SUE THE DMV TO GET YOUR LICENSE BACK

THE DMV IS UNFAIR

The DMV Administrative Per Se Hearing is a grossly unfair process. The DMV uses a single bureaucrat who has no legal training to act as judge (determine what evidence is admitted), jury (determining guilt or innocence), and prosecutor - and this non-lawyer bureaucrat has a supervisor looking over their shoulder making sure that they maintain a 95% or higher conviction rate! What kind of process is this?

And this bureaucrat who has no legal training just ruled against you in a way that is horribly unfair?

WRIT OF MANDATE LAWSUIT

Time to sue the DMV! The procedure is called a Writ of Mandate lawsuit. It is not like an ordinary lawsuit. You don't get to seek money. You seek an injunction from a REAL JUDGE to order the DMV to give you your license back.

PROCEDURES

1. Prepare the majority of the content for the following documents. You will leave blank for now all references to dates and times of the lawsuit hearings (that comes later)
   • WRIT PETITION PACKET
     • Writ Petition - This is the main complaint against the DMV.
       • You have to establish what the court's jurisdiction is and ensure that you choose the right venue and justify the venue as well. The jurisdiction is explained by referencing Cal. Code Civ. Pro. Section XXXXX and Cal. Veh. Code Section XXXXX. Venue, according to Cal. Veh. Code Section XXXXX is the county in which the driver lives.
       • The next part is to lay out the basic undisputed background facts of the case. What date did the DUI arrest occur on? What date was the APS hearing requested? What date(s) did the APS hearing happen on? Who testified? What is the relevant driver history - such as is this a first offense? A second offense? Was there an allegation of refusal to submit to the chemical test? For this part, do not get argumentative or deal with facts that are in dispute. If you didn't refuse but the DMV alleged a refusal, just say that "The DMV alleged that the Petitioner refused to submit to a chemical test". The explanation of why you were justified to refuse or why you didn't refuse is dealt with later on. Stating that the DMV is ALLEGING a refusal is not disputed. Only the actual issue of whether or not you refused is disputed. I hope that distinction is clear.
       • NOW you lay out the disputed facts. In the example of a refusal, state "The evidence at the hearing shows X". Example: The evidence at the hearing shows that the officer did not read the DS 367 refusal admonition". Keep this stuff as generic as possible. Your complaint just needs a few basic facts.
       • Make sure that put in your claim that the DMV acted in (XXXXX). This language comes straight from the statute: Cal. Veh. Code Section XXXXX. This gives the judge the ABILITY to say that you win for ANY of those above reasons.
       • Ask the Court to issue an injunction to order the DMV to reinstate your license.
     • Civil Case Cover Sheet. The link is here: "Judicial Counsel Form XXXX"
     • NOTICE OF WRIT PETITION - This is a fairly simple document. It basically lays out the date and time of the hearing on the main writ petition.
   • EX PARTE APPLICATION PACKET - I assume that you don't want to wait a month or two or three on a suspended license? Then you will want to do an Ex Parte Application for Preliminary Injunction. Prepare all the following documents in as much detail as possible. Again, you will be missing dates and times of hearings initially. You will get all of this stuff later.
     • NOTICE OF EX PARTE APPLICATION - This is a document that lays out when the Ex Parte Hearing will be and also includes the information on the NOTICE OF WRIT PETITION from your main Writ Petition Packet.
     • EX PARTE APPLICATION (Main Document) - This is your main document where you ask for the judge to give you your license back immediately until the main writ hearing happens. You need to put your law and facts together here. The main case: Butt v. California lays out the standard for granting a preliminary injunction. It has two issues you need to present. Question 1 is IRREPARABLE HARM. You need to show why if you don't get your license back you will suffer irreparable harm. If you must have your driver's license in order to keep your job, then the irreparable harm of loss of your license is loss of your job. The second issue you need to deal with is LIKELIHOOD OF SUCCESS ON THE MERITS - Why are you going to win the main writ petition? This is an intensely fact based situation. Using the example of a refusal listed above where we claim that the officer did not read the refusal admonition - you need to make your legal argument about why the officer failing to read the admonition is fatal to the DMV upholding a revocation based on refusal to submit to the chemical test.
     • DECLARATION OF CLIENT ABOUT HARMS - In the Ex Parte Application, you have to show irreparable harm. But the statements made in that document are NOT evidence. You need to present evidence of the irreparable harm. A declaration is evidence because it is a sworn statement made under penalty of perjury. The law actually requires a declaration of harms. So in your declaration state why you are harmed by the loss of your license.
     • DECLARATION OF ATTORNEY (Or a 2nd Declaration of the Driver if you are doing this on your own) - This lays out the evidence to back up your claims of fact about what the evidence was in the Administrative Hearing. I keep this limited to things like "Attached to this declaration is Exhibit A, a true and correct copy of the NOTICE OF DECISION". "Attached to this declaration is Exhibit B - the Driving Record of the Driver that was included in the DMV discovery packet." Attached to this declaration is Exhibit C - The remainder of the DMV Discovery Packet (not including the driving record)". "Attached to this declaration is Exhibit D, a transcript of the hearing that occurred on XX/XX/2021". "Attached to this Declaration is Exhibit (E, F, G, etc) - Some other piece of evidence that was actually admitted into evidence at the administrative hearing."
     • Proof of Service - You will initially need to serve a copy of these documents on DMV Legal, which is located at 2415 1st Ave, Sacramento, CA 95818. Make sure that you include a list of ALL DOCUMENTS that you are serving - including the documents in the WRIT PETITION PACKET and the EX PARTE APPLICATION PACKET - AND DO LIST THIS DOCUMENT (one of the documents listed should be "Proof of Service".)
2. CONTACT THE CIVIL CLERK IN THE COUNTY YOU ARE FILING - REQUEST A DATE FOR THE WRIT PETITION HEARING.
   • Edit the following documents to include the date that you received:
     • WRIT PETITION PACKET
       • WRIT PETITION
       • NOTICE OF WRIT PETITION
     • EX PARTE APPLICATION PACKET
       • NOTICE OF EX PARTE APPLICATION
       • EX PARTE APPLICATION
3. Print and Sign all documents in your Writ Petition. Scan them to pdf format.
4. FILE all documents in the WRIT PETITION PACKET - $435 filing fee (as of June 10, 2021)
   • IF YOU ARE AN ATTORNEY, check to see if e-file is available for the CIVIL-UNLIMITED in the County you are filing in. If yes, you must E-File. I hope you have an e-file account already set up and are used to it. If not, good luck. This is NOT an intuitive process. Clerks do not like the use of the attachment feature in e-file. Each document should be filed as a separate "main document" filing. BUT it can all be done in one e-file envelope. For the Declaration of Attorney that has all the attachments, merge all attachments to the declaration to create ONE pdf that includes the declaration and all attachments. Don't forget to use a mostly blank page that has just "EXHIBIT A", etc as Exhibit Page Markers. I like to also include a page just after the declaration and before the attachments that is a table of contents for the attachments, listing what PDF page number each attachment cover page is on.
   • IF YOU ARE FILING THIS ON YOUR OWN FOR YOURSELF - You will have to go to the courthouse and file the document with the clerk.
5. CONTACT THE CIVIL CLERK; FIND OUT WHAT DEPARTMENT YOU ARE ASSIGNED TO; CONTACT THE CLERK FOR THAT COURTROOM; REQUEST EX PARTE HEARING DATE
   • Make the following edits
     • All documents in Ex Parte Application Packet need to be edited to include the case number, which you should now have.
     • All documents in Ex Parte Application Packet EXCEPT the Proof of Service should now have the Ex Parte Date added in the correct places
6. SERVE the WRIT PETITION PACKET & the EX PARTE APPLICATION PACKET on DMV at 2415 1st Ave; Sacramento, CA 95818 - Must be served no later than 10am on the day prior to the Ex Parte Hearing Date. All documents should be signed before serving EXCEPT the proof of service document.
7. FILE the EX PARTE APPLICATION PACKET, including the now-signed proof of service document.
   • This must be filed as "EX PARTE NOTICE REQUIRED" and has a $60 filing fee as of June 10, 2021.
8. ATTEND the EX PARTE HEARING DATE. Be ready to face questions from the judge. And good luck!

OTHER THINGS YOU HAVE TO DO

1. Order the Administrative Record. - Cost $115 non-refundable minimum. It can and does go higher. Pay attention to the invoice you receive later. It must be paid immediately upon receipt. There is no in-person drop off point for sending this stuff. You have to mail it. I live just down the street from their office and I have to mail it. Do not delay. Delay on your end can cause major problems.
   • Send a letter to: Department of Motor Vehicles; Attnetion Driver Safety Litigation Unit; 2570 24th Street; Mail Station - J256; Sacramento, CA; 95818. Include the driver's license number, all dates that the hearing occurred on, the court case number for the writ of mandate, and the best way for them to contact you in writing (mail, fax, email, etc).
   • Include a check to DMV for $115 (last confirmed the amount as of June 11, 2021)
   • Expect that they will send an invoice for more money later once they know the final amount. The $115 is non-refundable, but the cost can and probably will go considerably higher.
2. Get the CD's of the Administrative Hearing on your own. These are cheap. $5 per CD (one CD per hearing date if you had more than one hearing date) is the rate that I was charged on my last request.
   • Go to the Driver Safety office where your hearing was held and request the CD's. This should be done as soon as you get your letter from DMV that they decided to rule against you.
   • Once you get the CD recording, transcribe it. Yes. This is tedious. But you will want to have this rough transcript as an exhibit in your Ex Parte Application. So do it. It costs $5 per CD as of June 11, 2021.