California DMV Hearing Tutorial
An Introduction to DMV Hearings in California
California DMV Hearing Tutorial
You must request a hearing after receiving notice of a suspension or adverse action by DMV or that action becomes permanent. Usually the notice from DMV accurately states your deadline for requesting a hearing, with one sizable exception. For drinking/driving hearings (such as .08 BAC or zero tolerance), DMV’s notice typically states you have 10 days to request a hearing. It should say you have 10 days if you want to have the hearing before the suspension starts. You should have 30 days to request a hearing, but DMV frequently denies hearing requests submitted after 10 days. If more than 10 days have elapsed since you were served with one of these notices, DO NOT GIVE UP—especially if you are under 21 (there’s a different rule). Call us and we can help protect your hearing rights and beat DMV.
Right to Renewed Hearing in BAC Cases
Keep in mind that if you lose your .08 BAC or zero tolerance hearing, and the criminal court prosecutor either does not file DUI charges or does file charges but later dismisses them, you have the right to a second hearing (a “do over”) if you make the request within one year of your arrest.
Illegal continuance practices are a frequent reason writs are granted by judges in California. Because the hearing officer serves as both judge and prosecutor, they always grant themselves a continuance when they want one and almost always deny a continuance to the motorist. DMV is allowed to grant itself a continuance only for “good cause,” and MUST grant you a continuance if you can show good cause. Usually this means lack of proper notice or the unavoidable absence of the motorist or witnesses.
Once the hearing is scheduled, DMV will send you the documents it intends to use at the hearing (e.g., the officer’s sworn statement, police reports, your driving record and any chemical test evidence). In a blood test case, make sure DMV includes the blood test report in the initial discovery. Often the hearing officer will spring it on the motorist at the hearing and then deny a continuance for proper review. If you have a blood test case where DMV fails to send you the blood test report, call us and we can help you protect your rights.
The Hearing Itself
At the hearing, DMV goes first, presenting all the evidence it has against you. Often DMV’s case is based simply on the discovery documents you were sent in advance, but sometimes DMV subpoenas witnesses to testify against you. You can tell if DMV intents to call any witnesses by reading the Notice of Hearing form in the discovery sent to every motorist who requests a hearing. After the hearing officer finishes presenting DMV’s case, it will be your turn. You may either present affirmative evidence (documents, your own testimony or witnesses) or simply attack DMV’s case in a closing argument. You should consult with a qualified DMV attorney before deciding to testify yourself—the potential for risk is enormous. After your closing argument, the hearing officer will usually take the case “under submission” and send you a notice of the decision by mail.
Reopening the Hearing
In some cases it is appropriate for either side to reopen the hearing to present additional evidence that could not have been presented at the time of the hearing. This can be done even after DMV suspends you. (We frequently do it before filing a writ petition, to make sure all the evidence we need is in the record.)
The DMV hearing process is a strange amalgamation of the Vehicle Code, Government Code and Code of Civil Procedure. Sections 14100 through 14112 provide some specific, DMV Hearing procedures. Section 14112(a) provides that anything not specifically covered in those sections is governed by the Administrative Procedures Act of Government Code section 11500 et seq. This is a common way to provide hearing rules. The Government Code provides the procedures common to many types of hearings, and the Vehicle Code adds specific, DMV-related procedures to it. Effective representation at hearings requires a mastery of both codes, as well as the rules of evidence that govern these hearings.
Section 13558(b) imposes a 10-day deadline on a request for a hearing “[if] the person wishes to have a hearing before the effective date of the suspension or revocation . . .” Contrary to DMV’s frequent rulings, it does not impose a 10-day deadline in order to preserve the right to a hearing.
Section 13353.2(e) allows a “do-over” hearing in drinking/driving cases where the criminal court prosecutor fails to file criminal charges (or files criminal charges and later dismisses them). The prosecutor is supposed to send DMV a completed Form 702 stating the grounds for the decision not to file charges (or to dismiss charges that were filed), but there is nothing in the code that requires that form in order to have the do-over hearing.
Even after a motorist has been suspended, Section 14106 allows the motorist or DMV to “reopen the question, take further evidence, or change or set aside any order previously made.”
GC 11500, VC 13353.2, VC 13358, VC 14100,VC 14106, VC-14112
- How to Request Your Own DMV Hearing
- How to Read Your Discovery
- May DMV use hearsay evidence at a hearing?