If one facing a DUI loses his or her DMV admin per se hearing, a natural response is to ask about appealing the ruling. Often the ruling just seems cut and pasted from another ruling. The ruling often totally ignores the foremost arguments counsel makes at the hearing. Other times, the ruling will even cite to evidentiary provisions that simply do not apply without further testimony.
The DMV decision itself has boilerplate wording at the end of the ruling that addresses one’s right to appeal the ruling through court and through an administrative appeal.
The wording in the DMV decision mentions that, first, one has the right under Vehicle Code § 13557 to have the DMV review the decision and such a request must be submitted to the DMV within 15 days of the effective date of the ruling and carries with it a $120 fee. This is considered a DMV Administrative review. What happens is one files this by mailing it or delivering it to the DMV office that made the ruling, which then sends the driver’s file and the administrative appeal to the top DMV office in Sacramento for a further review by a board of supervisors there.
The Sacramento DMV office then responds by upholding the ruling, ordering a further hearing or overturning the ruling. The response usually takes only a month or two. It is relatively fast.
The administrative review should not be confused with an appeal of the ruling in court. The DMV ruling also briefly addresses the right of the driver (“Respondent” in a DMV hearing) to file an appeal in local court. This is done through a verified Petition for Writ of Mandate, filed in the appellate division of the local superior court. It must be filed within 34 days of the effective date of the DMV ruling or within 94 days of an adverse ruling on one’s administrative review.
We recommend that one retain an appellate attorney familiar with DMV rulings to prepare such a writ of mandate, as there are procedural rules in filing such a verified petition and they must be followed with precision.
The filing fee for such a writ varies by county, but it is usually $500 or so. The appellate division usually takes four to nine months to rule on this.
In filing this, one usually requests a stay of the license suspension so one can drive again while the appeal is pending.
If one’s appeal through our appellate division court is granted, one can then request payment of attorney fees from the DMV and if one loses, the DMV can request payment of its attorney fees from the driver.
The DMV administrative review is something one should file before filing a Petition for Writ of Mandate, although it really is not a prerequisite to filing the appeal in court.
The format of the administrative review of the DMV ruling can be quite informal. We submit it in the form of a letter, addressed to the local DMV. We keep the letter relatively short (only three or four pages), stating the basis for our request for an administrative review and arguing why we think the DMV is erroneous. We will cite to any case law that we think should frame the analysis and where the DMV officer misapplied the law or ignored certain law. We include the $120 filing fee with this letter and often, we submit our written DMV brief with the administrative appeal because we want to ensure that the board of supervisors at the DMV in Sacramento has our brief to review.
The response from the Sacramento DMV is simply whether the DMV ruling is sustained, overturned or a further DMV hearing will be provided. The response lacks any explanation or detailed reasoning why the underlying DMV ruling is sustained. This can be very frustrating because one wants to know the arguments in the administrative appeal were considered, evaluated and analyzed.
In contrast, if one files a verified petition for a writ of mandate with the local appellate division court, the appellate division will offer some explanation of its response to the writ, although such reasoning may also be short.