Top 25 DMV Writ Issues

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 favorite. Imagine your favorite DMV hearing officer (you have one, right?) sitting around her desk in the minutes before your hearing starts. As you wait in the crowded DMV office lobby, this hearing officer opens up her file to see what you are accused of doing. She suddenly discovers that she forgot to subpoena the arresting officer to testify. Worse, she realizes that she will lose the hearing without that officer’s testimony. What does she do? Does she issue a set aside of the suspension because she can’t prove her case? Not in California. What she does is tell you that she’s going to “reconvene” the hearing at another time. (Similar issues may arise when a witness fails to appear because of a vacation or other unjustified reason.) This continuance is illegal because the hearing officer’s failure to issue a subpoena does not constitute “good cause” for a continuance.

Winning DMV Writ Issue #4

INVALID TRAFFIC STOP OR ILLEGAL SOBRIETY CHECKPOINT

This area is ripe for writs because hearing officers have a difficult time with issues involving stops and arrests. One of the elements of DMV’s case—meaning something they have to prove to take away a license –is that the arrest was legal. For an arrest to be legal, we argue the stop has to be legal. Therefore, in any case where the stop or arrest was illegal, the suspension is illegal and a writ should be issued. Sobriety checkpoints present fruitful challenges as more and more police forces are setting up checkpoints for the first time. (They get lots of grant money for stopping all those law-abiding citizens.) Under California law, there are at least eight guidelines police must follow for their checkpoint to be legal. If they do not follow those factors, a writ should be issued. One frequent issue arises when a motorist legally drives away from the checkpoint instead of driving through it. So long as the motorist does not break a traffic law in avoiding the checkpoint, police cannot legally stop her.

Winning DMV Writ Issue #5

USE OF HEARSAY AS THE SOLE EVIDENCE OF A FACT

This issue is very common and not surprising given the widespread use of hearsay to take people’s licenses away. (See Hearsay at DMV Hearings). Start with the issues DMV has to prove. Then see what evidence they have to support each element they have to prove. Is any of it hearsay? If they cannot show a valid hearsay exception for that evidence, then a writ should be issued.

Winning DMV Writ Issue #6

NO “OFFICIAL DUTY” FOR CRIMINALIST SIGNING BLOOD TEST REPORT

The California Evidence code allows DMV to presume that a “public employee” did his job properly so long as he has a statutory duty to do that job. The use of this presumption allows DMV to rely on documents like a blood test report and just “presume” that the toxicologist did his job correctly. Where the toxicologist signs the blood test report using the title “criminalist,” DMV cannot use the report because a criminalist does not have the kind of statutory duty that allows the presumption.

Winning DMV Writ Issue #7

UNLAWFUL TELEPHONE TESTIMONY ADMITTED

Many hearing officers hate in-person hearings. (Many lawyers hate them, too, but that is another story). In any case where DMV needs a witness to testify, an in-person hearing and proper objections will force DMV to subpoena them to be at the hearing in person. Many witnesses will not take time off work to go testify at a hearing, and even many police officers will not appear for DMV hearings. If DMV needs the testimony of that witness (and you can presume they do or the witness would not have been subpoena’ed), then you should win the hearing if they do not appear. Often the hearing officer, not wanting to lose the hearing, will simply call the witness on the telephone and take their testimony telephonically. This issue gets you an automatic writ, provided your lawyer demanded an in-person hearing and objected to telephonic testimony.

Winning DMV Writ Issue #8

NO EVIDENCE OF DRIVING

It seems obvious that to take your license away for driving with too high a BAC, DMV would have to prove that you actually drove a car. But the practice of using “inferences” where no proof exists has muddied the waters. Even in a case where nobody saw you drive, DMV is allowed to take your license away if they can establish driving by drawing “reasonable inferences” from the evidence they do have. An example where they can draw an inference often arises in accident cases where there is no witness to the accident itself. Police arrive a few minutes later (or much longer in some cases) and see a motorist in the driver’s seat of the smashed-up car. There is nobody else around, and the motorist offers no explanation of anyone else driving. DMV will be permitted to infer that the motorist behind the wheel was actually the driver. Unfortunately, hearing officers will draw “inferences” where there is no evidence whatsoever to suggest driving. In such a case, the inference is unreasonable, and a writ should be issued.

Winning DMV Writ Issue #9

NO EVIDENCE OF TIME OF DRIVING

Similar to Winning DMV Writ Issue #8 No Proof of Driving, DMV must also be able to establish the time of driving for two reasons. First, if they don’t know what time the car was driven, it can be very difficult to prove who was driving. Second, and perhaps more important, they must prove your BAC was above 0.08 at the time you were driving. If DMV can prove your BAC was tested within three hours of driving, they get to presume it was the BAC at the time you were driving. Thus, the actual time of your driving becomes critical to proving your BAC; if they can’t prove your BAC, they can’t take your license.

Winning DMV Writ Issue #10

POLICE REPORT UNSIGNED OR UNSWORN

DMV hearings rely upon the extensive use of documents: police reports, driving record printouts, blood test reports, etc. This use of documents has become so pervasive that DMV has actually created a DUI form that all law enforcement agencies in California must use for DUIs. That form contains in theory all the necessary information for DMV to suspend your record – if the form is signed under penalty of perjury. Believe it or not, there are often DMV hearings where the officer fails to sign the police report or fails to fill out the penalty of perjury part. In such a case, DMV cannot rely on the report, and a writ should be issued.

Winning DMV Writ Issue #11

POLICE REPORT MODIFIED AFTER SIGNED

Similar to Winning DMV Writ Issue # 10, this issue arises when an officer changes her police report after she signed it. Why would this matter? A police report is hearsay, but hearsay can be admitted into evidence at a DMV hearing. (See Can DMV Use Hearsay Evidence at a Hearing?). However, unless a hearsay exception applies, DMV cannot rely on anything in the report as the sole evidence of a fact necessary to suspend your license. Because the police report is often the only evidence of much of DMV’s case, it is essential that DMV find a hearsay exception for the police report. The most common hearsay exception requires that the police report be prepared “at or near the time of the events it describes,” meaning your arrest. In many cases, though, the officer has to go back and fix mistakes in the police report weeks later, in effect “preparing” it long after the time of your arrest. In such a case, the hearsay exception will not allow DMV to use the police report. If DMV relies upon a police report that was modified after it was signed, a writ should be granted for the improper use by DMV of that report.

Winning DMV Writ Issue #12

POLICE REPORT NOT SIGNED WHEN CREATED

Similar to Winning DMV Writ Issue # 11, this case arises when an officer either fails to sign a police report at all, or fails to sign it at or near the time of your arrest. A police report is hearsay, but hearsay can be admitted into evidence at a DMV hearing. (See Can DMV Use Hearsay Evidence at a Hearing?). However, unless a hearsay exception applies, DMV cannot rely on anything in the report as the sole evidence of a fact necessary to suspend your license. Because the police report is often the only evidence of much of DMV’s case, it is essential that DMV find a hearsay exception for the police report. The most common hearsay exception requires that the police report be prepared and signed “at or near the time of the events it describes,” meaning your arrest. Incredibly, police officers often forget to sign the police report. When DMV catches the mistake, it will send the report back to the officer for their signature. The officer will then sign the report, often weeks after the arrest, and send it back to DMV. If DMV doesn’t catch the mistake, they will try to use the unsigned report to suspend your license. In either case, you should win a writ. If the report is unsigned, it may not be used to suspend your license. If it is signed more than a few days after the arrest, it cannot be used either, as there is no hearsay exception to admit the report.

Winning DMV Writ Issue #13

INADEQUATE FOUNDATION FOR CHEMICAL TEST

Before DMV may rely on a breath or blood test to suspend your license, they must be able to show that the test was performed in accordance with Title 17 of the California Administrative Code. As with so many other DMV issues, there is a presumption that Title 17 was followed – it is up to the motorist to show why it was not. If the motorist does show that Title 17 wasn’t followed (or that the officer really doesn’t know whether it was or not), the presumption should be rebutted. If the presumption is rebutted, the burden shifts back to DMV to show the test was indeed performed in accordance with Title 17 before relying on it to suspend your license.

Winning DMV Writ Issue #14

UNLAWFUL “INFERENCE” DRAWN BY HEARING OFFICER

This issue gives rise to a writ when the DMV hearing officer stretches the facts too far to make a finding against you. Issues #8 and #9 are two examples of this habit, but it could arise in just about any circumstance where DMV doesn’t have the evidence it needs. Common facts DMV infers are missing times, conversations and the performance of police procedures. Some inferences are reasonable and will not support a writ. Many inferences, however, stretch logic and common sense too far. If DMV suspends your licensed based on an unreasonable inference, a writ should be issued to set aside the suspension.

Winning DMV Writ Issue #15

UNLAWFUL USE OF PRESUMPTIONS

Unlike a criminal trial, you are not presumed innocent at DMV. In fact, you are presumed guilty and will lose your license unless you are able to rebut the presumption of guilt. Fortunately, the presumption is not difficult to rebut, and DMV hearing officers often simply ignore your rebuttal evidence and apply the presumption anyway. If we start with the presumption that a police officer does her job properly, you might rebut that presumption by pointing to the many instances of conduct that violated her job guidelines, Title 17 and her agency policies. In theory, pointing out these violations should rebut the presumption and level the playing field. At that point, DMV would need to call the officer to the stand to take her testimony on these points. Often, though, the hearing officer will simply restate the presumption and note that your evidence did not rebut it. In such a case, a writ should be issued.

Winning DMV Writ Issue #16

IGNORING UNCONTRADICTED DEFENSE EXPERT TESTIMONY

Note: This issue is similar to #15. DMV is allowed a presumption that a breath test or blood test was performed properly. The motorist then either points to obvious violations or presents expert testimony as to why the proper procedures were not followed or why the reported BAC could not possibly have been the true one. Once that testimony is presented, the motorist has rebutted any presumption of the reliability of the chemical test. The hearing officer must either set aside the suspension or call a state toxicologist to the stand to explain why the defense expert was wrong. If DMV suspends the license without calling an expert of its own, a writ should be issued.

Winning DMV Writ Issue #17

MOTORIST NOT UNDER ARREST AT TIME OF CHEMICAL TEST/REFUSAL

It is astounding to the author how often this problem arises. Under the implied consent laws, you cannot be required to take a chemical test until after you are arrested. Any chemical test done before and arrest is unlawful and should not be used by DMV. Similarly, since you don’t have an obligation to take a chemical test until after you are arrested, you cannot have “refused” a test if it was requested prior to arrest. Therefore, a writ should be issued to reverse any suspension based on a chemical test or refusal occurring prior to arrest.

Winning DMV Writ Issue #18

MOTORIST’S REFUSAL FOLLOWED HEAD INJURY OR OTHER MEDICAL CONDITION

The penalties for refusing a breath or blood test are severe – either a 1 year or 2 year license suspension. There is, however, one exception in the statute. If the motorist shows that she could not understand the nature of the request or the penalties, then she cannot be held accountable for the refusal. This exception most commonly arises in accident cases where a motorist suffers head trauma that causes confusion; not surprisingly, such a head trauma can also cause many of the symptoms of intoxication. Other non-trauma medical conditions can cause the kind of confusion that will excuse a refusal: hypoglycemia and seizures are two. If the medical evidence at the hearing demonstrated that you were incapable of understanding the implied consent advisement or the consequences for refusing, a writ should issue to set aside the suspension of your license.

Winning DMV Writ Issue #19

MOTORIST’S REFUSAL BASED ON OFFICER-INDUCED CONFUSION

This issue arises when the officer’s failure properly to explain the implied consent rules created confusion that led to a refusal. Such a defense almost necessarily requires testimony by the motorist. An example is where the officer improperly reads the implied consent admonishment. Often the officer will not read it at all, but will try to explain it from memory. If the officer confused you with the instructions, and that confusion led to your refusing the test, your refusal is excused. If DMV suspends your license after the officer created this kind of confusion, a writ should be issued to set aside your suspension.

Winning DMV Writ Issue #20

MOTORIST’S REFUSAL FOLLOWED INCORRECT OFFICER ADMONITION

Similar to Winning DMV Writ Issue #19, this issue gives rise to a writ when the officer doesn’t confuse you, but misleads you into thinking the penalties are lesser than they really are. (Theoretically this issue would apply if the officer overstated the penalty, but that wouldn’t help you in court.) If the officer tells you the penalty for a refusal is a suspension for only four months, and you refuse based on that advice, DMV cannot impose the full statutory one year suspension. If DMV suspends your license for a longer period of time than that stated to you by the officer at the time you refused the test, a writ should be issued to correct the suspension.

Winning DMV Writ Issue #21

CHANGING FIRST OFFENDER PROGRAM TO MULTIPLE OFFENDER PROGRAM

When a motorist is convicted of DUI in California, the Vehicle Code imposes a mandatory DUI program: a three month first offender program or an 18-month multiple offender program. Sometimes DMV fails to notice an out-of-state prior DUI and orders a motorist to complete the first offender program instead of the multiple offender program. The motorist dutifully enrolls in and completes the three month program and gets their license back. Fast forward a couple of years when DMV learns of the out-of-state prior. The Mandatory Actions Unit will suspend the motorist’s license until they start all over and complete an 18-month program. It’s outrageous, and it’s illegal. If DMV suspends your license and tells you to complete the multiple offender program when you’ve already completed the first offender program at DMV’s direction, a writ should be issued to reverse the suspension.

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