Appellate Court Rules DMV Hearings are Unconstitutional

As the reader of this website may already be aware, if one is arrested or even cited and released (i.e., because one is injured and taken to the hospital) for DUI, the police officer will take the driver’s license of the suspect.  The driver then must contact the DMV within ten days to reserve and schedule a DMV hearing known as an admin per se hearing.  The purpose of such a hearing is for the DMV to decide whether to suspend the driver’s license of the person arrested or cited for DUI.

The DMV hearing is not associated with any criminal prosecution of the driver and the judge in court, as well as the prosecutor in court, often is unaware of what goes on at the DMV Hearing.  The criminal case in court may be dismissed or not even filed and that is irrelevant to the DMV.  Likewise, a driver may “win” at the DMV and prevent a suspension of his or her license by the DMV and the prosecutor is not obligated to similarly dismiss the DUI criminal case in court.

The DMV hearing is considered an administrative hearing, so there are different rules of evidence and procedures  There is a DMV hearing officer who conducts the hearing and makes a ruling.  That officer, until a recent ruling summarized below, would cross-examine the driver if the driver testified, would present witnesses on behalf of the DMV to suspend the license and would otherwise represent the government’s interest in trying to suspend the license.

The same officer would then issue a ruling on whether to suspend the driver’s license.

We always bristled at the inherent unfairness of having the DMV hearing officer, who is not an attorney and often seems confused by legal arguments, being the judge and the same person who represented the DMV.  It always seemed fundamentally unfair.  We have called such hearings a “kangaroo court,” as they can be frustratingly difficult to win even when the facts and the law clearly seem to favor the driver. 

This inherent unfairness may be about to end.  On Monday, April 15, 2022, the Second Appellate District Court issued its ruling in California DUI Lawyers Association v. California Department of Motor Vehicles (2022 DJDAR 3721), addressing the structural and procedural format of the hearings. 

The California DUI Lawyer Association, or CDLA, brought a civil case against the DMV and its director for injunctive and declaratory relief, arguing that the DMV, through its DMV admin per se hearings for DUI described above violated 42 U.S.C. § 1983 affecting due process rights under the Fourteenth Amendment to the U.S. Constitution and the California state constitution. 

The CDLA also argued that Vehicle Code § 14112(b), allowing for the DMV hearing officer to simultaneously be both an advocate for the DMV and an adjudicator (judge) was unconstitutional as a violation of due process by permitting the DMV to combine the advocacy and adjudicatory roles into one hearing officer.  In other words, the hearing officer could not be neutral if the hearing officer also was trying to present evidence to suspend the driver’s license.

The Secondo Appellate District court agreed, finding that the lower court’s ruling requiring actual evidence of bias to show a violation constituted a legal error as such evidence was unnecessary.  The statute’s provision allowing such a dual role created an unacceptable risk of bias and was itself a due process violation.

The CDLA also argued that the DMV’s policies of allowing its managers to change a hearing officer’s decision, or order the hearing officers to ex parte change their decisions, without notice to the driver to respond, was a further violation of the driver’s procedural due process rights under article 1, section 7 of the California Constitution and the Fourteenth Amendment to the United States Constitution.  The Second Appellate District agreed with the CDLA on this argument as well. 

 

The appellate court then ordered that the DMV is permanently enjoined from ex parte communications between its managers and DMV hearing officers to change rulings from DMV hearing and, further that the DMV is permanently enjoined from having its hearing officers function as advocates for the position of the DMV in addition to being finders of fact in the same adversarial proceeding.

What this means to pending DMV hearings is unclear.  We believe all future DMV hearings may be referred to an administrative law judge and the DMV hearing officers will continue as representatives of the DMV, advocating for suspension of the license as before.  Alternatively, the DMV may henceforth bar its hearing officers from gathering evidence and cross-examining witnesses as advocates for the DMV, but the same officers will continue to function as a judge in the hearing. 

Third, the DMV may simply have two DMV hearing officers assigned to each DMV hearing, one to be the judge and one to be the advocate for the DMV.  This third response, while perhaps most economical, will only perpetuate the structural unfairness of the hearings, we think, as the two hearing officers are not attorneys and the “judge” officer may direct the other hearing officer on how to present evidence for the DMV and cross-examine witnesses.

The citation for the Second Appellate District Court ruling discussed above is California DUI Lawyers Association v. California Department of Motor Vehicles (2d App. Dist., 2021) 77 Cal. App. 5th 517, 292 Cal. Rptr. 3d 608.

For more information about DMV hearings, please click on the following articles: