Lawyers Can Sue DMV to Challenge Fairness of Administrative Per Se Hearings

A lawyers association has standing to sue the Department of Motor Vehicles (DMV) for alleged waste of government funds in conducting unfair administrative hearings. The California Dui Lawyers Association (CDLA) brought a taxpayer action claiming the DMV wasted funds by violating the due process of drivers in DMV’s administrative per se hearings. DMV administrative per se hearings determine whether automatic suspension of drivers’ licenses are warranted after drivers are arrested for driving under the influence.

The DMV Administrative Per Se or APS System

The DMV’s “administrative per se” or “APS” system is used to suspend a driver’s license following an arrest for driving under the influence. Under the administrative per se law, DMV must immediately suspend the driver’s license of a person who is driving with .08 percent or more, by weight, of alcohol in his or her blood. An administrative per se hearing does not impose criminal penalties “but simply suspends a person’s driver’s license as an administrative matter upon a showing the person was arrested for driving with a certain blood-alcohol concentration ….”

An arresting officer or the DMV serves the driver arrested for having an excessive blood-alcohol level (BAC) with a ‘notice of [an] order of suspension or revocation’ of his or her driver’s license, advising that the suspension will become effective 30 days from the date of service.

The notice explains the driver’s right to an administrative hearing before the effective date of the suspension if the driver requests a hearing within 10 days of receipt of the notice. At the APS hearing, “[t]he sole task of the hearing officer is to determine whether the arresting officer had reasonable cause to believe the person was driving, the driver was arrested, and the person was driving with a BAC of 0.08 percent or higher. If the hearing officer determines that the evidence establishes these three facts by a preponderance of the evidence, the license will be suspended.

DUI Lawyer’s Complaint about Lack of Fairness in DMV APS Hearings

The CDLA complaint alleged that the APS hearing system is unfair and unconstitutional.

DMV Hearing Officers have a conflict of interest and violate the Due Process Rights of Drivers

The lawyers alleged that continued possession of a driver’s license is a vital property right that cannot be suspended without due process of law. According to the complaint, “[T]he APS system … requires the Hearing Officers to act both as advocate for the DMV and arbiter/decision maker, creating an obvious and inherent conflict of interest and bias favoring one party over the other.” CDLA alleged that as a result, the “APS hearings violate the State and Federal Due Process rights … of license holders by failing to provide a fair, neutral and impartial Hearing Officer.” In addition, “the APS system unconstitutionally allows DMV managers, executives, and/or administrators ex parte communications with the Hearing Officers and direct control over the decision-making process.” CDLA asserted that “[t]hese procedures and practices are unconstitutional on their face and as applied.”

CDLA claimed that the hearing officer at each APS hearing acts as investigator, advocate for DMV, and fact finder. CDLA’s complaint noted that California’s Administrative Procedure Act (APA) (Gov. Code, § 11340 et seq.) states that a person may not serve as a presiding officer in an adjudicative proceeding where “[t]he person has served as investigator, prosecutor, or advocate in the proceeding or its preadjudicative stage,” or “[t]he person is subject to the authority, direction, or discretion of a person who has served as investigator, prosecutor, or advocate in the proceeding or its preadjudicative stage.” (Gov. Code, § 11425.30, subd. (a)(1) & (2).) However, the Vehicle Code “specifically exempts the APS adjudicative hearings from the prophylactic separation of functions mechanism set forth in the APA.”

CDLA also alleged that hearing officers’ “initial … decision to set aside a suspension is subject to ex parte review, criticism, and unilateral reversal” by DMV management, “prior to it being issued to the licensee, without notice or input from the licensee.”

CDLA asserted three causes of action:
• violation of 42 U.S.C. § 1983 (section 1983) affecting due process rights under the Fourteenth Amendment to the United States Constitution;
• violation of due process rights under California Constitution Article I, Section 7, and
• “illegal expenditure of funds.”

If the APS System Violates Drivers’ Due Process Rights, it is illegal and a waste of government resources.

The Court of Appeal stated that if the APS system violates drivers’ due process rights, as CDLA alleges, it is illegal and a waste. Due process guarantees apply to the APS system with respect to drivers’ license suspensions.

The court did not reach the merits of the arguments made by the lawyers or the DMV but decided that the lawyers had standing to bring these claims.

See: California Dui Lawyers Association v. California Department of Motor Vehicles, 20 Cal.App.5th 1247, 229 Cal.Rptr.3d 787 (Cal.App. 2 Dist., 2018)

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