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

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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FBI Announces DMV Hearing Officer Pleads Guilty to Bribery in Federal Court

California Department of Motor Vehicles- Driving Change

On 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."

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FBI Announces San Diego DMV Hearing Officer Pleads Guilty to Bribery in Federal Court, Part 2

Last week I wrote a blog post about the former San Diego Safety Officer (DSO, Hearing Officer) pleading guilty to bribery charges in federal court. Also, there was a brief discussion of the environment in which the DMV APS hearing takes place. APS stands for Administrative Per Se- which refers to the .08% BAC DUI license suspension. Because hearing officers are not lawyers, they are not regulated by the state. The appellate review process is extensive and expensive, so there is not a large body of law to guide hearing officers towards the right decision. By default, the right decision is to suspend the driver's license.

From the point of view of the lawyer, it can be very frustrating. In this blog post, some of those frustrations will be discussed.

In a DMV driver license hearing, all the hearing officer needs to prove is that three elements were met: that the driver was “driving” (put behind the wheel); that the driver was found to be greater than .08%; and that there was probable cause to stop the driver. The standard, because it is an administrative hearing, is a mere preponderance of the evidence- which is sometimes equated to 50%.

In a typical new client consultation for a DUI, the license can be their biggest concern. Particularly if a person is a salesperson, executive, single parent, or a number of other unique circumstances. I had one client that was a process server. And everyone, across the entire socio-economic spectrum, gets DUIs. When I tell a client their case can be dismissed and they still get their license taken away, they are crushed. And this can lead to temptation.

DUI hearings are very difficult for the reasons stated above and in the last post. From a lawyering perspective, we are taught the difference between what we know, and what we think. Even if what we “think” is the most likely scenario, it is essentially useless because it is not certain. Certain is what we know. The DMV has little incentive to follow the cold, hard evidentiary rules, as well as common sense differences between know and think, when, from their perspective, they are pulling the license of a drunk driver. In other words, who cares, or why should they care?

So a lawyer defending a driver in a DMV APS hearing can be right, and still lose. A better explanation may be that if the driver's case was a law school exam, he would win- the precise execution of evidentiary rules, and excluding all assumptions, there is no case. But in the real world, in the real DMV world, a driver's license can be suspended with a dare- if you think we're wrong, appeal it.

It falls on the lawyer to tell the bad news to the prospective driver- to be the voice of the system. It may be unfair, but there is societal pressure that supports the system- fair or not. For instance, the Union Tribune articles don't state, “single mother paid DMV employee to keep her license to keep her job and stay off welfare,” or “license suspension avoided so father can keep joint custody of his son.” But these are real world scenarios we see all the time.  Instead, the San Diego Union Tribune perceives the story as a conspiracy to keep DUI drivers on the road.

Which is the lead in to the last and final blog post in this series- how a successful San Diego DUI attorney handles- and wins- DMV APS hearings honestly and ethically.

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