The DMV APS process is tough on driver’s accused of DUI. In most cases, this is warranted, given the serious nature of DUI cases. Sometimes, however, the DMV goes beyond being hard on DUI drivers and crosses the line by making improper rulings or denying a driver rights that the law affords to the accused.
If the DMV makes an improper ruling at an APS hearing, the driver effected by that hearing has two avenues of appeal: the internal DMV process and a Writ of Mandate from the Superior Court.
Internal DMV Appeal:
The internal DMV Appeal process must be initiated within a short period of time following the adverse APS decision. It involves a review of the documents presented at the hearing, and a review of the audio recording of the proceedings. The DMV sends the files to its headquarters in Sacramento, including a copy of the CD that contains the recording of what was said at the hearing. The internal DMV appeal review will only look at the evidence presented in the APS hearing. No additional evidence, statements or opinions will be looked at. The review is looking for legal or factual mistakes that the hearing officer made. An example of a factual mistake would be the hearing officer making a determination that the driver’s blood alcohol concentration was at or above 0.08% at the time of driving. If the hearing officer is mistaken about a critical fact like this, the internal DMV appeal should catch it and correct the error. An example of a legal error is: the hearing officer applies an improper law or rule to the driver’s case. Again, the internal DMV appeal process is designed to catch this.
Writ of Mandate: Court Appeal
If the internal DMV Appeal doesn’t work, drivers can then seek relief in the appropriate Superior Court in the county they currently reside in. The process starts with the filing of a “petition” for the writ, which is a essentially a court order that will over turn the DMV’s adverse ruling. Once the petition is filed, the court will set a trial setting schedule, where the parties meet and confer to discuss possible settlement and to set the calander for the hearings that involve the writ before the court. An “opening brief” is the next document that the driver would file: it will lay out the legal and factual arguments the driver wants the writ court to review. The DMV is represented by the office of the California Attorney General, and is tasked with filing an “opposition” brief that attacks the arguments laid out in the driver’s petition and opening brief. The driver is allowed to file a “reply” which is meant to answer the issues raised in the DMV’s opposition brief.
The writ court will then review the papers and issue a ruling. If the driver loses, they can appeal to an appellate court to review the decision of the writ court. This step is the step of last resort and is very expensive and time consuming.
DMV appeal reference links:
Writ of Mandate: A writ of mandate is a fairly complex legal tool that involves a higher court ordering a lower court or administrative body to do a particular thing, or un-do a particular thing. In the context of APS rulings, the writ that the driver would seek would be an order to the DMV administrative body to un-do a driver’s license suspension.
DMV internal appeal: The DMV internal appeal is often the first avenue of attack when fighting an adverse DMV decision