DMV Case Overview

When a California driver is arrested, the suspect is supposed to be given a choice of a breath or blood test(or urine test when neither are available). If a breath test indicates a .08% blood-alcohol concentration or more, or a blood (or urine) test is taken for later analysis, or the individual refuses to submit to chemical testing, the arresting officer win confiscate or “snatch” the license (unless it is an out-of-state license) and serve the arrestee with a pink sheet of paper entitled the “administrative Per Se Order of Suspension/Revocation Temporary License Endorsement.“

If the officer does not take the license, the DMV will subsequently mail the order to the individual This two page form sets forth the bare minimum facts necessary for the DMV to suspend the license: observation of driving, probable cause, and breath test results (if available). It is signed under oath by that arresting officer and the breath machine operator, and then forwarded to the California Department of Motor Vehicle on or before the end of the fifth ordinary business day following the arrest

NOTE: This deadline is routinely ignored with no consequences.

The Administrative Per Se Order of Suspension/Revocation and Temporary License Endorsement serves as a:

• 30-day temporary permit to drive
• notice of the administrative license suspension
• notice of the right to request an administrative hearing within 30 days.

The DMV will conduct an “administrative review” of the case to ensure that the Police Evidence complies with the requirements for an administrative suspension and will address the follow issues as set for in California Vehicle Code section 13557 and 13558.

Did the officer have reasonable cause to believe the defendant was driving a vehicle in violation of Vehicle Code section 23152 and 23153
Was the defendant lawfully arrested?
Was the defendant properly advised of the consequences for refusing to submit to or failing to complete a chemical test?
Was the defendant driving a vehicle with 0.08% blood-alcohol concentration?
It is vital that the accused consults with all attorney because these reviews could end up being little more than an exhibition in box checking by DMV clerical personnel where legal issues such as probable cause are often overlooked.

The DMV provides for these administrative reviews to be performed in 1 of 2 different formats:

1. “telephone” hearing
2. “in-person” hearing

The DMV’s format of choice is the less expensive and more convenient telephone hearing; as a result, employees at these offices often encourage individuals requesting a hearing to accept a telephone hearing without even advising the applicant of the right to an in-person hearing. A telephone hearing is more convenient for both parties involved the DMV employee and the defendant, but the defendant must be aware that a telephone hearing lacks the advantages of dealing with people face-to-face. It provides little opportunity to relate to the hearing officer on a personal level and leaves the client remaining as a faceless name on a long list of accused, Most importantly, if the arresting officer is subpoenaed by the defendant or the DMV to testify, cross-examination of his/her on the telephone is considerably less effective than in person.

Consequently, upon being retained by the defendant, Samudrala Law will contact the appropriate Driver Safety Office, where these in-person hearings are held, and attempt to reschedule it for an in-person hearing within the 30 days. The DMV may still grant an in-person hearing if a written request is submitted by the defendant setting forth good cause for the delay, In addition, if the DMV is unable to set a hearing within 30 days of the arrest (and this in increasingly common), the temporary permit to drive will have expired so an extension of the temporary license, known as a “Stay of Suspension” must be obtained. NOTE: The stay can only be obtained if an administrative hearing was made within 10 days of the Administrative Per Se Order being served.

An in-person hearing is usually held in a small office room at one of the Driver Safety field offices. A hearing officer sits at a desk on which lies a tape recorder while Samudrala Law and the defendant (if he/she needs to be present) and any witnesses will sit facing the hearing officer much like in a courtroom setting. The hearing officer is an employee of the DMV with little or no legal training; nevertheless, he/she still has the critical task of acting as both prosecutor and judge, The hearing oft1cer will present the DMV’s case -conduct a direct examination of any DNlV witnesses and cross-examine the defendant and defense witnesses -like a prosecutor while simultaneously ruling on all objections and determining the admissibility of all evidence like a judge. This conflict of interest clearly leaves the defendant little chance of a fair impartial hearing and demonstrates how much these hearing were designed to sustain the suspension.

The hearing officer never renders a decision at the end of the hearing, The matter is “taken under submission” and a “Notice of Findings and Decision” is later forwarded by mail to the licensee and Samudrala Law from 2 days to over a month later. If this notice upholds the suspension, armed with the audio tape from the administrative hearing.

Samudrala Law has 2 immediate options to appeal the decision:

• File a “Request for Review of Decision” with the Driver Safety Office requesting review and spelling out the claimed grounds of error.
• File an alternative writ with the superior court to have the hearing officer impeached at trial.