Why does California DMV tell the public: “Get a DUI, Lose Your License?” Because DMV can.
If you think your San Diego DUI DMV defense attorney only has to persuade one two-headed hearing officer – A) Prosecutor or”Advocate for the Department” and B) Judge – think again.
A San Diego DMV hearing officer and his or her administrative per se (APS) decisions are “managed” by “the driver safety Manager I position who supervises and manages the hearing officers. Six to eight San Diego DMV hearing officers and their APS decision are usually supervised by one California DMV Manager I.
DMV tells the public that the hearing officers “close” the hearing and “need to deliberate and carefully review the record before making a decision.” [California DMV administrative hearing Manual, 12.164 Closing the Hearing] So what really goes on?
If your San Diego California DUI DMV lawyer Specialist successfully convinces the hearing officer that DMV should take no action against your driver’s license at the hearing, the hearing officer must then go to Manager I to discuss pending decisions in APS proceedings and to seek expedient guidance in how to decide the case. The case can be decided by taking no action (“set aside”) or by upholding the DMV suspension action.
This sort of consultation between hearing officers and managers could have an impact on and influence the hearing officer’s decision-making process. As supervisors of hearing officers, the DMV managers are in charge of hearing officers’ schedules, time-offs, training assistance, retraining, and review of the quality of decisions.
A big part of their training is to make sure they have all the evidence they want before they finish the hearing. If that means granting themselves a continuance at the drop of any hat, so be it. DMV liberally uses its Manual to justify good cause for any such continuance.
Managers compel hearing officers to place their set aside decisions in a separate box for managerial review and critique. Managers specifically review the evidence and the recording of the APS hearing to see if everything was done in accordance with their training, department procedures, and policies. The manager specifically focuses on the “decision” made by the hearing officer and how the hearing officer arrived at that decision.
The DMV Manual publicly states DMV hearing officers must make negative findings and take no action in certain situations. Why doesn’t the DMV Manual ever refer to the behind-closed-doors post-hearing consultation with the manager?
During the post-APS hearing consultation, after the hearing officer tells the manager what decision he or she has decided to make, the Manager I could ask the hearing officer if he or she has thought about other legal considerations.
For example, a hearing officer will initially tell Manager I what his or her decision will be, that he or she considered the defense attorney’s legal argument and is willing to make a decision in accordance with that. Then Manager I may suggest to the hearing officer: “Well, have you thought about (a different consideration or argument)?”
This decision-making process is without the benefit of a DMV defense lawyer being present. The driver’s DMV defense attorney is never notified or brought back in when the hearing officer accepts the Manager I’s suggestion that he or she make a different determination of the evidence. So when the Manager I comes up with a completely different idea which was not considered during the course of the hearing, the lawyer is not given a chance to counter that idea. There is then no opportunity for the reopening of the hearing to permit the defense attorney a chance to have a say.
The San Diego DMV management takes the position that once all of the evidence has been put on the table and the defense lawyer has had his opportunity to present all of his evidence and to make closing remarks, that there is nothing new to add. The case is closed. The Manager and the hearing officer are just looking at the evidence during the post-hearing consultation. No new evidence is added by DMV.
It is therefore important for DUI attorney to know the San Diego hearing officer’s propensities and tendencies in advance. It is even better if that DMV lawyer understands what the Manager I may counter with, in the event the hearing officer may adopt the defense counsel’s contentions, including what is mandated in DMV’s manual.
The bottom line is that it is difficult – but not impossible – to get the DMV to issue a set aside decision which results in no action against the driver’s license. Before that set aside order is mailed to the driver and his attorney, intricate hoops exist behind closed doors, with the foremost notion being that it is the job of the hearing officer to promote traffic safety.
So, could one go so far as to say California’s San Diego DMV hearing officers’ managers interfere with the hearing officers’ decision-making process?
DMV knows how hard it is to appeal a suspension action. So DMV makes it hard on attorneys and their drivers.
On October 7, 2008, San Diego’s Regional Manager wrote all hearing officers in his region, ordering them to place their set aside decisions in a separate box in the file room, for managerial review and critique. He noted he would be reviewing all set asides for quality.
On October 27, 2008, he wrote to all hearing officers and other Driver Safety Staff: “To date, I have reviewed 17 set asides. The results are: 6 are good decisions; 4 are questionable need review of the recording to make determination; and 7 are unwarranted set asides. These results are terrible, in that we have no rookie hearing officers. Should you be responsible for any of the 7 unwarranted set asides, your manager will be discussing the case(s) with you, if they haven’t already.”
Such discussions are part of a progressive disciplinary system utilized by California DMV.
As an expert on the DMV’s disciplinary system, the regional manager described in a lawsuit entitled Prizzia v. DMV [Orange County Superior Court Case No. 30-2013-00632497-CUI-CR-CJC”] a situation where a hearing officer was disciplined for, in the opinion of management , setting aside too many suspensions in a proceeding. He described the employee who was simply making poor decisions in the opinion of DMV APS management. He maintained that upon review of the evidence, it supported a suspension action, yet the hearing officer would set the action aside. He elaborated by suggesting management thought the hearing officer acted in the following ways: incompetency, inefficiency, and inexcusable neglect of duty.
Lastly, San Diego DMV hearing officers have no obligation to assist a person representing himself or herself as a “pro per Respondent” in presenting any evidence or rebuttal of DMV’s case or in assisting them in the conduct of the APS hearing. This is yet another reason people should not try to represent themselves.
For more “Things you may or may not know about the California DMV” read this Article.