If you or a family member receives an adverse ruling from the DMV relating to a DUI charge and you face a suspension of your driver’s license, it is only natural to think of an appeal. This may be a response to a belief that the DMV ignored evidence, misapplied the law or that the effects of a license suspension harm one’s employment, health or schooling.
What One Should Learn from This Article: An appeal of the DMV ruling does not stop the license suspension, so the usual strategy of appealing must be reconsidered, especially because an appeal is expensive and may not reach a ruling until after the suspension ends anyways. However, on a second-time or third-time DUI, or someone with a commercial driver’s license, we recommend an appeal.
As a preliminary matter, it must be emphasized that filing a petition for writ of mandate (an appeal) does not stay, or halt, the suspension. The suspension of the license will still take effect and may even expire before the appeal is adjudicated.
Before filing an appeal, one most know the standards for appeal. In ruling on a petition for mandate, a court will determine, by exercising its independent judgment, whether the hearing officer’s decision was supported by the weight of the evidence (Vehicle Code § 13559; Bell v. Department of Motor Vehicles
(1992) Cal. App. 4th 304, 309). There must be substantial support for the decision. McKinney v. Department of Motor Vehicles
(1992) 5 Cal. App. 4th 519, 523.
When a driver presents evidence at a DMV hearing that rebuts a presumption, for example through an expert, the driver may have a viable appeal. Likewise, for example, when a driver presents the most recent traffic survey that is dated more than five years prior to traffic stop for exceeding the posted speed limit, but the DMV finds the officer had reasonable cause to make a traffic stop, an appeal may also be viable.
In most cases, however, the DMV decision is difficult or has no practical benefit to challenge. The expense of doing so must also be considered, as most retainer agreements do not include the expense of an appeal because such an appeal is rarely filed.
Consequently, a driver must consider applying for a restricted license as soon as one is eligible. The restricted license permits one to come and go to work, as well as his or her alcohol awareness classes. In the case of a first time DUI (defined as the first within the last ten years), one can apply after thirty days of actual suspension. In the case of a second time DUI, one can apply after ninety days if one lives in Los Angeles, Sacramento, Tulare or Alameda counties, however, the driver will have to install an ignition interlock device (IID) for twelve months. In other counties, a second time offender must serve twelve months of the two year suspension before applying for a restricted license.
To obtain such a restricted license, one must pay a license reissue fee ($125 as of May, 2012), show proof of enrollment in an alcohol awareness program such as an AB541, AB762 or SB38 program, and show proof of financial responsibility (insurance) for the prior three years, usually in the form of an SR-22 form obtained from one’s car insurance.
The suspension of one’s license can impose an unreasonable hardship on one due to family health issues that likely require emergency transportation, an inability to attend school because a driver’s license is needed to simply travel to school and school activities, or because the suspension of driving privileges will mean losing one’s job and that job provides basic life necessities for the family. When this is the case, one can apply for a “critical needs” restricted driver’s license. Our office has written a separate article on such a license and the best method to seek such a license. The article is on our website.
Lastly, it bears emphasizing that the DMV and the court operate separately. If you or a loved one lose at the DMV hearing, it has no bearing on your court case. The District Attorney usually has no interest in knowing how the DMV ruled. However, if the ruling is positive, i.e. a set aside of the license suspension (“a win”), your attorney certainly should advise the District Attorney of this.
For more information about DMV Hearings and DUI in general, click on the following articles:
- DUI Rejects Rising BAC Defense and Court of Appeals Affirms DMV
- Are Breath Tests Obsolete? California Supreme Court Says No
- What Is a Trial Tax?
Greg Hill & Associates