Secret Memo: DMV License Suspension Hearings Rigged

Posted by Lawrence Taylor on October 28th, 2008

Imagine the Presiding Judge of a courthouse telling the other judges, "There have been too many acquittals lately.  I’ve reviewed them and disagree with most of your ’not guilty’ verdicts.  All future acquittals will be submitted to me for review, and if I disagree with them you will be counselled and your fitness to continue serving as a judge will be reviewed."….

When a citizen is booked on suspicion of drunk driving, his driver’s license is immediately suspended by the police if he (1) takes a breath test indicating .08% blood-alcohol or higher, (2) takes a blood test (even though results are unknown until later lab analysis), or (3) he refuses to be tested.  In essence, the cop is the judge, jury and executioner.

But what happened to due process, to fundamental fairness?  Well, the citizen has a right to appeal the suspension by demanding an administrative hearing where he can challenge the DMV’s evidence,  present his own evidence and argue his case.

In California, as in most states, this is done at a hearing conducted by the Department of Motor Vehicles.  As I’ve pointed out in previous posts, however, this "hearing" is anything but a fair and impartial one.   See Due Process and Automatic License Suspensions.  

1. The government agency that is trying to sustain the suspension — the DMV — is the same one conducting the hearing.

2. Hearsay police documents – which cannot be cross-examined – are admissible and commonly make up the Department’s entire case.

3.  If the citizen wants to cross-examine the officer, he has to subpoena him at his own cost (service of the subpoena and the officer’s overtime salary) for the privilege.

4.  The prosecutor is not a real prosecutor, nor even an attorney.  Nor, in most cases, even a college graduate.  He is an employee of the DMV.

5.  The judge is also not a real judge — not even, as in other states, an ALJ (administrative law judge).  In fact, this "judge" is also not an attorney.  Nor a college graduate.  This "judge" is, like the prosecutor, an employee of the DMV with a high school degree.

6.  The "prosecutor" and the "judge" are, in fact, the same person.  That’s right, this supposedly impartial hearing officer is both prosecutor and judge.  He can object to the citizen’s evidence — and then rule on his own objection.  He presents his case — and then decides if he wins or loses.

Amazingly, however, a few of these DMV hearing officers try to do the right thing.  So what happens if some hearing officer starts developing a conscience and makes a few decisions in favor of the citizen? 

The following is an internal memorandum provided to me by a very reliable source which the manager of the California DMV’s San Diego hearing office circulated to his hearing officers yesterday.  (Note: a "set aside" is the term used when a license suspension has been reversed by the hearing officer.) 

From:  [Manager, San Diego Driver Safety Office] 

To:  [names of 14 hearing officers]

Sent: Monday, October 27, 2008  2:12pm

Subject: Set Asides

This is a reminder to place your set asides in the SET ASIDE basket in the file room.  I run a weekly report to confirm that the set asides are being placed in the basket.  Some of you have not been putting the set asides in the bin.

To date, I have reviewed 17 set asides.  The results are as follows:

     – 6 good decisions
     – 4 are questionable — needing review of the [tape] recording to make determination
     – 7 are unwarranted set asides

These results are terrible, in that we have  no rookie hearing officers.  Should you be responsible for any of the 7 unwarranted set asides, your manager will be discussing the case(s) with you, if they haven’t already.

I  will be publishing my findings on each of your cases — good and bad ones — minus the hearing officer name and case info.  Should you wish to discuss any of these cases with me, feel free to do so.

In reading this "smoking gun" memo, ask yourself the following questions:

1.  Why are are the decisions — verdicts — of these administrative judges subject to further review by the DMV’s office manager?  To identify and weed out hearing officers who are not sustaining enough DMV suspensions?

2.  Why is the office manager substituting his own judgment for that of the hearing officer who heard the evidence?

3.  Why are the hearing officers ordered to submit their set aside decisions for review — but not their decisions sustaining the suspension?

4.  Why do supposedly independent judges have "managers"?

5.  How can 11 of 17 decisions in favor of the citizen – a tiny percentage of all cases handled by the San Diego office — be determined "questionable" or "unwarranted"?

6.  Why are the results "terrible, in that we have no rookie hearing officers"?  Because "rookies" don’t yet have the big picture and are actually decidng cases on their merits?

7.  What do you think the clear message of this memo is to all hearing officers who want to keep their high-paying jobs?

This is the supposedly "fair" hearing by an "independent" hearing officer that is given to citizens who have had their licenses taken by police.  And as any DUI attorney will tell you, this same approach is found in   hearing offices statewide.

Welcome to "due process" at the DMV.


  • RichardAlan

    Thank you Mr. Taylor… Oh yes I have Imagined, I had a perfect driving record, safety Awards from United Parcel Service from over 10 years ago. No accidents, no points a commercial class A CDL with “P” endorsement.

    Perfect, a Transportation employers dream. I drive and handle multi million dollar Mobile Television production equipment (I have not worked since 4-3-08)

    Absent a court conviction and a month prior to my court trial the DMV during my hearing suspended my license based on the observation and report of a “malfeasant’ police officer.

    Of course you’ve already heard my story.

    But my life is ruined absent a conviction (?)

    Why am I not able to provide more my family, No employer will hire me because I don’t have a Valid License” and this is for non driving jobs.

    My DMV will report for the next 10 years that I refused a drug/Alcohol test and my license was suspended from this date to that date.

    So how does my court case help me being that I had no conviction? When the DMV is saying the exact opposite of the courts findings?

    In other words the DMV is reporting a dirty DMV report involving these imaginary make believe Drugs and Alcohol allegations that don’t really exist, it’s a bunch of “Legal Fiction”

    So how do I survive, please help with any wisdom I may be missing.

    Thank you


  • standup

    The DMV hearings remind me of a Hogan’s Heroes episode. Gen. Burkhalter says to Klink, “You will be given a fair trial and afterwards you’ll be taken outside and shot”

  • joe

    Part of the travesty is the lack of oversight. The cities/counties treat the citizens like atm machines, and it’s easy to gather fines from them when no one can challenge their authority. So, a citizen who may or may not be legal drunk has to pay outrageous fines and taxes to pay for the judge’s new robe, the court room electricity and so on.

  • koivisto

    More $ is the message here, along with an eye towards the next election. The judge should be terminated, but it won’t happen. What this country was founded is lost and I’m afraid it’s not coming back.

  • David W

    Just like my hearing. Fair and impartial. Cop doesn’t have a copy of the video, but will honestly tell the truth. The hearing officer says its ok, he will review it later.

    Got to love how these “new rules”, not law or procedure, seem to find there way into the ultimate goal.

    If accused,,YOUR GUILTY!

  • RichardAlan

    it’s the “color of law” not the rule of law, it’s “Legal Fiction” based on statutes, by laws, and fantasy make believe fiction designed to separate us the “sovereign private citizen” by “Malfeasant public servants” (revenue collectors) from our money , our freedom and our rights…. they themselves should all be charged with breaking “their” fantasy color of laws and for fraud… one day it will happen, perhaps a class action lawsuit on behalf of the
    American citizens who’ve been denied “Due Process” regarding this bogus DMV routine –that’s all I’ve got..

  • prosepa

    The two most important things that I learned from my refusal to take a blood test in July of this year are:

    1.) If you wish to fight the system and the process in place, expect to do it alone.
    2.) When put in a situation where it’s either figure out how to do it yourself or give up, you will figure out how to do it.

    I appealed the initial DMV suspension for the refusal, filing my own paperwork and representing myself at the trial. The hearing was held at the County Court house where PENNDOT was represented by their attorney and the judge was a trial judge for Lancaster County. At the end of the trial I raised the issue of the Implied Consent law of PA violating my rights under the state constitution….after which the judge quickly ruled in PENNDOT’s favor. I tried making phone calls to local attorney’s regarding an appeal, and none of them wanted to touch the issue. So, I spent my lunch breaks at the courthouse law library and figured out how to file my own appeal. Just last week I filed my official Notice of Appeal with the Prothonotary’s office and served copies upon all the parties. Odds are that I will lose the appeal and my license suspension for be re-instated. At that time I will pay the filing fees and file an appeal to the State Supreme Court. I have not paid a single dime so far in attorney fees as I have been pro se in the entire matter. If the DMV wants to try and take my license on the basis of an unconstitutional statute then I am going to make them work for it by filing out paperwork. More importantly, I am going to help anyone I know file their own paperwork when in the same situation, without charging a single dime.

    If everyone familiarized themselves with the legal process and took the time to do their own research then we would not all be dependant on lawyer’s to challenge laws we feel are unjust. I enjoy reading Attorney Taylor’s blog, and his writings have made me think a lot more in depth then I had before about DUI and Constitutional law. But, how many pro bono DUI cases do you take on each year? How many license suspension cases do you continue to appeal the decision of, constantly challenging the system for a cause greater then any one person?

    I have pending applications to various law schools in the Southern California area. Once I earn that degree I am going to do everything in my power to make sure that I serve as a thorn in the side of the government. I have no aspirations to be wealthy, only to learn as much as I can so I can help others who would normally be brushed aside, and maybe if I’m lucky, help in changing the status quo.

  • Bob

    Once you get the bill for law school,
    you will certainly want to be paid.

  • pat

    At this point I wonder what the point of having a lawyer is. At a recent DMV phone hearing, my lawyers basically said that there was evidence missing concerning the validity of a blood kit. The hearing officer's response was based on the evidence we are going to assume the office was in compliance. in addition my lawyer did not argue any other explanations regarding my case for example, " My client did not pull off the side of the road because it was unsafe considering the 45 degree angle ditch that was there…" At this point wishing I represented myself.
    How about the fact the the officer pulled me over for a bogus charge. "Weaving" I never crossed any lines. I was driving on mountain roads and might have gone from the left to right side of the lane 1- 2 times at best, once being as another driver was coming down the other side of a 2 lane highway. How can DMV be able to convict me when the law still has and may not? It is not logical or just.

  • Ann

    First, the law didn't exist until 1993. So, if they say you agreed to it when you signed for your license before then, it's bogus. We did this with Vehicle Inspection Stickers..same fraud. It's a violation of the federal supremacy clause and the statute of frauds…It's the attorney's job to throw your case. Mine told me straight up, the law was invalid and threw my hearing after he was dismissed twice. My tire blew and I slid into a ditch. No sobriety test…BUT, they must read Miranda before giving the sobriety test asnd it must be standardized.
    All government employess including the DMV, judge, cop, attorney have to have bonds…Sue the bonding company and call the F.B. I. and report them for fraud. It's hot on their list.