DMV Negligent Operator Hearings

DMV Negligent Operator Hearings

DMV Negligent Operator Suspension Actions 

Authority to Suspend, Revoke, or Withhold Privilege

The DMV may suspend, revoke, or withhold a driving privilege if it determines that the driver or applicant is a negligent or incompetent operator of a motor vehicle. CVC §§12809(e) and 13359.

Presumption of Negligent Operation 

A driver is presumptively negligent where he accumulates too many points on his record within a specified time period. CVC §12810.5. Points are determined by CVC §12810.

Note the anti-stacking provision of CVC §12810(h), but mindful of the fact that the DMV still stacks an at-fault accident point onto any conviction arising out of the same incident (e.g., a drunk driving conviction involving an at-fault accident results in a total of 3 points). See Essayli v. DMV (2005). Sometimes two accidents or more are assessed in the same DUI incident (e.g., client hits a guardrail and a little further down the road he rear ends a car).

It is recommended that client always request a hearing in negligent operation actions unless there is another longer suspension in place on another action. Normally, the suspension can be mitigated to probation with a proper presentation.

Notice of Action and Right to Hearing

Whenever the DMV intends to suspend, revoke, or impose conditions of probation on the driving privilege, it must give notice of such intention and advise the driver of his right to a hearing. CVC §13950. At least 30 days notice must be given to the driver before the suspension or revocation may be imposed, unless a medical or physical condition requires immediate action for the safety of others. CVC §13953.
Bear in mind, however, that where a suspension or revocation is made mandatory by the vehicle code (e.g., commercial driver gets a 2-point offense while driving a commercial vehicle, CVC §13369), there is no right to a hearing. CVC §14101; see also, e.g., CVC §13371(a)(2).

Request for Negligent Operator Hearing

The driver has 10 days to request a hearing where service is personal, or 14 days if service is by mail. CVC §14100.

Negligent Operator Hearing and Evidence 

Evidence is controlled by CVC §14104.7 and Gov. Code §11513.

The driver may demand a telephone or in-person hearing.

The presumption of negligent operator under CVC §12810.5 is a prima facie presumption only, and may be rebutted by the driver. Where the driver appears at the hearing, the DMV must “give due consideration to the amount of use or mileage traveled in the operation of a motor vehicle” by him. Id., subsection (a). “Appears” is not defined, but seems to mean by either telephone or in person so that he may be questioned about his amount of driving.

Negligent Operator Hearing Determination of Issues

Title 13, California Code of Regulations, §110.04(a) incorporates by reference “Guidelines for Actions Against Driving Privilege Based on the Negligent Operator Treatment System.”

 Where the driver requests a hearing, the DMV is frequently willing to place him on probation rather than suspend or revoke him for negligent operation.
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