California Department of Motor Vehicles- Driving ChangeOn February 3, 2015, the FBI issued a press release that a former DMV Driver Safety Officer pled guilty to bribery charges in federal court. The hearing officer, Ms. Benavidez, admitted that from 2005 to 2014 she accepted over $5,000 in bribes, including $250- $750 in checks, Ray Ban sunglasses, Juicy Couture handbag, and Cheesecake Factory gift certificate.
This is disturbing for a number of reasons, but it is not completely unfathomable. Practicing criminal defense with a specialty in DUIs, I pride myself on my diligent DMV representation. My DMV hearings are always in person. The DMV hearing is also an excellent opportunity to learn more about the case.
The DMV hearing is not like any other administrative hearing. First, the hearing officer is the prosecutor and the judge. Many hearing officers are excellent in this capacity, with knowledge in the Evidence Code and applicable case law allowing the defense attorney to present their case and make a record. Bad hearing officers do not know the Evidence Code and believe that confrontation with an attorney is as good as being an attorney. Good DMV hearing officers are also familiar with the applicable legal standards- the elements need only be a preponderance of the evidence, as opposed to beyond a reasonable doubt in a court of law.
The DMV hearings are also reviewed by their supervisors- no “set aside” (when the suspension is ended, and the driving privilege is resumed) is found without a supervisor Making Sure that it is the only, just result. Finally, DMV hearings have the very strong appearance that it is not only important to be right, but to be right for the correct reasons. I call this the algebra factor- it's not the answer, but how you got to the answer. It is a culture in the driver safety offices that it is their job to suspend licenses, and they are encouraged to do so.
The last factor is the remedy for a poorly decided hearing. First, there is a “departmental review.” In this scenario, a recording of the hearing, and all documentation, is sent to a DMV office in Sacramento. The DMV charges $125 for this review, not including what your attorney may charge. I've learned how to maximize the departmental review based on discussions with other defense attorneys comparing tactics and results. During the review, the driver's license is still suspended.
Or, the driver can appeal the case to the Civil Division of Superior Court. It is not a criminal case (recall, driving is a privilege, not a right). So the filing fee is about $365. The court assumes the finding of fact are correct, and it is the legal standard that is reviewed. Prior to the decision, any DUI attorney worth his salt will motion the court for interim relief- that the client be allowed to drive pending the decision. If not granted, the appeal can take months.
Meanwhile, the driver's suspension for a standard first time, no injury, DUI can be as low as one month with a five month restricted driver's license (restricted- can only drive to school, work, or other necessary events). After the one month hard suspension, most clients are not interested in paying more money for a court review. Either it is a very good case, DUI while on DUI probation (one year suspension), or there is little practicality in challenging the DMV's decision. Long story short, there is little court review of DMV decisions.
So, you have a class of people that are generally vilified, an administrative structure built on suspending licenses, and little oversight for bad decisions. Also, DMV hearing officers are not lawyers, and need not have a bachelor's degree to qualify. Not that lawyers are a separate class, but we are licensed by the state and are sworn to uphold both the body and spirit of the law. We are sworn to do our best to do the right thing, whereas DMV hearing officers are not. They are also paid well, but not great. *A review of a DMV driver safety officer job announcement has their maximum pay at around $60,000.
It creates a perfect environment for abuse. The pressures and stresses on lawyers can also be significant, and will be discussed in the next blog entry. These are lawyers that San Diego US Attorney Laura Duffy called, “co-conspirators."
