San Diego DMV Administrative Per Se License Suspension Hearing
A San Diego DUI lawyer is given just 10 DAYS after the DUI arrest to make a request in writing to the San Diego DMV Driver Safety Office in order to timely demand a hearing to determine whether or not the California DMV will suspend your license or driving privilege.
Timing is critical. Don not waive right to hearing by making Request for Hearing following expiration of the 10 day deadline. California DMV will automatically suspend your privilege to drive from 4 months to 1 year unless your local San Diego DMV lawyer timely contests the action.
Because of the strange protocol of DMV hearings which are not even heard by a real Judge, do not not attempt a “Do-It-Yourself.” Public defenders do not do these hearings. You won’t be able to get free advice.
DMV defenses are complicated. That’s why you need a lawyer who knows how to do these hearings. This is not the Superior Court which most lawyers are familiar with. Factual, procedural, legal and bureaucratic factors all come into play. The best San Diego DUI Attorney will always have a strategy or attack, based on the proof or lack of proof provided by DMV.
The DMV hearing is subject to various DMV procedures, complex DMV legal rulings, and odd DMV rules. The San Diego DMV hearing is heard by an employee of DMV called the Hearing Officer. She or he is not a licensed lawyer. Instead, the hearing officer conducts herself or himself as a 3-headed collector of evidence, prosecutor of evidence and judge of evidence.
Here is how unfair a DMV APS hearing can be:
- The hearing officer puts together the evidence DMV decides to use
- The same hearing officer overrules your San Diego DMV lawyer’s objections to DMV’s evidence
- The same hearing officer legally objects to the driver’s evidence
- The same hearing officer rules on her or his own objections
- The same hearing officer dually engages your San Diego DMV lawyer
- The same hearing officer decides to admit or not admit either party’s evidence
- The same hearing officer ultimately rules on the sufficiency, competency and weight of evidence before
- Rendering a Notification of Findings and Decision
- Issuing a Set Aside Order
The hearing officer gathers evidence and can call witnesses. The hearing officer typically admits the San Diego DUI police agency report, DMV driving record, test results, and the police officer’s sworn statement [“DS 367”].
Importantly, the latter document shall contain all information relevant to the enforcement action. (California Vehicle Code section 13380)
San Diego California DMV has the burden of proof – based on the standard of a preponderance of evidence – as to all the DUI issues (set forth on the back of the original pink ORDER OF SUSPENSION served at time of arrest/detention). There is no 5th Amendment right. so therefore your San Diego DMV attorney generally does not prefer you to appear; otherwise the hearing officer may swear you in as a witness meaning you could end up testifying against yourself. The preferred strategy is usually for your San Diego DMV lawyer to attack DMV documents and the lack of evidence. Your presence may interfere with that well-recognized strategy.
Written DMV hearing outcome is mailed sometime upon conclusion of the proceedings. A DMV action can be set aside or upheld. If DMV suspension is upheld, the decision can be appealed to Sacramento and/or to the San Diego Superior court by filing a petition for writ of mandamus lawsuit against DMV.
If it is the 10th/final day to request a hearing but your San Diego DMV attorney has not yet been retained within 10 days of the arrest, you may have no choice but to make a last second attempt to call the San Diego Office yourself, request an In-person hearing, the documents, a stop on the action, and the Hearing Officer’s identity.
Always get the DMV person’s name whom you speak with. Never talk about why you are challgenging the action; you probably don’t know yet. The San Diego Driver Safety Office is at 1455 Frazee Road, Suite 400, San Diego, CA 92108 [(619) 220-5300 or fax (619)220-5418].
DMV often cannot offer a hearing date before your 30 day temporary runs out. Your San Diego DUI attorney will request a stay of suspension and an extension of the temporary license until your San Diego DMV hearing is finalized and a DMV decision is mailed.
