by leemccoy | Oct 26, 2013 | Library
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 the term used for the document that starts an ordinary lawsuit, you file a petition to start a writ proceeding. Getting a Stay of the Suspension Because most motorists need a stay of the DMV suspension during the time the writ proceeding is pending, the first task after filing...
by leemccoy | Oct 26, 2013 | Library
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). Without a presumption that the PAS test was valid, DMV must lay a scientific foundation for the reliability of the test – the lack of such a foundation is grounds for a writ. Winning DMV Writ Issue #3 UNLAWFUL CONTINUANCE GRANTED BY HEARING OFFICER This one is a perennial...
by leemccoy | Oct 25, 2013 | Library
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 have an easier time getting a stay than a fourth offender with a 0.31 BAC who was driving the wrong way on the freeway. All judges and all cases are different, of course, but our success rate in obtaining stays is approximately ninety percent...
by leemccoy | Oct 25, 2013 | Library
Preliminary Checklist Before you go to the trouble and expense of pursuing a writ, ask yourself if there is an easier way to get what you want. One thing you want, of course, is to be able to drive again after a DMV suspension. Believe it or not, there are several alternatives to consider after a bad DMV hearing. Make sure you or your attorney analyze the issues in your case and consider each of these alternatives before accepting the suspension 1. WORK-RESTRICTED LICENSE If the DMV suspension is a first-offense administrative suspension, you will likely be able to obtain a restricted license after thirty days. (For second and greater offenses, the waiting time is much longer – a year or longer.) This restricted license will allow you to drive legally for three purposes: (1) to get to and from work; (2) to drive in the course and scope of work; and (3) to get to and from the first offender’s DUI program. Take a close look at Number Two, the "course and scope of work" clause. This means you can drive not only to and from work but anywhere that is required for you to do your job. Many professionals and self-employed individuals can take advantage of this kind of license because they are almost always traveling in the course and scope of their job. If you can live with the thirty day "hard" suspension (during which you cannot drive legally at all) and the restricted license gets you everywhere you need to go, you may conclude that you don’t need to beat DMV badly enough to pursue...
by leemccoy | Oct 25, 2013 | Library
Okay, so it’s not really without a fight; it would have been more precise to say without having to fight all the way. Let me explain. When I go to court to seek a writ, I carry a very big stick. That stick is the one weapon DMV hates most of all: the brutal club of attorneys’ fees. You see, when I win a DMV writ after an arbitrary hearing officer suspends my client’s license, DMV has to pay my attorneys’ fees. On this point our legislators in Sacramento got it right: a motorist should not have to pay five thousand dollars to prove DMV shafted him at the hearing. We can use the threat of attorneys’ fees to our advantage. Where I can make a convincing showing to DMV that they’re going to be paying my fees, their attorney usually calls me up and offers to return my client’s license without any more fighting. In exchange for the license, DMV asks my client to waive her right to reimbursement of attorneys’ fees. So far, every single client offered this deal has taken the sure-thing license return and avoided the chance, however slight, that she would lose in court. As a lawyer, I always have to recommend the sure thing over rolling the dice in court, but I am waiting for that client to come along who will refuse the offer and take one of these cases all the way to the...
by leemccoy | Oct 25, 2013 | Library
Be On The Lookout Order #1 WANTED: BLOOD TEST CASES BASED ON TEST REPORT ALONE Do you or (for attorneys) your clients have a case where the DMV relied or intends to rely on a blood test alone to prove BAC? If so, check to see what title appears after the name of the toxicologist. If no title appears, or the title “criminalist” appears, or some other non-statutory term appears, DMV ought not to be allowed to use it against you. Our office currently has multiple cases at the Court of Appeal on this issue, and it likely will be a landmark DMV case when it is decided. Be On The Lookout Order #2 WANTED: REFUSAL CASES BASED ON MEDICAL ISSUES Do you or (for attorneys) your clients have a refusal case where a medical issue prevented you or your client from understanding implied consent? As you may know, the Vehicle Code provides an exemption to the consequences of a refusal if the motorist suffered a condition that prevented her from understanding the requirements of implied consent or the consequences of a refusal. If so, you may be able to join with me in an appeal pending currently in the Second Appellate District or to initiate a concurrent appeal in another...
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