An Introduction to California DMV Writs
Key Defense for License Suspensions
An Introduction to California DMV Writs
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.” DMV writs are 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, DMV writs are orders 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 the petition is usually to schedule an ex parte motion for a stay of the suspension.
California law permits a stay of any agency decision during the time it takes for a judge to decide a writ petition challenging that decision. If we didn’t have a way to stay a decision pending a writ, some decisions could never be appealed—by the time a judge reversed a decision, the damage would already have been done.
Though the statute does not specifically require it, most judges want to see that a motorist has a really pressing need for her license, i.e., the need to drive to school, to work or for family reasons. 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.
Ex parte stay procedures vary wildly from county to county, courtroom to courtroom, and sometimes from judge to clerk in the same courtroom. There is simply no substitute for having extensive writ experience here.
Once the judge signs the stay order, it must be served on DMV so its staff can enter the stay in the computer. Usually, this update is done the day the stay is issued. However, it is a good idea for the motorist to carry a copy of the stay order with her for a few days in case she is pulled over before the computer updates take effect.
Preparing the Record
Once the stay of suspension is safely in place, the next task is usually to prepare the record of what happened at the DMV hearing. It is our responsibility to compile all the evidence introduced at the hearing and have a transcript prepared so the judge can see why the hearing officer made a mistake.
DMV will prepare this record for you at a price, but you can also prepare the record yourself. In most cases DMV prepares a duplicate record anyway, giving us for free what they would have charged us for if we had asked them to do it in the first place.
Preparing the Legal Argument
Once the record is complete, the next step is to prepare the legal points and authorities that will show the judge the legal reasons why the hearing officer made a mistake. This step may involve substantial legal research if the case presents a new twist on some area of DMV law.
These legal arguments must be prepared with an eye toward the entire body of DMV writ law. The attorney must know where a certain type of DMV writs fits in to the larger scheme of DMV hearings, and even the larger picture of administrative hearings statewide.
Finally, both lawyer and client should always bear in mind that DMV writs may be just a stepping stone to an appeal to the appellate court. The reality is that some judges simply will not give a license back to someone accused of DUI—period. In those cases, the points and authorities must be sufficient to raise every issue necessary should the writ be denied and an appeal be necessary.
Window of Settlement
Once the legal arguments are filed, DMV has a chance to settle the case without appearing in court for oral argument. DMV knows that if it loses the case, it may have to pay your attorneys’ fees—something that really gets their attention.
In some cases, then, DMV would rather give up than have to pay fees, and in those cases they will offer to return a license to a motorist if she agrees to waive reimbursement of attorneys’ fees.
Arguing the Case in Court
This is the day you’ve all been waiting for. You’ve gotten your stay, you prepared the record and briefed the arguments. Now comes your day in court.
Some judges will take the time to write out a “tentative opinion,” outlining their thoughts on the writ and explaining why they’re leaning one way or the other. If there is no tentative, you won’t know which way the judge is leaning until he calls the case in court.
Usually the judge will turn to the “losing” side and offer them a chance to change his mind. “Counsel, since I’m leaning against your position, why don’t you take a moment and tell me what I’ve missed.”
Usually the judge will issue a decision in open court, although sometimes the issues are complex enough to require more thought. In such a case, the judge will “take it under submission,” and send out a decision later.
If You Win the Writ…
Winning the writ will end the case if DMV chooses not to appeal the decision. Once the judge’s final paperwork (a “judgment”) is signed and entered, you may be eligible for reimbursement of your attorneys’ fees.
If You Lose the Writ…
Losing the writ may just be the intermediate step before an appellate court reverses DMV and the superior court judge. There are several reasons this situation may arise.
For example, there may be an unsettled area of the law which will take an appellate court to clear up—until that happens, superior court judges may continue to follow the unsettled law and deny writs. Or, the law may be settled and a particular judge just can’t bring herself to return a license to someone accused of DUI.
If you lose a DMV writ, you should have a thorough discussion with your attorney about the merits and costs of pursuing an appeal. If you win on appeal and reverse the lower court’s decision, you may be entitled to an award of attorneys’ fees for the entire process.