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By Castillo Harper, APC | July 7, 2022 | Posted in PORAC LDF News

Update: CA DUI Lawyers Association v. CA Department of Motor Vehicles

Certified Law Clerk
Castillo Harper, APC

Even police officers make mistakes and, unfortunately, occasionally some of our PORAC Legal Defense administrative caseload involves the police officer arrested for off-duty driving under the influence. For the officer, that involves the criminal defense component, the Department of Motor Vehicles license suspension component and then later the Legal Defense Fund component when the employing agency takes disciplinary action for the violation of rules, regulations, misdemeanor statutes and the license suspension. For an officer facing a DUI, the trifecta can be especially expensive, problematic and embarrassing.

A valid California driver’s license is a job requirement for a police officer, and even a temporarily suspended one can be a difficult hurdle to overcome. The DMV conducts administrative hearings to determine whether the suspension of a driver’s license is warranted after the driver has been arrested for driving under the influence. The administrative per se law, Cal. Vehicle Code § 13353.2 (a), states the following:

“The department (DMV) shall immediately suspend the privilege of any person to operate a motor vehicle for any of the following reasons:

  1. The person was driving a motor vehicle when the person had 0.08 percent or more, by weight, of alcohol in his or her blood.
  2. The person was under 21 years of age and had a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test or other chemical test.”

The procedure is called “administrative per se” because it does not impose criminal penalties, but simply suspends a person’s driver’s license as an administrative matter upon a showing the person was arrested for driving with a certain blood-alcohol concentration, without additional evidence of impairment, as explained in MacDonald v. Gutierrez (2004) 32 Cal. 4th 150, 155.

The express legislative purposes of the administrative suspension procedure are: (1) to provide safety to persons using the highways by quickly suspending the driving privilege of persons who drive with excessive blood-alcohol levels;  (2) to guard against erroneous deprivation by providing a prompt administrative review of the suspension;  and (3) to place no restriction on the ability of a prosecutor to pursue related criminal actions (Lake, supra, 16 Cal.4th at p. 454, fn. 1, 65 Cal.Rptr.2d 860, 940 P.2d 311).

At these hearings, the DMV mandates that the hearing officers simultaneously act as advocates for the DMV and as triers of fact on the substantive issues. The DMV also authorizes its managers to change hearing officers’ decisions or order the hearing officers to change their own decisions, without notice to the driver.

California DUI Lawyers Association v. California Department of Motor Vehicles, a recent California District Court of Appeals, Second Appellate District, Division Four case from April 2022 ruled that California DMV admin per se hearings were deemed unconstitutional. During these hearings, the DMV employed a single hearing officer as both prosecutor and judge in determining if a driver’s license would be suspended based on a preponderance of the evidence standard. When DMV hearing officers would grant a “set aside” motion for the suspension of a person’s driver’s license in an admin per se hearing, the suspension orders were sometimes reversed by a DMV Driver Safety Office manager who didn’t agree with the ruling of the admin per se hearing officer’s final hearing judgment on the merits, even though the DMV Driver Safety Office manager did not participate in the hearing.

The California District Court of Appeals, Second Appellate District, Division Four in Los Angeles County ordered that DMV Driver Safety Office managers may no longer overrule the admin per se hearing officer’s final judgment. The California District Court of Appeals also mandated that the California DMV may not advocate on behalf of the DMV’s interests while having the same person simultaneously playing fact-finder and decision-maker. This seems like commonsense due process. As a result of this ruling, the DMV has been postponing currently scheduled hearings as it endeavors to figure out how to comply, given current staffing levels.

About the Author
Daniel Caballero is a labor representative and certified law clerk at Castillo Harper, APC. He came to Castillo Harper, APC, with 22 years of experience as a law enforcement officer from a Southern California agency. This case was especially interesting to Daniel as he spent five years assigned as a traffic officer. He is currently attending California Desert Trial Academy College of Law and obtained his undergraduate degree from Columbia Southern University. Daniel assists with matters related to the Public Safety Officers Procedural Bill of Rights Act, grievances and labor association matters.