DMV DUI Appeal Options

The goal of a San Diego DUI attorney is to prevail at the California DMV administrative hearing.   If DMV upholds the suspension action, unless the driver is eligible for a restricted driving privilege, the DMV Manual explains these two “appeal” options available to the lawyer:  (1) Departmental Review and (2) Superior Court Review – a civil lawsuit in the form of a petition for writ of mandamus:

“12.180 DEPARTMENTAL REVIEW AFTER A HEARING

If the driver is not advised of the decision at the end of the hearing, tell them the decision will be mailed shortly. Inform the driver if the Notice of Findings and Decision (DS 2358) indicates an adverse decision, it also states they have a right to a departmental and court review.

If the driver is notified of an adverse decisionat the conclusion of the hearing, inform the person of their appeal rights and affix the written request (DS 2426, or blank paper) to the file. The departmental review fee of $120 shall accompany the request for a review. The individual file, hearing disk, request for departmental review, documentary evidence, and
findings of fact are sent to the headquarters’ Driver Safety Appeals Unit (DSAU) where the departmental review is conducted. DSAU issues the order and updates the driving record.

An exception to sending the file, etc., to the DSAU is when an intelligible and complete audio recording of the hearing is unavailable. In this case, consult with management to decide whether the case should be reopened or set aside, depending on the timeliness of the action, the date the hearing was held, and when the driver was notified of the results of the hearing. (The denoted forms are located in Appendix A.)

NOTE: The $120 fee does not apply to a request for a departmental review of any other hearing type, including hearings conducted pursuant to §13353.1 VC, PAS or other Chemical Test Refusal Under Age 21.

12.185 COURT REVIEW

Under §13559 VC, a driver who has received a notice sustaining an APS suspension or revocation may file a petition (Writ of Mandate) in the superior court of the driver’s resident county, to have the order reviewed. The court’s review is based upon the department’s hearing record only, without any consideration of other evidence.

If the driver’s case has been reviewed by the department, the filing must be within 90 days of receiving the department’s decision, and does not stay the suspension or revocation action. If the driver’s case has not been reviewed by the department, the filing for court review must be within 30 days from the mailing date of the Notice of Decision.

A finding by the court under this section has no collateral estoppel effect on a subsequent criminal prosecution and does not preclude litigation of those same facts in the criminal proceeding.”

[DMV Driver Safety Manual, Chapter 12, APS Hearings, pages 12-80 and 12-81]