DMV Hearings

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.

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 personalized 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 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
• Two Point Count California Vehicle Code Violations
• Other Common California Code Violations Used in Negligent Operator Count
• One Point Count Out of State Violations
• Two Point Count Out of State Violations
• Code of Federal Regulations Violations

One Point Count California Vehicle Code Violations

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Two Point Count California Vehicle Code Violations

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Other Common California Code Violations Used In Negligent Operator Count

One Point Count Out of State Violations

Two Point Count Out of State Violations

Code of Federal Regulations Violations

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.

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 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

More Information

• Chapter 4: The DMV Hearing: How To Keep Your License