenger restraint
27363, 27363bChild seat belt
27800, 27801, 27801a, 27801bMotorcycle/passengers and equipment
29001, 29002Fifth wheel connecting/locking device
29003a, 29003b, 29003cHitch and coupling device
29004, 29004a - c, 29006, 29006aTowed vehicle coupling
29201Pole dolly/load and length
31301, 31301aCaldecott tunnel restrictions
31303, 31303b, 31303c, 31303eHazardous waste transportation
31402Farm labor vehicle/unsafe operation
31540, 31504bRemovable containers/regulations
31614, 31614a, 3164b, 31614d - f 31614h, 31614iExplosives transportation
32104, 32104a, 32104b, 32105, 32105a, 32105c-eInhalation hazard transportation
32106, 32106a - dInhalation hazard transportation
34102Tank vehicle regulations
34501.2, 34501a, 34501cDriving hours limitations
34506, 34506a - gDriving hours, equipment, maintenance, operation
34506.3Safety regulation violation
34509, 34509c, 34509dVanpool vehicle maintenance inspection
35784, 35784a, 35784bViolation of special permit
35784.5, 35784a, 35784bExtralegal load/weight
36400Lift-carrier/speed
36705Bale wagon load width during darkness
Back to Top of Page

Two Point Count California Vehicle Code Violations

Section Violation
2800.2, 2800.3Evading peace officer/reckless driving
14601, 14601a,14601 b, 14601.1- 14601.4Driving while suspended/revoked
14601.5Driving, suspended/revoked for refusing test
20001, 20001a 20002, 20002a, 20002bHit and run/injury/property damage
21651bDriving wrong side/divided highway
22348bSpeed over 100 MPH
23103, 23103a,23103 bReckless driving
23104, 23104aReckless driving/causing bodily injury
23109a, 23109cSpeed contest /exhibition of speed
23140, 23140a, 23140bMinor driving with BAC of 0.05% or more
23152, 23152a-dDUI/alcoholic beverage or drugs
23153, 23153a-dDUI/causing bodily injury or death
31602, 31602a, 31602b, 31602cExplosives transportation
Back to Top of Page

Other Common California Code Violations Used In Negligent Operator Count

Section Code Violation Points
49307 or 12059 Education Disobedience to school safety patrol 1
191.5a, 192c1-192c4, 192.3c, 192.3dPenalVehicular manslaughter with gross negligence2
192c, 192.3, 192.3a, 192.3bPenalVehicular manslaughter without gross negligence1
27176Streets and highwaysSpeeding on Golden Gate Bridge1
Back to Top of Page

One Point Count Out of State Violations

Section Violation Section Violation
01 Speed/too fast or over speed limit 34 Entering/exiting from thoroughfare
03Speed/too slow or failure to turn out40Illegally modified vehicle
04Passing/illegal, improper or unsafe45Explosives transportation
05Following too close51Equipment/unsafe, illegal or defective
06Failure to yield right-of-way58Driving while impaired
07Illegal/unsafe use or change of lanes61Child passenger seat restraint
08Tuirns/illegal or unsafe 67Defective headlights
09Signaling/improper or no signal69Following emergency vehicle unlawfully
10 Failure to obey traffic control device70Using vehicle for felony/aiding or abetting
11Crossing double lines/markers/dividers72Erratic driving/suddenly changing speeds
12Wrong way on one-way street 73Fleeing scene or evading arrest by turning lights off when lights required
13 Brakes74Unsafe operation of a motor vehicle
14Lights75Driving off road/on shoulder/on sidewalk
21Violation of restricted license77No required equipment/using prohibited equipment
26Negligent/careless/inattentive driving86Felony involving commercial vehicle
27Starting or backing/illegal or unsafe87 Felony controlled substance/commercial vehicle
28Driving in a prohibited area88 Speeding 15 mph plus/commercial vehicle
30Disobedience of lawful order91Illegal lane change/commercial vehicle
31 Towing/improper, unsafe or illegal92Following too closely/commercial vehicle
32Obstructing driver's view or interfering93Fatal accident violation/commercial vehicle
33Unlawful riding on motor vehicle  
Back to Top of Page

Two Point Count Out of State Violations

Section Violation Section Violation
02 Speed contest/aiding or abetting 38 DUI/dangerous drugs not narcotics
15 Reckless driving 46 Manslaughter without gross negligence
16Reckless driving/injury47Manslaughter with gross negligence
17Drunk driving81DUI/BAC 0.04% aor more/commercial vehicle
18Drunk driving/injury82DUI/commercial vehicle
19Hit and run84DUI/controlled substance/commercial vehicle
20Driving while suspended or revoked85Hit and run/commercial vehicle
37DUI/narcotics89-90Reckless driving/commercial vehicle

Code of Federal Regulations Violations

Section Violation Points
36423 or 36FR46DUI/alcoholic beverage or any drug2

Medical Conditions

The Department of Motor Vehicles may investigate and reexamine the ability of a licensee to safely operate a motor vehicle when DMV learns that the licensee has a physical or mental disability. There are a variety of different circumstances that may trigger a reexamination based upon a perceived medical condition with the DMV, including: loss of consciousness, lack of skill, drug or alcohol dependency or licensees with conditions indicating lack of coordination or alertness. DMV typically commences an investigation and reexamination upon receipt of information from a medical doctor, law enforcement officer or family member of the licensee. Medical doctors are required by law to report certain medical conditions which affect a licensee’s ability to safely operate a motor vehicle.

Upon receipt of a notice of reexamination a licensee must immediately request a hearing in order to prevent or limit any suspension of their driving privileges. A licensee must have a driver medical evaluation completed by a medical doctor with an explanation as to why any perceived medical condition does not affect the ability of the licensee to safely operate a motor vehicle. download form

Individuals faced with a suspension based upon a perceived lack of skill can obtain a special instruction permit in order to complete driving lessons which will improve their chances of ultimately having the suspension set aside.

If a licensee’s driving privileges are suspended based upon a medical condition, the driving privileges cannot be restored unless and until the condition that resulted in the suspension improves. Once the DMV has determined the medical condition has improved or no longer affects the licensee’s ability to operate a motor vehicle, the licensee will need to pass both a written and road test in order to restore their driving privileges.

An attorney experienced with Department of Motor Vehicle administrative per se hearings will give you the best chance of keeping your license. Contact the Law Office of E. Michael Linscheid for a free and confidential consultation.

Administrative Writ of Mandate

If after a hearing before the Driver Safety division of the Department of Motor Vehicles, the licensee’s driving privileges are suspended or revoked they have a right to request department review (Vehicle Code section 14105.5) or appeal to the superior court to by filing an administrative writ of mandate (Vehicle Code section 13559); Mr. Linscheid can assist in determining which procedure is the most appropriate given the facts of the case.

A licensee may seek department review pursuant to Vehicle Code section 14105.5 by submitting a request to DMV within fifteen (15) days of the effective date of the decision with a payment in the amount of $120. A department review is limited to the findings and the evidence presented at the hearing. The suspension of the licensee’s driving privileges will not be stayed by the Department of Motor Vehicles while they are conducting the review.

An administrative petition for writ of mandate pursuant to Vehicle Code section 13559 is an appeal of the administrative per se decision to the superior court in the county the licensee resides or in DUI cases, where the arrest occurred. A writ of mandate must be filed with the superior court within thirty-four (34) days of the effective date of the decision appealed. It can take anywhere from 90 days to 6 months to have a hearing on a petition for writ of mandate. An attorney experienced with administrative writ proceedings can often times obtain the stay of the suspension of a person’s driving privileges until the hearing on the writ petition. A licensee seeking court review of the administrative per se decision should contact an attorney experienced with administrative writ proceedings to increase their chances of getting back on the road. Mr. Linscheid has sought superior court review and has successfully litigated administrative writs of mandate challenging the suspension of driving privileges by the Department of Motor Vehicles.

The website of the Department of Motor Vehicles contains numerous resources for California drivers. http://www.dmv.ca.gov