Lack of Skill Hearings At The DMV

What does the DMV Consider to be a Lack of Skill?

While most Californians recognize the California Department of Motor Vehicles (DMV) as the agency empowered to issue driver licenses and to register vehicles, few people realize just how much power the DMV possesses to also suspend or revoke a driver license. Once the DMV issues a driver license to a person, the department then assumes the role of monitoring that driver to ensure they always maintain the physical and mental ability to drive; as well as the skill and the knowledge to drive.

A common area of concern for the DMV is when events or information become apparent that suggest a driver no longer possesses the Skill to Drive.   A Lack of Skill issue may arise for the DMV if any of the following were to occur:

• During a traffic enforcement stop, a law enforcement officer sees or hears something that causes him to suspect the driver does not possess the knowledge or skill to safely drive. We see this occur frequently in the case of mature drivers where police officers suspect that a person’s age is now affecting their ability to drive.
• During the investigation of a traffic accident, a law enforcement officer sees or hears something to suggest the accident occurred because the driver does not possess the skill or knowledge necessary to have avoided the collision. This often occurs in cases of pedal misapplication where a driver accidentally steps on the accelerator instead of the brake.
• During the process of renewing a driver license or, during a DMV Re-Examination, the affected driver is not able to pass a written test.
• During the process of renewing a driver license or, during a DMV Re-Examination, the affected driver is not able to pass a “behind the wheel” driving test.
• Information received from a friend, family member, neighbor or anonymous tipster. The DMV is required to investigate any allegation that a driver lacks the skill to drive, regardless of where the information originates.

How Do Drivers Learn the DMV is Suspending Their License for a Lack of Skill?

 In almost every instance, the affected driver will learn that the DMV is taking a suspension action against them for a Lack of Skill in one of the following ways:

• If the driver has been unable to pass a written test or a driving test, he or she will usually be notified “in-person” that their driver license is being suspended when a DMV employee hands them an Order of Suspension/Revocation.
• If the allegation of Lack of Skill comes from another source, the affected driver will usually learn the DMV is suspending their driver license when they receive an Order of Suspension/Revocation in the US Mail.

In both instances, the notice will advise the driver the reason for the suspension action, the date the suspension takes effect, and the fact that the driver has a right to a hearing to contest the suspension.  If a driver wishes to fight the suspension of their license, there is a requirement that they contact the local Driver Safety Office in a short period of time to request a hearing.  If the order was provided in person, the affected driver has 10 days to make the request for hearing.  If the order was provided by US Mail, the driver has 14 days to make the request.

Why is the DMV Taking This Action Against Me?

The stated mission of the California Department of Motor Vehicles (DMV) is to ensure the safety of the motoring public.  In drafting the Vehicle Code, the California State Legislature empowered the DMV to investigate any issue that may affect public safety and to take an immediate suspension action if it is warranted.

California Vehicle Code Section 13800…. Determines that the DMV “may conduct an investigation to determine whether the driving privilege of any person to operate a motor vehicle should be suspended or revoked….”

California Vehicle Code Section 13953…. Determines that the DMV “may forthwith and without a hearing” suspend or revoke a person’s driver license in the interest of public safety.

The bottom line is that if the DMV suspects a driver no longer possesses the knowledge or the skill to safely drive, the department will jerk them off the road until such time as that can be established.

What are the Options to Protecting My Privilege to Drive?

 If the DMV initiates an action to suspend or revoke a person’s driver license for a Lack of Skill, that driver must be given the opportunity to defend themselves.  The driver is permitted to schedule and conduct an administrative hearing before the Driver Safety Office near their home to rebut the DMV’s suspicion and to demonstrate that they really do possess the requisite skills to drive. Known as a Lack of Skill Hearing, this administrative hearing is run much like a mini-trial.  The driver is permitted to present evidence and witnesses and is further permitted to attack the evidence against them.

It is important to note that if the affected driver chooses to defend themselves, there is a specific requirement that the Lack of Skill Hearing be requested in a timely matter.  Failure to contact the Driver Safety Office in 10 to 14 days is a forfeiture of the right to hearing and virtually assures that the suspension will go into effect.

Lack of Skill Hearing Summary

 The Lack of Skill Hearing is a full-blown evidentiary hearing that should be run like a mini-trial. Evidence is introduced and objections are made.  Witnesses and experts may testify and legal arguments are heard.  To prevail at such a hearing requires that a person have a working knowledge of the California Vehicle Code, the California Evidence Code, the California Code of Civil Procedures, the Administrative Procedures Act and basic DMV policy.  Few drivers in California possess the training or experience necessary to handle such a hearing correctly, which can lead to great frustration and the loss of the driver license.   Fortunately drivers are permitted to be represented by specially trained DMV Defense Experts known as Administrative Advocates.  Not only can this type of representation make the DMV process more understandable but the use of such an expert greatly increases one’s odds of winning.

If you wish to defend yourself at a Lack of Skill Hearing, you are permitted to request your own hearing and to represent yourself. If you would like representation, DMV Administrative Advocates can assist you in fighting to protect your driving privilege.  You can also learn more and study a complete overview of the Lack of Skill hearing procedure.