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DMVs power to take away your license when facing a San Diego DUI with the APS Hearing

On Behalf of | Sep 10, 2014 | Firm News |

I am proud to say I am a member of the organization challenging the law as it currently stands. When I was a prosecutor I remember several defense attorneys lamenting about the actions of the DMV to their client on their San Diego DUI case. As a prosecutor I had an interest in the hearing because I could pick up nuggets of information as to opposing counsels defense and arguments.


When I became a private attorney I jumped into DMV law as it pertains to San Diego DUIs. I came up with one word……Pruge. This is what I called the hearing officer. I have never heard of a situation where someone can be the judge and prosecutor. It is tough to make legally sound objections only to be overruled by that person.

The worst part is the license restricted is the sanction that most people are worried about with a San Diego DUI. When I talk to people about their charges their driving privilege is usually the second worry past jail time. Most people can navigate the sanctions of a San Diego DUI as long as they can usually continue their lives. The ability to drive is usually essential in someone earning a living.

If the San Diego DMV suspends your drivers license there is a “hard” suspension, in which there is NO ability for a person to drive. After the “hard” suspension the driver will have the ability to likely obtain a restricted license depending on whether they have completed a few other terms.

The San Diego APS hearing process is very different from the court process. The attorney heads to the DMV office (pictured below) in Mission Valley (a few hearings are held at the Poway DMV).

The hearing officers room reminds me of my vice-principals office in high school. After some pleasantries, they turn on the CD and the hearing begins. The attorney should come ready with a brief, case law, and some highlighted arguments.

The attorney then will get likely a series of “noted objections” and overruling of those objections.

It is a lesson in patience and keeping to your points of contention.

In the end, I hope there is an adjustment to the San Diego APS process. It really violates due process. I hate seeing my client penalized with a suspended license even before we walk into our first court date. It really is crazy that such a penalty can occur without due process. The anchor of their evidence…..”a San Diego Police Report”. Never I have seen such faith in a report (that usually is fraught with inaccuracies).

The issue is not whether to be tough on San Diego DUI drivers or not. Our community decides what is the penalty. However, that penalty should not be imposed unless there is due process of our citizens. The story below illustrates this issue.


Thuan Ha was arrested on drunken-driving charges but was never convicted of his DUI-related charge. The California Department of Motor Vehicles still suspended his driver’s license for four months.

How did that happen?

An Orange County judge threw out Ha’s DUI case, ruling officers had illegally obtained a test showing Ha’s blood-alcohol level was over the legal limit. Yet a month later, a midlevel DMV employee suspended the Westminster resident’s license based on the same evidence the courts rejected.

“The DMV officer convicted him, suspended his license and put the DUI on his record,” said Ha’s attorney, Alex L. Benedict. “How can the DMV have such power over a criminal judge?”

The power comes from a little-known law that grants the DMV the authority to suspend the license of anyone arrested on charges of driving with a blood-alcohol content over the legal limit. The law has been in effect for nearly 25 years, but it now faces a legal challenge in a lawsuit filed by a nonprofit group called the California DUI Lawyers Association and attorney Steven R. Mandell.

The lawsuit contends that allowing DMV employees to act as prosecutor and judge in administrative reviews is a violation of constitutional rights. It also charges that the DMV employees, who often suspend or revoke licenses based on little more than an arresting officer’s sworn report, are pressured by the DMV to decide against drivers instead of making fair and neutral decisions.

DMV officials declined to comment on the lawsuit.

A review of DMV data from 2012, the most recent year available, found that DMV employees suspended or revoked the licenses of at least 135 DUI arrestees who were never charged with the crime or who had their criminal cases dismissed for lack of evidence.

According to the DMV, “The only instance in which the department will set aside an action as a result of a court decision are in those cases where a driver has (gone to trial and) been acquitted.”

Josh Needle, a criminal appellate and constitutional rights attorney based in Santa Monica, said the DMV’s practice of allowing a single employee to act as both an advocate for the DMV’s interests and decision-maker in administrative proceedings creates a conflict of interest.

“The whole system is just rigged,” Needle said. “It is designed and implemented in such a way that the drivers of the state of California don’t have a fair chance.”

Needle is one of several attorneys who last month filed the lawsuit against the DMV.


In 2011, the most recent full year of data available, 186,712 drivers were arrested on suspicion of DUI in California, according to DMV records. About 20 percent of the arrestees beat DUI-related charges in court, yet thousands of them still lost their licenses.

When asked exactly how many drivers got their licenses suspended that year without being convicted of DUI-related crimes, DMV officials said an accurate count was not available because they had not done the required data analysis.

Along with requiring annual reports, the law passed in 1990 created a DMV administrative system to allow “on-the-spot” license suspensions for drivers arrested on suspicion of driving with a blood-alcohol content over the legal limit, or who refuse to take a DUI test after detention or arrest.

The idea was to “swiftly impose a proven effective DUI countermeasure” that “saves lives by virtue of its immediacy, certainty and severity,” according to a DMV report published in 1998.

After the system was in place, crash rates dropped 19 percent and recidivism plunged 37 percent for people arrested on suspicion of DUI, the report said. “This improvement occurred whether or not the offenders were ever convicted of the DUI offense.”

The administrative suspension process typically works like this: After an officer arrests a driver on suspicion of DUI, the law enforcement agency takes away the driver’s license and gives the driver a temporary one. The DMV’s process starts when the department receives the officer’s sworn report – unless the driver requests a hearing to contest the suspension.

A DMV employee known as a hearing officer reviews police reports and decides whether to impose or discard the temporary suspension, according to the DMV. If the driver requests a hearing, the DMV employee reviews the police report, gathers testimony from the driver and may consider other evidence before ruling.

“The hearing officer has a dual role as the ‘trier of fact’ as well as an advocate for the DMV,” DMV officials said, “but must remain fair and impartial, and render a decision in conformance with the evidence.”

DUI defense attorneys, however, contend “fair and impartial” is an unrealistic expectation.

“They are pressured by the DMV to go ahead and rule against licensees,” said Don Bartell, a defense attorney with Riverside-based law firm Bartell & Hensel. “It’s just an impossible task to be both the prosecutor and the judge.”

Bartell said DMV managers pressure hearing officers by keeping tabs on how many decisions each hearing officer makes in favor of licensees, and, on occasion, telling hearing officers how to rule.

In a written response to questions, DMV officials confirmed the DMV keeps records of hearing officers’ decisions in favor of drivers.

DMV officials also said superiors sometimes reverse hearing officers decision in favor of drivers. They denied hearing officers face sanctions if they decide in favor of drivers too often.


Needle; his co-counsel, attorney Paul Hoffman; and their clients allege that the way the DMV handles administrative suspensions violates due process provisions in the California and U.S. constitutions.

“The Constitution demands neutrality in decision-making and trumps any purported statutory encroachment,” Needle said.

Protecting the public from impaired drivers is important, but so is fairness and justice, Bartell said.

“No one is in favor of drunk driving, but we want to be a nation of laws and rule fairly,” Bartell said. “We get lots of people who are completely innocent and get stopped for the wrong reasons.”

Thuan Ha is one California driver who got stopped for the wrong reasons, Orange County Superior Court Judge Frances Muñoz ruled in May.

California Highway Patrol officers stopped Ha on Feb. 19 for a traffic violation he didn’t commit, the judge said. During the stop, officers became suspicious that Ha was driving under the influence of alcohol, which led to further investigation and Ha’s arrest. Ha’s breathalyzer test showed his blood-alcohol content at 0.11 percent. The legal limit is 0.08 percent.

The judge decided the evidence in the case was “fruit of the poisonous tree” and the court dismissed the case.

Shortly after the court dismissed Ha’s case, the DMV began its license suspension review. The hearing officer disagreed with the judge’s ruling that police didn’t have just cause to stop Ha’s car. She declared the arrest valid and suspended Ha’s license for four months.

Alex L. Benedict, Ha’s attorney, said he was shocked by the hearing officer’s decision.

“In our world, if the case is dismissed with prejudice and it doesn’t have to go to trial, for all practical purposes that is an acquittal because the evidence is so overwhelming that there is no need for a trial,” Benedict said. “The DMV basically ignored that, like a renegade or someone who takes matters into their own hands. But I think it’s because she (the hearing officer) just doesn’t really understand the law.”

Benedict appealed the hearing officer’s decision and paid the $125 fee for a departmental review of the action. The DMV upheld its decision.

To Ha, a 39-year-old estimator for an excavation company,the whole idea that the DMV could punish him after a judge dismissed his case seems wrong.

“Why am I being punished even though I don’t have it (a DUI) on my record?” Ha said. “They are making me go through the process as though I had a DUI, and there is no DUI here. It’s been dismissed; its gone, zip, nada.”

But fighting the ruling is an undertaking Ha said he cannot afford. “I don’t have the $10,000 to fight it, so I’m just going to have to deal with it.”

Hire a Proactive, affordable, and quality defense when you are facing San Diego DUI charges. Whether you have been charged of a San Diego DUI, Poway DUI, La Mesa DUI, Santee DUI, Mission Valley DUI, Clairemont DUI, Point Loma DUI, La Jolla DUI, Carmel Valley DUI, Mira Mesa DUI, Pacific Beach DUI, Del Mar DUI, Carmel Valley DUI, Encinitas DUI, Oceanside DUI, Ocean Beach DUI, Escondido DUI, Vista DUI, San Marcos DUI, Carlsbad DUI, El Cajon DUI it is vital you need to hire an attorney who knows how to defend your rights and can determine if the government can prove their case. Contact the Law Office of Mark Deniz now for a free case evaluation at 858-751-4384 or send an email to [email protected]

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