The California DMV Re-Examination Process – Winning Your Hearing

What is the Re-Examination Process at the DMV?

Whenever a California resident seeks to be awarded the California Driver License they must pass a rigorous application process which is designed to establish five criteria:

• The process must establish the true identity of the applicant;
• The process must establish the applicant is a true resident of the State of California;
• The process must establish the applicant possesses the knowledge to drive a vehicle;
• The process must establish the applicant possesses the skill to drive a vehicle.
• The process must establish the applicant possesses the physical/mental fitness to drive.

The initial application process for the issuance of the California Driver License is known as the Examination process. Those applicants who establish all five of those criteria may be issued the coveted California Driver License.

Throughout that person’s entire driving life, however, the California Department of Motor Vehicles (DMV) remains in the role of “Big Brother.” Acting as Big Brother, the DMV will stand in the shadows and continuously monitor a person’s driving history, criminal history; as well their physical and mental history to ensure they remain capable of safely driving a motor vehicle. If at any point, the DMV receives information which suggests a person has become a negligent or inattentive driver; or that the person’s physical or mental health has changed or deteriorated, the DMV can draw that person back into a re-evaluation process to determine if the driving privilege should be withdrawn.

The DMV uses two different processes to establish the driving fitness of a driver:

• DMV Re-Examination of Driver: The DMV’s re-examination process is essentially an investigation conducts to determine if the case should be closed or if more action is warranted.  During the re-examination process, the driver is permitted to continue driving.

California Law does not permit a driver to be represented at a re-examination.  The Legislature concluded that because the license is still intact, the driver is not permitted to be represented.  That being said, there is no reason a seasoned Administrative Advocate cannot prepare you to defend yourself.  Preparation is the secret to success and we can help with that.

In the re-examination process, the assigned Hearing Officer may order the driver to present medical evidence in a form known as a “Driver Medical Evaluation” (Form DS326).  The hearing officer may also require the driver to present evidence of an eye examination in a form known as a “Report of Vision Examination”, (Form DL62).

The Hearing Officer may ask for any other evidence he or she deems relevant.

The Hearing Officer will review all of the evidence presented and then will question the driver extensively in what is known as a “Re-Examination Interview.”  (See below).

At the end of the re-examination process, the hearing officer will either close the case and deem no further action needed; or the hearing officer may suspend the driving privilege.

• DMV Administrative Hearing: If the re-examination does not go well, the hearing officer may order the suspension of the driving privilege and immediately remove the driver from the road.  If this were to happened, all is not lost.  You simply step up to the next level of fighting………….. The DMV Administrative Hearing.

A DMV Administrative Hearing is complicated and must be well prepared.  These hearings are run like mini-trials and you ARE permitted to be represented by an Administrative Advocate.  The most critical difference is that if you are being “re-examined” your driver license is still valid and you can drive.  If you are at the Administrative Hearing, your driving privilege has been suspended and you may not drive until the issue is resolved.

What causes the DMV to initiate a Re-Examination:

What causes the DMV to initiate a Re-Examination

The DMV will initiate the Re-Examination process of a driver if it receives information from any source that a person may no longer be safe to drive. The DMV classically will receive worrisome information from:

• Law Enforcement Officers
• Judges
• Medical professionals
• Friends, neighbors or family members
• Media
• A person’s driving record
• The individual driver
• Sources who wish to remain anonymous

If the DMV receives information from any source that you may not be safe to drive, you can expect to be Re-Examined at a minimum.  If the information is received from a Physician or Law Enforcement Officer the DMV will often bypass the Re-Examination process and move to immediate suspension.

Who Makes the Final Decision at a DMV Re-Examination:  The California Department of Motor Vehicles is comprised of several divisions.  Within the Licensing/Operations Division is the Office of Driver Safety (DSO).  The Regional DSOs are scattered throughout the state and cover specific geographic areas.   The DSO is the DMV version of a courthouse where all forms of Re-Examinations and Administrative Hearings are conducted.

The person who sits in judgement of you at a DMV Re-Examination is known as a Driver Safety Hearing Officer.  This person is the DMV equivalent of a Superior Court Judge.  Administrative Law is completely different from what happens in a criminal court.  At the DMV, the rules of evidence are relaxed and certain types of information that would never see the light of day in a courtroom are admissible at the DMV.  The Driver Safety Hearing Officer is not a judge but they are quite powerful when it comes to one’s privilege to drive.

DMV Hearing Officers are not judges. They are not lawyers and many are not college graduates.   They simply are a DMV Employee with a very powerful position within the state.

How Does the Re-Examination Process Work?

The Re-Examination Interview:

We have always believed that the “interview” stage of the Re-Examination process should be called the “Investigation” because that is precisely what is occurring. To be blunt, the “interview” stage allows the DMV to conduct an investigation of any driver to determine if there is cause to suspend the driver license. This allows the DMV to stick their nose into your life and to make what is really an arbitrary assessment of one’s ability to drive. At this stage, the DMV holds all the control. As stated earlier, the involved driver IS NOT entitled to legal representation at the Re-Examination Interview because the DMV has not yet made a determination to suspend the driver license. The California Vehicle Code mandates that all drivers cooperate and participate in the DMV’s “interview” or risk the suspension/revocation of their driver license so; your license may be suspended for simply refusing to cooperate with the Department’s investigation.

The bottom line is that if you have been summoned into a DMV Re-Examination Interview, you must participate and you are not entitled to representation. That being said, the “interview” stage of the Re-Examination process is the most informal and relaxed of all DMV proceedings but, it is also an opportunity for an unscrupulous hearing officer to misbehave and be abusive.

Special Note: Although the DMV has the power to prohibit anyone else from being present during the “interview,” many DMV Hearing Officers will allow a representative to be present in the interview for the sole purpose of being a witness; but they cannot participate. The mere presence of a well trained “witness” is that Hearing Officers will often behave themselves as they know they can be held accountable.

Many drivers are frustrated by the Re-Examination “interview” because they are completely unprepared  to be interviewed by a DMV hearing officer who may be short-tempered, rude and condescending. The DMV hearing officers are trained to be suspicious and to expect drivers to be evasive when answering questions. Many hearing officers see the “interview” as an opportunity to agitate a person to determine how well they manage stress. Thus, many drivers will walk away from an “interview” feeling beaten up and disillusioned.

The true focus of the interview, however, is for the DMV hearing officer to make a judgement as to whether or not there is good cause for removing the driver from the road.

When the Re-Examination Interview concludes, the hearing officer rarely announces their decision immediately. In most cases, the hearing officer will advise the driver that he/she is taking the matter under consideration and that a written decision will be arriving in the mail shortly. With the Re-Examination Interview concluded, the hearing officer may;

• May require vision, written and behind the wheel testig;

• Terminate any further action against the driver and allow them to continue driving;

• Suspend or Revoke the driver license; which then permits the driver to enter Stage-Two of Process, known as the Administrative Hearing.

Special Note:  If the original information received is egregious enough to suggest that a person’s driving is an immediate hazard to the public, the DMV has the power to by-pass the re-examination stage altogether and go right to suspension. This happens most often when the DMV receives notification from a medical professional that a physical or mental condition exists that may affect a person’s ability to drive.

The Administrative Hearing:

The Administrative “Hearing” occurs when the DMV has suspended a person’s driving privilege because the department believes the driver no longer possesses the knowledge, skill or fitness to safely operate a motor vehicle. The Administrative Hearing is a full-blown legal proceeding where exhibits are introduced, evidence is considered, witnesses may testify and legal arguments are filed. This is a true evidentiary hearing that is run much like a mini-trial.

If you find yourself entering the Administrative Hearing stage, do not despair. Many of these hearings can be won and a person may be returned to driving. Most importantly, at the Administrative Hearing, you are entitled to be represented by an expert in DMV Defense; you no longer have to face the DMV alone.

Make no mistake, the DMV process can be exhausting, frustrating and lengthy. Depending upon the issues causing the driver license suspension, a properly presented Re-Examination and Administrative Hearing can take from one-month to one-year to reach conclusion.   The average life of a Re-Examination is about 90 days.

If you are headed toward a Re-Examination Interview, you should take the steps to engage a DMV Defense Expert from California Drivers Advocates (CDA) to begin preparing for your interview. The best way to ensure that you retain full driving privileges is to overwhelm the DMV with so much positive information and evidence which addresses every conceivable concern they may have. Medical evidence, physical evidence, witness statements, case evaluation and preparation for testimony are all key elements to properly planning for a Re-Examination. The Re-Examination is the best opportunity for you and your representative to prove that you are capable of safely driving and to keep the DMV from suspending your license.

Remember, as part of the Re-Examination, the assigned hearing officer has the power to:

• Require the driver to take a written test even if they had previously tested;
• Require the driver to take a vision test;
• Present the department’s own exhibits and/or evidence in support of the license suspension;
• Require the driver to take a “behind the wheel” driving test.

When the Re-Examination concludes, the DMV hearing officer possesses broad power in effecting the driver’s privilege to drive. In concluding the Re-Examination Hearing, the DMV hearing officer may:

• Set Aside any further action and reinstate the driving privilege without restriction.
• Terminate the suspension action and place the driver on medical probation.
• Terminate the suspension action and place the driver on a “restricted” privilege prohibiting certain driving (i.e. no driving at night or on freeways).
• Sustain the Suspension/Revocation of the Driver License.

How Can I Win a DMV Re-Examination?

The California Department of Motor Vehicles (DMV) is the government entity empowered with the authority to grant a driving privilege and to take it away. The DMV’s published position is that they will assist drivers in keeping or regaining their driving privilege whenever possible. The reality, however, is the DMV is not set up to be “user friendly” and does very little to assist drivers in navigating the Re-Examination Process.

If you find yourself drawn into the DMV’s Re-Examination Process, call the DMV Defense Experts at California Drivers Advocates. If you are set for a Re-Examination Interview, we will give you advice on preparing to face the DMV. If you are set for an Administrative Hearing, we can be engaged to assist you and represent you every step of the way.

Don’t face the DMV alone. Call CDA today.