DMV Administrative Hearing Lawyer in San Jose, CA Ten Days, Four Issues, One Record

The review happens whether or not anyone asks

Section 13557 requires the department to review the officer's sworn report and the suspension or revocation order and to determine, by the preponderance of the evidence, whether the facts stated in the report are established (Vehicle Code 13557). In a test case the issues are whether the officer had reasonable cause to believe the person was driving in violation of section 23136, 23140, 23152 or 23153, whether the person was lawfully arrested or, for a section 23136 determination, lawfully detained, and whether the stated concentration was reached. In a refusal case the issues are reasonable cause, lawful arrest or detention, whether the person refused or failed to complete the test after being requested, and whether the person had been told that a refusal or failure would result in the suspension or revocation of the driving privilege. If any of those facts is not established, the statute directs the department to rescind the order.

Ten days, and what the ten days buys

Section 13558 gives a person who has received a notice of order of suspension the right to request a hearing, and provides that where the request is received within 10 days of the receipt of the notice, the department must hold the hearing before the effective date of the order (Vehicle Code 13558). The DMV states the same deadline on its administrative hearings page and adds that hearings are recorded and conducted remotely by videoconference or in person before a Driver Safety Hearing Officer (California DMV). Section 13558 also states that a request does not by itself stay the order, but that if the department fails to make a determination within the statutory time it must stay the effective date pending its decision and extend the temporary permit. Where the order is sustained after a hearing, the suspension becomes effective five days after notice of that determination.

What the hearing is not for

The department is explicit that the hearing is an administrative proceeding regarding the driving privilege and the circumstances of the arrest, not a proceeding about criminal guilt or innocence, and that only the enumerated issues will be discussed. It also states that a request for a restricted license cannot be considered at the hearing, and that the hearing officer can only set aside the administrative action (California DMV). Section 13558 adds a limit in the other direction: the period of suspension or revocation may not be reduced, notwithstanding section 14106, and the department's determination has no collateral estoppel effect on any criminal proceeding.

Evidence, representation and the record

Section 13558 provides that the hearing is held as close as practicable to the place where the arrest occurred, and that the evidence at the hearing is not limited to the evidence considered at the administrative review. The DMV states that at the hearing the driver is informed of the legal grounds for the action and has the opportunity to review and challenge the department's evidence, to present evidence, witnesses and testimony, and to cross-examine the department's witnesses, and that the rules controlling the hearings come from the Vehicle Code, the Administrative Procedure Act in the Government Code, and appellate and Supreme Court rulings (California DMV). The department states that a person has the right to be represented by an attorney or other representative at their own expense and is not required to be represented.

After the decision: departmental review and superior court

Two routes exist after an adverse determination. The DMV states that a person has the right to request a departmental administrative review of the hearing decision, and that legislation authorizes the department to collect a $120 fee for a departmental review following an administrative per se hearing (California DMV). The judicial route is section 13559, which allows a person to file a petition for review in the court of the county of residence within 30 days of the issuance of the notice of determination. The court's review is on the record of the hearing, and the statute permits an order of rescission where the department exceeded its constitutional or statutory authority, made an erroneous interpretation of the law, acted in a manner that was arbitrary and capricious, or made a determination that is not supported by the evidence in the record. Filing the petition does not stay the order (Vehicle Code 13559).

A second window that opens later, and where the hearing happens in San Jose

Section 13353.2 contains a provision that is easy to miss. If the person's driving privilege was suspended and the district attorney elects not to file charges due to insufficient evidence, or the charges are dismissed for insufficiency of evidence, the person has a renewed right to request a hearing, and that request must be made within one year from the date of arrest (Vehicle Code 13353.2). Hearings for this area are handled by the Driver Safety Office at 90 Great Oaks Blvd., Suite 104, in San Jose, reachable at (833) 543-7703 (California DMV). This page is general information about California law and is not legal advice. Because the request window is measured in days, anyone who has received a notice of suspension should speak with a licensed California attorney quickly; the attorney who advertises on this site can be reached at the number posted here.