California DMV Administrative Per Se Hearings

As previously discussed on this website (here and here), a DUI arrest results in two separate proceedings: The Administrative Per Se Hearing and a criminal court hearing. Even if the criminal case is dismissed, the driver can still find his or her California driver license suspended by the DMV and be subjected to other administrative orders. How is this? In a nutshell, California law provides that the DMV can suspend the license of a driver who is arrested for a blood alcohol level over the legal limit regardless of any criminal (DUI) proceedings. The process is separate from any criminal court case and essentially gives the DMV as much or more power than a superior court judge. In fact, every year the DMV suspends or revokes the licenses of drivers whose DUI arrest never resulted in criminal charges or whose criminal cases were dismissed for lack of evidence.


Several appellate cases have challenged this process but, for the most part, the DMV hearing regime remains intact. Last year, the California DUI Lawyers Association decided to take another approach. They filed a civil lawsuit on behalf of California taxpayers against the California Department of Motor Vehicles. The lawsuit alleges that DMV Administrative Per Se Hearing Officers have a conflict of interest because not only are these hearing officers the decision maker regarding the suspension (or revocation) of the DUI arrestee’s license but the hearing officer also represents the DMV, in effect, as the DMV’s prosecutor. A fair analogy would be allowing the district attorney to also be the judge in a criminal case. This, the lawsuit contends, is a violation of due process.


Despite California appellate cases that have held that the DMV Administrative Per Se Hearing is constitutional, there is a strong legal argument that the DMV Hearing Officer is not an impartial arbitrator as due process demands. The California Supreme Court held that “[w]hen due process requires a hearing, the adjudicator must be impartial.” (Haas v. County of San Bernardino (2001) 27 Cal.4th 1017 at 1025.)


The California DUI Lawyers Association’s lawsuit, which was filed in Los Angeles County Superior Court on August 1, 2014, is pending. The plaintiff does not seek money damages but rather requests an order for declaratory and injunctive relief. The lawsuit asks that the court compel the DMV to reform its Administrative Per Se system by implementing a fair and neutral decision-making procedure in its DMV administrative hearings.

It’s no secret among DUI defense attorneys that a driver rarely wins if he or she challenges a DMV Administrative Per Se license suspension. Many attorneys who are experienced with the process even consider the whole regime “rigged.” After all, when the hearing officer, who is not a lawyer or judge but rather an administrative functionary, is the one who decides on the suspension (or revocation) of the driver’s license—usually based on nothing but the police report—and at the same time is representing the DMV, the process is inherently unfair. How can the hearing officer be impartial when he or she is, in effect, advocating for the DMV? The lawsuit is scheduled to go to trial in May of 2016.