Individuals arrested for DUI in California face two separate legal processes following their arrest: A criminal case in the Superior Court and an Administrative Per Se hearing with the California DMV. When someone is arrested for DUI it is their responsibility to request an administrative hearing with the DMV within 10 days. If a hearing is not requested, after 30 days from the date of arrest their license will automatically be suspended for four months. If a hearing is requested within 10 days, no action will be taken against their license until the conclusion of that hearing.


On the criminal side of a DUI, if the case proceeded to trial the defendant would have their case decided by a jury of their peers, with the applicable “beyond a reasonable doubt” legal standard, which is the highest legal threshold in our justice system. In contrast, the DMV hearing process consists of a hearing where the presiding hearing officer is also a DMV employee and is tasked with being both the decision maker and an advocate for the DMV and its interests. Moreover, the standard of proof is the significantly lower “preponderance of the evidence” (more likely than not) standard and the hearing officer can also take great liberties with the admissibility of evidence, to include allowing in unsworn statements and relying on hearsay. Another unique feature of DMV hearings is the permissibility of ex parte communications amongst DMV employees. Most significantly, the DMV authorizes its managers to change the decision of the hearing officer or order the hearing officer to change their decision.

Attorneys defending their clients in DUI matters have long criticized and challenged the DMV process, claiming it violates the due process rights of clients by virtue of the dual role served by the hearing officer, the permissibility of ex parte communications, and the low legal standards applied at the hearing. The reality is, even if an individual is either not prosecuted or exonerated criminally, they can still have their license suspended or revoked by either failing to request an APS hearing or simply losing their hearing due to the lack of due process and substantially lower burden of proof compared to criminal proceedings.

These long-standing issues motivated DUI advocates to challenge the legality of the DMV hearing process by initiating the case of California DUI Lawyers Association et al. v. California Department of Motor Vehicles et al. The California DUI Lawyers Association (CDLA) originally filed the lawsuit in 2014 seeking injunctive and declaratory relief from the DMV and its director. CDLA alleged (1) violation of 42 United States Code section 1983 affecting due process rights under the Fourteenth Amendment to the United States Constitution; (2) violation of due process rights under article 1, section 7 of the California Constitution; and (3) “illegal expenditure of funds” under Code of Civil Procedure section 526a. In sum, CDLA claimed that the lack of a neutral hearing officer, and the ex parte communications between DMV managers and hearing officers, violate drivers’ rights to procedural due process under the California and United States Constitution.

The trial court concluded the DMV’s allowance for ex parte managerial communications and their meddling with the hearing officers’ decision-making violates due process under the California Constitution and constitutes waste under Code of Civil Procedure section 526a. The trial court judgment prohibited the DMV from maintaining or implementing a structure allowing managerial interference with hearing officers’ decision-making through “ex parte communications or command control.” It also found CDLA to be the prevailing party for purposes of an award of attorneys’ fees.

On appeal, the appellate court determined that the DMV’s hearing structure breached the minimum standards of due process under 42 U.S. Code section 1983 and under section 7 of Article I of California’s constitution, created an irreconcilable conflict, and amounted to an unacceptable risk of bias. The court of appeal noted that the DMV acknowledged it was a party to their hearings, that such hearings were adversarial, and that the hearing officer’s role involved both advocating on the DMV’s behalf and acting as a fact-finder. The trial court thus made an error when it denied the plaintiffs’ motion for summary adjudication of its section 1983 claim, given that the lack of neutral hearing officers at APS hearings breached the federal and state due process rights of drivers. The court of appeal also found that a party seeking injunctive relief against a state official in their official capacity does not need to show the official’s personal involvement in the claimed constitutional violation.

Lastly, the court of appeal’s also issued a permanent injunction regarding ex parte communications. The DMV is permanently enjoined and restrained from having its APS hearing officers function as advocates for the position of the DMV while also being fact-finders in the same adversarial proceedings.

It is difficult to ascertain what the lasting impact of this decision will be; however, the DMV is now proceeding with two separate employees for hearings. One as the DMV’s advocate and the other as the decision maker. What affect this new approach will have on the outcome of the hearings is yet to be seen, but the fact still remains that both individuals are still employees of the DMV. Thus, one can reasonably assume that the hearings will likely be more of the same.