The Illinois Secretary of State (who licenses drivers in Illinois) will begin scheduling appointments to license undocumented drivers November 12. California Governor Brown signed a similar bill into law October 3.
California’s DMV suspends about 350,000 driver licenses a year. That’s more suspensions than in New York, Texas, Illinois and Florida combined! The explanation is simple: California motorists do no get a fair hearing at DMV because the prosecutor and the judge are the same person! If you’re confronted with an unfair suspension, there is hope. A writ of mandate from a judge can force DMV to give you your license back. Explore our pages here and, if you or your attorney needs a writ of mandate against DMV, give us a call. Rodney Gould, Esq. Attorney at Law (818) 981-1760 email@example.com
A Fancy Way to Say Appeal Most people are familiar with the term “appeal.” When a defendant loses a trial, she may appeal it by asking a higher court to overturn her conviction. To overturn a DMV suspension, a motorist may appeal it by asking a superior court judge to issue a writ. “Writ” is another word for “order.” A writ is a kind of order from a court telling a government body like a school board or DMV to reverse a decision. The fancy legal term is writ of mandate or writ of mandamus following the Latin convention. Where the writ is directed to an administrative agency like DMV, it is often called a writ of administrative mandamus. Whether you prefer the Latin or not, a DMV writ is an order signed by a judge telling DMV to reverse one it its decisions—usually a license suspension. Starting the Writ Process in California A writ proceeding is a hybrid type of case combining elements of an ordinary lawsuit with aspects of an appeal. While you have to file a superior court lawsuit, paying the filing fees as in any other civil matter, the rules are stricter because what you’re filing is actually the evidence that the judge will use to decide your case. Instead of filing a complaint, which is
Winning DMV Writ Issue #1 UNDER 21 DRIVER SUSPENDED AT BAC OF ONLY 0.01% In Central California, the Nazerian v. DMV case suggests that Zero Tolerance requires a reading of at least 0.02% to account for the breath machine’s margin of error. Since the machine can only be accurate to within plus-or-minus 0.01 of a given reading, a BAC value of 0.01 really means “somewhere between 0.00 and 0.02.” Anything below 0.01 would not violate the zero tolerance law and will not support a suspension so long as the motorist presents expert testimony on the issue. (Without expert testimony, DMV can pretend the machine is accurate at a value of 0.01.) Thus, a writ should be issued in every 0.01% case where evidence of margin of error is introduced. Winning DMV Writ Issue #2 UNDER 21 DRIVER SUSPENDED BASED ON INSUFFICIENT PAS FOUNDATION Most Zero Tolerance cases use a preliminary alcohol screening device to test BAC because the under 21 driver is not arrested for DUI. This PAS device is a less-reliable machine and is not governed by the extensive regulations of Title 17. Without Title 17 to spell out how the PAS device is to be used, there is no statutory presumption that it was done correctly (as there may be in the case of an evidential breath test).
The California Code of Civil Procedure authorizes a judge to stay the action of any administrative agency of the State while a writ action is pending to challenge that decision. A stay only makes sense if you think about it. If we had no way to put a stop to the damage that could occur during the time it takes a judge to reverse an agency decision, we could never really reverse a decision. In the DMV context a motorist should not lose her license for the two to three months it may take to prove the suspension was wrongful. Therefore, one of the earliest actions we take on a DMV writ case is to file an ex parte motion to stay the suspension while we fight about the writ. Often we can get the stay as early as three or four days after being retained, putting our clients back behind the wheel very quickly. Though the statute does not specifically require it, most judges want to see that you have a really pressing need for your license, i.e., you need to drive to school, to work or for your family. The judge is authorized to deny the stay if it would not be in the “public interest,” so a first offender with a 0.08 BAC and good driving will