March 8, 2015

FBI Announces San Diego DMV Hearing Officer Pleads Guilty to Bribery in Federal Court, part 3- How to Win DMV APS Hearings Fair and Square

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This is the third blog post on the former DMV Driver Safety Officer that plead guilty to bribery charges on February 3, 2015.  Ms. Benavidez resigned from her position in December of 2014 after the FBI raided her home and office.  Ms. Benavidez, as part of her guilty plea, admitted to inappropriately issuing temporary driver's licenses, granting suspension set asides when not warranted, and disposing of DUI driver files before they could be entered into the DMV computer system.

Please note that I learned a competitor was copying and pasting this original post.  I spent years litigating and studying administrative law (that governs DMV hearings), as well as traveling all over California to hear other attorneys lecture on this topic.  I maintain close relationships with attorneys in California to discuss developments in DMV APS hearings, and also discuss winning strategies.

The first part of the blog series touched the effect of the license suspension on DUI defendants and the FBI press release.  The second on the environment in which the DMV driver license suspensions occur- they are in a small room with just the hearing officer, a recording system, the driver's attorney and their witnesses.  This is a very close environment to cross examine a law enforcement officer- they can not run away.

In this blog post, I will discuss how to win at the DMV APS hearing.  It is not easy for all the reasons listed in the previous post- the standard is low (preponderance of the evidence), the judge is also the prosecutor, there are institutional pressures for DMV driver safety officers to suspend driver's licenses, and the appeal process is lengthy and expensive.

The first key to winning DMV hearings is to know the law.  The DMV hearing officer has the same roles as both a judge and prosecutor.  However, DMV hearing officers are not held to uphold the law- there is no DMV hearing officer equivalent to the State of California Commission on Judicial Performance.

Second, is to cite the appropriate law.  This may be intuitive, but it isn't.  Many times the difference between winning and losing is showing that you can win.  In legal environments, that means proper citations, or showing that the law can be utilized and accessed as a tool.  This is opposed to having a general idea of what the law is. An attorney showing they can win in the later stages (DMV Departmental Review, Civil Writ) the DMV is less likely to press to the later stages.

Third, object, Object, OBJECT.  Since the DMV hearing is recorded, and the only basis for a Departmental Review or civil litigation review is the audio, it is very important to preserve the record by objecting and citing the objection.  Only a skilled an experienced litigator knows when to object, and when to let procedural objections pass.  Ask your attorney about their litigation experience and success.

I must move to another blog entry to cover the remaining strategies.  The DMV hearing process is one of the most complex and difficult aspects of specializing in DUI law.  But it is the difficulty that makes it so enticing, and the victories so rewarding.  Similarly, anyone who cheats or violates the system is an affront to the system as a whole- no matter what their role.  Due to the severity of this violation, it will also be briefly discussed in the next post.?


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The acronyms DUI, DWI, OMVI and OVI all refer to the same thing: operating a vehicle under the influence of alcohol or drugs. The most commonly used terms are DUI, an acronym for Driving Under the Influence, and DWI, an acronym for Driving While Impaired.
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