DMV Writs of Mandate
How important is your driver’s license? Some people don’t drive, take rapid transportation and need a license only for ID (a Cal. ID card then does the trick). But, for most of us here in Southern California, a license means much more. It represents the ability to earn a living (or being able to search for employment), to be mobile, to exercise our freedoms and to be connected to our culture. In short, it’s huge and, when it’s taken away, we either have to adjust and live with the hardship or become “outlaws,” an option that’s never the best and usually the worst.
In a recent DUI/DMV case, a client was charged with DUI following an accident where the PAS test recorded .10. At the station, the client was obligated under the implied consent law to submit to either a breath or blood test. The client chose breath. The client attempted to comply with the breath test protocol but the Datamaster breath testing device malfunctioned.
The officer then discussed the blood test option and the client told the officer that she would faint if a blood draw were attempted. The officer then offered urine, feeling that the blood option was too extreme and took that option off the table. When the client was unable to provide a urine sample the case was treated as a “refusal” for court and DMV purposes (court result: plea bargain to a non-priorable “dry” reckless driving).
At the local DMV hearing, the DMV hearing officer found that the client did in fact refuse and/or fail to complete the required chemical testing and suspended the client’s license for one year (without restriction), causing a major hardship. I advised client that the DMV hearing decision was plain wrong and that she should take the next step and file what’s known as a “writ of mandate” to the Superior Court challenging the DMV decision.
We filed the writ and obtained an immediate stay of the suspension order, permitting the client to continue to drive despite the DMV order. Legal briefs were filed on each side (DMV represented by the Cal. Attorney General’s office) and eventually the Los Angeles County Superior Court judge granted the writ and ordered return of client’s license. The Court found that the officer could and should have transported client to a nearby police station so that client could have completed the test of her choice (I submitted a Map Quest map showing that the nearest police station was closer than the nearest hospital).
In another recent case, the Los Angeles County Superior Court judge granted my client's writ of mandate (another refusal case) reversing the DMVs one year suspension. The issue in that case was an impatient police officer (many are). My expert at the DMV hearing testified that the officer unfairly stopped the breath test prematurely and so did not afford my client an opportunity to complete her chosen test. The usage log for the breath tester was a key part of the evidence. The client's later refusal to have blood withdrawn (needle phobia) was deemed not a refusal based on the officer's abuse of discretion. The Superior Court judge endorsed our expert's opinion and granted the writ of mandate. The DMV may appeal--stay tuned--but for now my client can continue her career---an adverse ruling would have ended it.
In another case, the DMV hearing officer found my client refused because the DataMaster failed to print out the breath test results. The usage log for the machine disclosed that client did provide breath samples that were analyzed (but just not printed out). The Los Angeles Superior Court judge found that the refusal finding was unjustified, granted the writ and cancelled the one-year suspension.
Not all adverse DMV decisions are “winners,” but many are. Note also that writs are time sensitive; a writ must be filed within a specified time from the issue date of the DMV order. Act timely since those who sleep on their rights often lose them.