What is the Procedure Followed in a Lack of Skill Hearing?

The California Department of Motor Vehicles (DMV) is the government agency empowered to grant the California Driver License to qualified residents.  What few people realize, however, is just how much power the DMV also possesses to strip them of that same driving privilege.  The California Vehicle Code empowers the DMV to suspend or revoke the driving privilege of any driver in the state for a variety of reasons. One of the most common reasons the DMV will suspend or revoke a person’s driving privilege is for a Lack of Skill.  The Lack of Skill suspension can be triggered by a variety of events:

• Law Enforcement Referrals for moving violations or erratic driving
• Traffic Accidents
• Failure to pass a written test
• Failure to pass a driving test

If the DMV receives information that a person may lack the skill to drive, the department may initiate an investigation to determine if there is cause for concern, or the department may move to direct suspension of the driver license.

The DMV initiates an Action:

• Notice of Re-Examination: If the information received by the DMV is not clear or if there is no immediate threat to public safety, the DMV will issue a Notice of Re-Examination Appointment that is mailed to the driver.  The Re-Examination process allows the DMV to investigate the alleged Lack of Skill before interrupting the person’s privilege to drive.  The Re-Examination process may include a written test, vision test, test driving test and an interview.

At the end of the Re-Examination, the DMV will evaluate the information provided.  If there is no reason for concern, the investigation will end and the driver license will remain in full force.  On the other hand, if the driver fails to complete any phase of the Re-Examination, or if the hearing officer determines there is reason for concern, the DMV will suspend or revoke the driver license………. Period!

• Order of Suspension/Revocation: If the original information received by the DMV suggests that the person’s Lack of Skill presents an immediate hazard to the public; or, if the driver failed to successfully navigate the Re-Examination process, the DMV will issue and Order of Suspension/Revocation which is sent to the driver through the mail.

The Order of Suspension will clearly state the reason for the suspension and the date the suspension begins.  At that point, the driver must terminate driving until the license has been reinstated.  The Order of Suspension will also explain the driver’s right to schedule and conduct an Administrative Hearing to contest the suspension. This is where an accused driver should fight for themselves.

Scheduling a Lack of Skill Hearing:

If a licensed driver receives notice that the DMV has suspended or revoked their driving privilege for a Lack of Skill, they must react quickly to protect their rights.  It is the individual driver’s responsibility to request an Administrative Hearing and the DMV does not provide much time to get that done.  As a general rule, a Lack of Skill Hearing must be requested within 10-14 days of the date the order is signed.

This means that the affected driver or his representative must contact the Driver Safety Office closest to his or her home within just a number of days to request a hearing.  Administrative Hearings of this nature are not conducted at regular DMV field offices, but at special locations known as the Driver Safety Office.   If the affected driver fails to make the request for hearing in a timely manner and at the correct location, they will waive their right to a hearing.

Also, it has been the general policy of the DMV to not grant a Stay of Suspension when a Lack of Skill Hearing is pending.  This essentially means that most drivers will not be permitted to drive until their hearing has concluded and a decision has been made.

Conducting a Lack of Skill Hearing:

If the affected driver makes a timely request for a Lack of Skill 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 police reports, traffic accident reports, law enforcement referrals and notes of failed tests.

Once the DMV has scheduled a hearing and has provided Discovery to the driver, its obligation essentially ends.  The DMV does not assist a driver in preparing for their hearing.  There is very little information available anywhere to assist drivers in being ready to fight for themselves.  A properly run Lack of Skill Hearing is run very much like a mini trial.  Evidence is introduced and objections are heard.  Witnesses may testify and arguments are offered.  To properly conduct a Lack of Skill requires that the driver have some skill and knowledge with the Vehicle Code, the Evidence Code, the California Code of Civil Procedures and the Administrative Procedures Act.  Fortunately, California Law does permit drivers to be represented by defense experts known as Administrative Advocates.    Being represented by an Administrative Advocate assists a driver in navigating through the DMV’s hearing process and greatly increases one’s odds of victory.

Concluding a Lack of Skill Hearing:

Once the Lack of Skill hearing has concluded, the assigned Hearing Officer has several options in going forward:

• Order Additional Testing: The hearing officer does have the power to order additional written, vision and drive testing before reinstating a driving privilege.
• Order of Suspension/Revocation: The hearing officer may conclude that the driver did not sufficiently rebut the DMV’s reason for suspension and therefore, the hearing officer may decide to continue the suspension/revocation for an indeterminate period of time.
• Order of Set Aside: This is the very best possible resolution. An Order of Set Aside not only means the driver may return to driving but, also indicates the driver license should not have been suspended in the first place.  This requires the driver to demonstrate that the DMV initially acted incorrectly or that information provided to the DMV was false or misleading. The beauty of a Set Aside is that no period of suspension appears on the driving record and therefore, there are no negative insurance consequence
• Order to End Action: This is a fine result as it does return the driver to full driving privilege.  This requires that the DMV Hearing Officer make a finding that while the original suspension was warranted, there now is evidence which demonstrates the affected driver is safe to drive.  The one negative here is that a period of suspension will appear on the driving record which can cause an increase insurance costs.