It is simply a fact that many, if not most, drivers lose at their Administrative Per Se (APS) Hearing. The APS hearing is an administrative hearing and unlike criminal hearings, the driver is not afforded the same due process rights a guaranteed by the Constitution in criminal trials. The legal standards are not as strict in an administrative hearing and the DMV officer who makes the decision about the suspension of the driver’s license to drive sits as prosecutor and judge. While this doesn’t sound very “Constitutional,” the appellate courts have long held that certain Constitutional rights do not apply to administrative hearings.

But you do have the right to challenge the administrative court’s decision. The procedure by which the decision can be challenged is by petitioning a higher court for a Writ of Mandate, also called a Writ of Mandamus. This writ is a civil procedure by which you can petition a court of law to review the administrative court’s decision. If the higher court determines that the administrative decision did not proceed in accordance with the law or that the administrative decision was not supported by the evidence, the higher court can order the administrative court to rehear the matter in accordance with the higher court’s findings or even order the administrative court to reverse its decision.

When challenging a DMV APS hearing finding, the petition for Writ of Mandate is filed with the superior court. This is a civil matter, not criminal.

To be honest, it is difficult to prevail on a Writ of Mandate but it is not impossible especially if the APS hearing was legally defective or the hearing officer ignored exculpatory evidence. Under most circumstances you cannot present any new evidence on the writ; the evidence is limited to what was heard at the APS hearing. Even though the higher court is supposed to use its independent judgment when considering the writ , the court also “‘must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.)

What type of issues might be challenged by a Writ of Mandate?

Every case is different but there are some common issues that are ripe for a challenge by Writ of Mandate. One of the most common challenges is that the traffic stop was unlawful. If the traffic stop was unlawful, it follows that the arrest was unlawful. DMV hearing officers will almost always ignore a questionable traffic stop in making his or her decision. But if, for example, there was no evident reason for the cop to have stopped the driver in the first place, the traffic stop and consequently the arrest was illegal. Another related challenge concerns DUI checkpoints. There are specific rules the police must follow in administering a DUI checkpoint and if they violate any one of these rules, the traffic detention may be unlawful. Another area that may present an opportunity to challenge the APS decision concerns the chemical tests: how they were administered, the results, or foundation for these tests.

An unjust or unlawful APS decision can be and should be challenged but the process is somewhat complex and you would be well-advised to consult with an experienced defense attorney who can help you assess the strengths and weaknesses of your challenge to the APS decision. If you have any questions concerning the APS Hearing or challenges to an APS decision to suspend your license, contact Orange County Criminal Defense Attorney William M. Weinberg at his Irvine, California office at 949-474-8008.