dmv-writs.com

Frequently Asked Writ Questions

What is a writ?

"Writ" is another word for "order." A writ is a kind of order from a court telling a lower court or a government body like a school board or DMV to reverse a decision. The fancy legal term is writ of mandate or writ of mandamus following the Latin convention.

Where the writ is directed to an administrative agency like DMV, it is often called a writ of administrative mandamus. Whether you prefer the Latin or not, a DMV writ is an order signed by a judge telling DMV to reverse one it its decisions-usually a license suspension.

The writ process is the way you appeal a DMV suspension-if you win the appeal, you get a writ; if you win the writ, you get your license back. If DMV acted in an arbitrary and capricious manners, you also get your attorneys' fees paid.

What is a "stay"?

A stay is the stopping, usually temporarily, of the carrying out of an order. The stay most people are familiar with is the stay of execution, where a death row inmate's date with death is delayed long enough for some sort of appeal to be heard. However, just about any process of law can be stayed with a good reason. For example, the California Code of Civil Procedure authorizes a judge to stay the action of any State administrative agency while a writ action is pending to challenge that decision.

In the DMV writ context, a stay is the stopping of a license suspension long enough for a judge to decide whether or not to issue the writ.

If you think about it for a minute, a stay just makes good sense to prevent the harm that could occur during the time it takes a judge to reverse an agency decision. In the DMV context, a motorist should not lose her license for the two to three months it may take to prove the suspension was wrongful. A stay is the temporary order that prevents this kind of harm.

What is departmental review?

Departmental Review is theoretically one way to obtain relief after an arbitrary DMV decision. You send a letter to Sacramento with a check for $120, and one of the DMV bureaucrats reviews the DMV file for any errors. The DMV is supposed to give you your license back if the hearing officer committed an error in suspending your license. While lawyers have heard stories of Departmental Review actually returning a license to a motorist, it is widely regarded as so rare as to be a waste of time.

Worse, there is no provision for staying the suspension during the process of Departmental Review, so you cannot drive legally while you wait and hope for justice from Sacramento.

What a request for Departmental Review does accomplish is an extension of the time you have to seek the writ that you should have been pursuing in the first place.

Do I need an attorney?

Yes. To get a DMV writ, you must file a lawsuit with the Superior Court in the jurisdiction where the DMV hearing office is located.

Many experienced lawyers themselves hire DMV writ attorneys (like Mr. McCoy) to pursue DMV writs when they lose a DMV hearing. A DMV writ should not be attempted without hiring an experienced writ attorney.

What is implied consent?

Implied consent is the doctrine of law that views your driving in a particular state as an advanced consent to taking a chemical test (blood, breath or (rarely) urine) if you are arrested for DUI. For example, by driving in California, you are deemed already to have consented to take a chemical test-your consent is implied by your driving.

By refusing to take a chemical test when asked to do so by an arresting officer, you have arguably broken your implied agreement. DMV will consider your actions a refusal and take action accordingly.

What is a "refusal"

What are the penalties if I refuse to take a breath or blood test?

If you are arrested for DUI and refuse to take a chemical test, you are viewed to have broken your implied consent agreement and will have to suffer the penalties of a refusal. One of those consequences is that you will be sentenced more harshly if you are convicted of a DUI. Another consequence is that DMV will start an administrative action to suspend or revoke your driver license as detailed below.

DEFENSES TO A REFUSAL

There are defenses to a refusal based on three types of confusion on your part. If at the time you are arrested you are suffering a medical condition that renders you incapable of understanding what's going on (such as head trauma from a car accident or hypoglycemia), then you have an automatic defense to the refusal penalties. Second, if the officer confused you by the way she explained the implied consent rules to you, then you also qualify for the exception and should not suffer the refusal penalties.

Finally, if the officer fails to state, understates or misstates the consequences of refusing the test, you would also have a defense to a refusal action.

PENALTIES FOR A REFUSAL

If you have no prior DUIs, your license will be suspended for one year. If you were convicted of DUI or "wet reckless driving" within the previous 10 years, your license will be revoked for two years. Two or more priors in 10 years gets you revoked for three years.

For commercial driver license holders, a second refusal in a lifetime disqualifies you from ever holding commercial license again for the rest of your life.