Saturday, June 11, 2016

Appealing a DMV Decision In A Refusal Case

A DMV refusal suspension is the most serious suspension the department imposes.  The reason behind this goes back to the agreement we all made when our license was issued in California, that is we all agreed to "implied consent" which means if we are arrested for DUI we would agree to submit to a breath or blood test at the request of a peace officer.  The DMV is the exclusive agency responsible for imposing sanctions for failure to submit to a chemical test, therefore the outcome of any concurrent court action will have no effect on any DMV decision regarding a refusal.  Put another way, if the DMV decides to suspend your license for a refusal (versus say having a BAC of .08 or higher), then no criminal court judge or jury can overrule that decision in any concurrent criminal dui case.

What this means is that your underlying criminal court case can be thrown out, dismissed, reduced, or you can be found not guilty and acquitted by a jury and the DMV will still not set aside the suspension for a refusal, unlike cases where you take a test and the issue is where you above a .08 at the time of driving.

There are appeal rights, however.  There are two options following a refusal finding:

1.  You can request an internal review of the decision by way of an administrative review.  This option has a cost of anywhere between $120 to $750 dollars depending on whether you decide to use the services of a lawyer.  The case goes to Sacramento and takes 2-8 weeks.  There is no right to a stay of the suspension pending the review.  You have 14 days from the date of the decision to file this appeal.

2.  You can file what is called a Writ of Mandamus to the Superior Court.  This is essentially a lawsuit against the DMV and the costs to pursue this are substantial.  Attorneys who do this type of work charge between 3-5 thousand dollars plus costs.  A civil judge will hear the case.  The time to do this can be long, anywhere from 2-6 months.  A stay of the suspension can be requested but is rarely granted.

What about a restricted license?  Unfortunately, the DMV has no procedure to request a restricted license in a refusal case.  There is no legal right to a work related license or any other limited license in refusal suspension cases.  The suspension can range anywhere from 1-5 years depending on the licensee's record and age.

What about the issue of need when it relates to a refusal?  Again, unfortunately the DMV does not consider a drivers need when it comes to a refusal suspension.  Therefore, issues such as medical conditions, critical need regarding work, school, etc., are not considered in the case.

Doesn't the DMV need to prove I was actually driving in order to suspend  my  license for refusing to submit to a chemical test?
Surprisingly, no the state only needs to show the officer had a "reasonable belief" that the person was driving in order to trigger the requirement to take a test.

Wednesday, June 8, 2016

Can I Appeal A DMV Decision?

The law in California allows a person who loses a DMV hearing to file an appeal.  There are essentially two options:  The first is to file what is called an internal administrative review.  This is an appeal that goes to Sacramento and is reviewed by a seperate unit that independently looks at the evidence and decides if the suspension should be upheld.  Many attorneys feel this avenue is a waste of time, however, as a lawyer who has 22 years experience I have had numerous cases overturned by this method and the cost is minimal.  Moreover, should the review be unsuccessful the licensee can still file a writ to the Court.

The second method of appeal is to sue the DMV by filing a court action by way of a writ.  This type of appeal is costly and time consuming.  The average cost to file a writ is well over $5000 and if the appeal is lost you could be on the hook for attorneys fees and costs for not only your side but the DMV as well.  However, this type of appeal is more neutral because an actual judge hears the case, not an employee of the DMV.