What is the Procedure Followed in a Fraudulent Activity Hearing?

The California Department of Motor Vehicles (DMV) is one of the largest and most easily recognized government agencies in the State of California.  Within the ranks of the DMV is an enforcement division known as the Division of Driver Safety.   Empowered by the State Legislature to ensure public safety, the DMV uses the Division of Driver Safety to enforce the laws regarding the proper issuance and use of the California Driver License.

If the DMV receives information which suggests that a person has inappropriately applied for the issuance or renewal of a driver license; or if the holder of a driver license has committed an act of fraud using a driver license, the DMV will identify that as Fraudulent Activity and will act very quickly to right that wrong.

The DMV learns of an act of Fraudulent Activity:

In the vast majority of cases, the DMV will learn of an act of Fraudulent Activity through an incident that occurs at a DMV Field Office.  Because the Field Offices are where most testing, vetting and qualifying for driver licenses occur, this is where Fraudulent Activity is most prevalent.

Many cases begin with a DMV employee catching an applicant cheating on a written test or introducing false documents to establish identity.  While there are much more complicated cases which involve conspiracies among several people, the most common incident is a person who gets caught cheating at a field office.

When such an incident is discovered, the testing or qualification process is ended and the accused person is ejected from the Field Office.  At that point, the involved DMV employee will write a report that is directed to the Fraudulent Activity Unit in Sacramento for review.  This office of the DMV will determine if there is sufficient evidence to proceed with an action or they will close the case.

The DMV issues an Order of Suspension/Revocation for Fraudulent Activity:

If the Fraudulent Activity Unit in Sacramento concludes that an action is warranted against the accused person, the file will be transferred to the Driver Safety Office located closest to the accused person’s home and a case will be opened.

When the local Driver Safety Office receives information accusing a person of Fraudulent Activity, there is no delay in the process.  The local Driver Safety Office will immediately issue an Order of Suspension/Revocation.   That’s right, without any further investigation, the DMV will presume its information to be correct and will immediately initiate the process to suspend or revoke the person’s driving privilege for an indeterminate period of time.

In most instances the accused person probably knows that an issue is brewing because of the initial incident at the DMV Field Office.  In some cases, however, the accused person may not be aware that an allegation has been made against them.  One thing is for certain, when an accused person goes to their mail box and receives the Order of Suspension/Revocation, it will be abundantly clear that their driving privilege is in jeopardy.

The Order of Suspension/Revocation will clearly state the reason the action is being taken and the Vehicle Code section granting the DMV the power to do so.  The notice will also indicate the effective date of the suspension/revocation.  Finally, this notice will advise the driver that he or she has 14 days to contact the department to request an administrative hearing if they wish to contest the suspension/revocation of their driving privilege.   Failure to contact the appropriate division of the DMV will waive one’s right to a hearing and the suspension/revocation will automatically go into effect on the indicated date.

Scheduling a Fraudulent Activity Hearing:

Receiving an Order of Suspension/Revocation in the mail can cause a person to feel a range of emotions, especially if they had no idea a problem was brewing with the DMV.  The one thing that is certain is that a person cannot delay in defending themselves.  They must react correctly and quickly.

In almost all instances, an accused driver will only be provided a period of 14 days, from the date the order was signed, to contact the DMV to schedule a hearing.  The hearing itself will not occur within 14 days, but the initial contact to schedule the hearing must occur within that 14 day window of opportunity.  Because very few people deal with the DMV at this level, most drivers have no idea where the contact must be made.  This can create problems.

Most people will make the mistake of contacting their local DMV Field Office to schedule a hearing.  All administrative hearings conducted by the DMV are handled by the Division of Driver Safety.  This is an enforcement branch of the DMV that is normally located in buildings removed from the basic field offices.

Also, one would think that scheduling a Fraudulent Activity Hearing should be as easy as picking up the telephone and speaking with a staff member.  In fact, it really should be that easy, but rarely is.   The support staff members at the Driver Safety Office are not warm or friendly.  Also, they rarely are willing to provide even basic information to assist an accused person.  In addition to scheduling a hearing, the accused person also must know how to request a “Stay of Suspension” which stops the suspension/revocation of the driving privilege until a hearing has been conducted and a decision has been rendered.   It is critically important to ask for a Stay of Suspension because a Fraudulent Activity Hearing can often take months to resolve and an accused person’s life could be adversely affected if they can’t drive during that time.

Requesting a Fraudulent Activity Hearing can be confusing and frustrating.  All drivers who have contact with the Driver Safety Office should keep extensive notes which include the name of the staff member they spoke to as well as the date and time of contact.  Consideration must also be given to whether the driver wishes to conduct his hearing “in-person” or by “telephone.”  It is also a good idea to conduct all contact with the Driver Safety Office in writing and by way of facsimile transmission to preserve a record of contact.

Conducting a Fraudulent Activity Hearing:

If an accused person makes a proper and timely request for a Fraudulent Activity Hearing, the DMV has no choice but to grant the request.  The department must schedule a hearing and must provide the driver with copies of any evidence it intends to present.  Known as “Discovery,” these items of evidence usually include the person’s driving record, copies of written tests or other documents, written statements from DMV employees or law enforcement officers.

In many Fraudulent Activity cases, it is very common for the DMV to present the DMV employee who witnessed the event to offer live testimony at the hearing.  In these cases, the DMV must alert the accused person that the employee will be testifying at the hearing so they can prepare to cross-examine that witness.

Once the DMV has scheduled a hearing and has provided Discovery to the accused person, the department will then do very little to assist that person to prepare for their hearing.  This can be problematic as certain codes and regulations require the accused person to abide by certain rules in the preparation of their hearing.  For example, if an accused person seeks to introduce evidence or witnesses at their hearing, there are specific guidelines for doing so and for how that person alerts the DMV to that evidence.

A Fraudulent Activity hearing is conducted very much like a mini trial. Evidence is introduced and objections are heard.  Witnesses may testify and arguments are offered.  To properly conduct a Fraudulent Activity hearing requires that the accused person have some skill and knowledge with the Vehicle Code, the Evidence Code, the California Code of Civil Procedures and the Administrative Procedures Act.  The accused person also must be prepared to cross examine the DMV’s witnesses; and of course, there are rules governing that as well.  Finally the accused person must be prepared to offer testimony on their own behalf, which can be quite stressful and damaging if not handled correctly.

Fortunately, California Law does permit drivers to be represented by defense experts known as Administrative Advocates.    The DMV process can be quite overwhelming so enlisting the aid of an Administrative Advocate can reduce mistakes and greatly increase a person’s chance of winning.

Concluding a Fraudulent Activity Hearing:

Once the Fraudulent Activity hearing has come to an end, the hearing officer will announce their intention to review all evidence and testimony before rendering a decision.  In making their decision, the assigned Hearing Officer has several options in going forward:

• Order of Suspension/Revocation: The hearing officer may conclude that the driver did not adequately rebut the DMV’s position and conclude that a suspension/revocation is necessary to protect public safety.   In this result, the Hearing Officer may suspend or revoke that person’s driving privilege for an indeterminate period of time. This usually equates to a period of one-year before the person can hope to have the matter reviewed.  Before the driver license can be granted or returned, the driver must complete the period of suspension/revocation, must file an SR-22 form and must request a “Reinstatement Interview.”
  

• Order of Reinstatement: The hearing officer may conclude that although the original suspension/revocation was justified and that the accused person was involved in fraudulent activity; there may be a set of facts which support ending the suspension/revocation and allowing the issuance or reinstatement of the driver license.  This will occur where a person may not have been aware they were committing an act of fraud.
  

• Order of Set Aside: This is the very best possible resolution. An Order of Set Aside is similar to being found “not guilty” in court.  This means the accused person has proven they were wrongly accused or that the DMV’s evidence is insufficient to support a suspension/revocation.  The beauty of a Set Aside is that no period of suspension appears on the driving record and therefore, there are no negative insurance consequences.