The goal of the physical or mental re-examination is for the DMV hearing officer to review all of the available evidence, hear from the individual driver and to accept testimony from expert witnesses and others who may have valuable information. Although the physical or mental re-examination hearing is much more relaxed than an APS hearing following a DUI arrest, this process still operates under California Administrative Law along with other applicable State Codes and therefore is not easily navigated by the average citizen, regardless of their level of education.
Understand that the entire re-examination process may very well include more than just a face to face hearing with a hearing officer. The re-examination process frequently will required the driver to take a written test and a behind the wheel test. Vision tests are also common elements of the re-examination process.
Also, unlike the APS hearing mentioned above, the physical or mental re-examination requires the personal participation of the driver (either in-person or by telephone). The failure of the driver to participate in the proceedings will result in a suspension of the driver’s license. The license will then remain in suspension or revocation until such time as the driver schedules a new hearing and participates as required.
The safest thing for the DMV hearing officer to do is to suspend the driver’s privilege. By taking this action, the chance of the driver killing or injuring another person as a result of his or her physical or mental condition is decreased. Based on this, it is imperative that the physical or mental re-examination hearing be well prepared and the driver be educated on how best to present himself at the hearing.
The DMV hearing officer will seek to establish whether or not an actual physical or mental condition exists and, if so, to what extent it affects the driver’s ability to safely operate a motor vehicle. The simple presence of a physical or mental disorder/condition is not sufficient to sustain a license suspension. The DMV hearing officer is required to establish the “Nexus” between the physical or mental condition and the person’s inability to safely operate a motor vehicle. In making this determination, the hearing officer will consider:
1.) The person’s driving record and the circumstances of traffic accidents, if any.
2.) Characteristics of the person’s driving requirements:
- The normal distances driven by the person.
- Amount of traffic the driver normally encounters.
- Area of residence (urban or rural).
- The amount of time spent driving.
- The time of day the driver is normally on the road.
- Availability and access to food, sleep and medication.
Although the physical or mental re-examination hearing may be conducted in-person or by telephone, it is almost always best to conduct the hearing in-person. This allows the driver and his representative to put a “human face” on the situation. It is critical that the hearing officer recognize the sincerity, drive and cooperative nature of the driver. It is critical that the hearing officer see that the driver is in control of himself and therefore able to drive.
During the physical or mental re-examination hearing, it is likely that the hearing officer will question the driver extensively. This is permitted by California law but the scope of the questioning should be controlled by the driver’s representative. The hearing officer is trained to evaluate the driver on several different levels. The hearing officer will seek information in the following areas:
1.) Physical requirements
Does the driver possess the strength, coordination, stamina and mobility to operate a vehicle?
2.) Sensory Function
Does the driver possess the visual, auditory and tactile functions necessary to operate a vehicle?
3.) Mental Requirements
Does the driver have the ability to integrate and interpret sensory input? Can the driver focus his attention? Does the driver demonstrate appropriate judgment?
4.) Knowledge Requirements
Does the driver know and understand the “rules of the road?” Can he pass written and oral tests?
5.) Physical Limitations Requirements
Does the driver possess the physical ability to operate vehicle controls? Does he demonstrate the ability to steer, coordinate pedals, and control the gear shift? Can the driver scan left and right, look over his shoulder and use the vehicle’s mirrors?
6.) Specific Physical or Mental Condition and Its History
What is the specific condition or disorder and what is its diagnosis? When was the original onset of the physical or mental condition and what are its symptoms? What is the current status of the condition…..Is it stationary, improving, recurring, likely to worsen? What is the specific cause of the condition? What are the results of any medical testing? What is the physician’s prognosis?
7.) Aggravating Factors
Factors that the hearing officer may hold in aggravation are, if the driver has a history of alcohol or drug abuse. Does the driver have a demonstrated history of stress or sleep disorders? Does the driver suffer from poor diet or nutrition? Is the driver unwilling to avoid or control aggravating factors?
If the driver is taking medication to correct or control the specific physical or mental condition, what is the effectiveness of the prescription and what are its side effects? Is the driver practicing other medically appropriate regimens to correct or control the condition (e.g. diet, sufficient sleep, exercise, avoidance of stress, avoidance of specific activities, follow-up examinations and consultations)?
The hearing officer will also consider those factors which may allow a driver to compensate for a physical or mental condition that would otherwise impair his or her ability to safely drive a motor vehicle. The hearing officer may consider:
1.) Adjustment or Selection of Equipment
The hearing officer may consider the type of vehicle the driver operates as well as how the vehicle is equipped (e.g. type of transmission, steering knob, hand controls, extra mirrors, power steering).
2.) Adjustment in Physical Habits
The hearing officer may consider the driver’s willingness to improve scanning techniques, increase following distance, make better choices of lanes and earlier braking.
3.) Adjustment in Driving Environment
The hearing officer may consider the driver’s willingness to adjust the times when he drives and the distance he drives. The driver may avoid certain routes or not drive during certain weather conditions. The hearing officer will be particularly mindful of the driver’s concern and awareness of his physical and mental condition as it relates to public safety.
When the Hearing Ends
When the physical or mental re-examination hearing ends and the driver has complied with all of the requirements set forth by the hearing officer, it is time for that hearing officer to make a decision. The hearing officer must set forth his or her decision in writing and, if a suspension is ordered, provide the driver with sufficient enough information upon which to appeal the decision. The hearing officer may:
*Take no Action
In this instance the hearing officer rules that one’s physical or mental condition does not impair his ability to operate a motor vehicle. In this instance, the suspension is “set aside” and the driving privilege is fully re-instated.
In this instance, the hearing officer rules that one’s physical or mental condition may be an issue of continued concern and wishes to re-evaluate the driver at a later time.
*Medical Probation I
In this instance, the hearing officer rules that person’s physical or mental condition is an issue for concern and that the driver’s continued privilege to drive is contingent upon that driver’s compliance with a specified medical regimen. The driver is required to report any changes in his condition.
*Medical Probation II
In this instance, the hearing officer rules that the person’s physical or mental condition is an issue of continued concern and the driver’s continued privilege to drive is contingent upon the DMV receiving annual medical reports on specified dates.
In this instance, the hearing officer rules that the person’s physical or mental condition may affect his ability to safely operate a vehicle and permits the person to drive in adherence with a specific series of restrictions. A form of probationary driving, if the driver violates his terms of restriction, he is subject to license suspension or revocation.
In this instance, the hearing officer rules that the person’s physical or mental condition impairs his ability to safely operate a vehicle and poses a clear and present danger to the public. The term of the suspension is indefinite and will remain in effect until the condition is cured or controlled and the hearing officer is convinced that the person can operate a motor vehicle safely.
The worst of all possible results, this occurs when the hearing officer rules that the person’s physical or mental condition permanently impairs his ability to safely operate a motor vehicle and poses a clear and present danger to the public. In this instance, the hearing officer believes that the condition is permanent and will not likely improve. In this instance, the driver’s license is permanently terminated.