Landmark California Appellate Ruling Changes the Landscape of the DMV APS Hearing Process

May 17th, 2022 | by Scott C. Thomas, Orange County Criminal Law Attorney

In a recent California appellate case, the DMV’s Administrative Per Se (APS) hearing procedure was affirmed as violative of drivers’ due process rights.  The DMV conducts APS hearings, if requested within 10 days of the date of arrest for DUI, to determine whether the suspension of a driver’s license is warranted. At these DMV APS Hearing Process, the DMV requires that the hearing officers act as both advocates for the DMV and as triers of fact. It is aking to having a prosecutor act as a judge in the same case he or she is prosecuting. Sounds fair, right?

Going even further, the DMV also allows for DMV managers to change the decisions of their hearing officers, or order the hearing officers to change their decisions through an ex parte communication, without notice to the driver.

DMV APS Hearing Process

A bit of background information: The DMV APS Hearing process is administrative in nature, so drivers are not afforded the same constitutional rights and safeguards defendants enjoy in a criminal court.  For example, the standard of proof is a preponderance of evidence, which is the lowest standard of proof and only requires a minimal showing to sustain a suspension, whereas, in a criminal court, a prosecutor must prove a defendant’s guilt beyond a reasonable doubt, which is the highest standard of proof and requires a prosecutor shows that the only reasonable explanation is one that necessitates a finding of the defendant’s guilt.

Further, the more “relaxed” nature of administrative hearings, relative to their criminal counterparts, allows for things that would never pass in a criminal court…say, for example, a prosecutor acting as a judge in the same case.

Drivers’ Rights to Due Process

Now that the basics are out of the way, we can look at a recent Second District Court of Appeal case, the Plaintiffs, The California DUI Lawyers Association (CDLA) sued the DMV and its director for injunctive and declaratory relief.  The CDLA alleged the DMV APS hearing process, namely the use of a DMV employee to act as both judge and prosecutor, as well as ex parte communications between Hearing Officers and DMV managers violate drivers’ right to Due Process and the Court agreed.

At the moment, it appears that the DMV will now enact a new system whereby one Hearing Officer acts as an advocate for the DMV, while another acts as a “neutral trier of fact.”  However, what will prevent “advocates” from having ex-parte communications with “neutral triers of fact” as they are both DMV employees and often work in the same office? How is an employee of the DMV a “neutral trier of fact” in a hearing where the DMV, his or her employer, is a party to the action?

What’s Next?

It is safe to assume more appellate cases will be working their way through the courts to address these issues, but this ruling is a major victory for not just drivers, but more importantly the public at large, as it provides a much-needed check on government overreach that is violative of citizens’ due process rights.

This case is an excellent example of the checks-and-balances system of our government in action and functioning properly.  Only time will tell what happens next.

Scott C. Thomas

Law Office of Scott C. Thomas
(949) 945-2085


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