Empowering California Drivers

To Maintain Their Driving Privilege

What is the Procedure Followed in a Negligent Operator Hearing?

While most Californians recognize the California Department of Motor Vehicles (DMV) as the government office where they go to apply for a driver license or to register their cars, few people realize the immense power the DMV possesses to completely suspend or revoke a driving privilege with little warning.

The California Vehicle Code empowers the DMV the monitor the driving habits and history of all people who drive in the State of California.  If the DMV ever determines that a particular driver has either been negligent or incompetent in the operation of a motor vehicle, the department has the absolute legal power to terminate that person’s privilege to drive.

One of the most common reasons the DMV will suspend or revoke a person’s driving privilege is because the department has identified them as a Negligent Operator  The DMV will label a person as a Negligent Operator for any of the following reasons:

  • An accumulation of too many violation “points” for moving violations or criminal convictions.
  • An accumulation of too many “points” for at-fault traffic accidents.
  • Causing or contributing to the serious injury of another person in a traffic accident.
  • Causing or contributing to the death of another person in a traffic accident.
  • Causing serious property damage in a traffic accident.
  • Being involved in an act of highway violence (Road Rage).
  • Involvement in any other incident where driving is determined to be negligent or incompetent.

The DMV will receive information regarding the negligent operation of a motor vehicle from a variety of sources:

  • Courts when a person is convicted of a moving violation or crime.
  • Law Enforcement Agencies.
  • Insurance Companies.
  • Friends, family or neighbors.
  • Anonymous sources.

If the DMV receives information that a person may be a Negligent Operator of a motor vehicle, the California Vehicle Code specifically empowers the DMV to conduct an investigation into the driver’s history and habits and to suspend or revoke the driving privilege if such an action is in the best interest of public safety.

California Vehicle Code Section 13800, determines….”The department may conduct an investigation to determine if the privilege of any person to operate a motor vehicle should be suspended or revoked…..”

California Vehicle Code Section 12810.5(a), determines…. “Except as otherwise provided in subdivision (b), a person whose driving record shows a violation point count of four or more points in 12 months, six or more point in 24 months or eight or more points in 36 months shall be prima facie presumed to be a Negligent Operator of a motor vehicle…”

If the DMV receives information that a person may be a Negligent Operator 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 issues an Order of Suspension/Revocation for Negligent Operation:

When the DMV receives any information which suggests an accused driver is a

Negligent Operator, there is no delay in the process.  For whatever reason the DMV has labeled the driver as negligent, their immediate reaction is to issue an Order of Suspension/Revocation to the involved driver.  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.

In almost every instance, the accused driver will learn they have come onto the DMV’s radar when they receive a written notice in the mail. The DMV does not communicate this information by email or by telephone.  These notices are sent by US Mail, which is one reason it is so important to keep the DMV updated on any changes of address.

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 intended date.

Scheduling a Negligent Operator Hearing:

When a driver receives the Order of Suspension/Revocation in the mail, the natural reaction is one of disbelief and anger.  Many people never see this action coming until it lands in their mail box.  Additionally, the law is crystal clear here.  If a person wishes to contest the planned suspension/revocation of their driving privilege, they must react very quickly.

In almost all instances, an accused driver will 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.

Within the walls of the California DMV is an enforcement division known as the Driver Safety Office.  The Driver Safety Office (DSO) is normally a stand-alone facility that is not directly attached to a regular DMV Field Office, although there are some exceptions.  There are numerous Driver Safety Offices located throughout the State of California stretching from Redding to San Diego.

One would think that contacting the DSO to schedule a Negligent Operator 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.  Especially in cases of fatality accidents or “road rage,” the DMV will seek to impose the suspension/revocation even before a hearing can be scheduled.  This isn’t fair but few California drivers know how to protect themselves and fewer still know how to request a Stay of Suspension.  A “Stay” stops the suspension until a decision is made in the hearing and should always be asked for at the time a hearing is requested.

The request for a Negligent Operator 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.”

Conducting a Negligent Operator Hearing:

If the affected driver makes a request for a Negligent Operator hearing in the time frame required by law, 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 witness statements.

Once the DMV has scheduled a hearing and has provided Discovery to the driver, the department will step back and watch to see how the driver reacts.  The DMV provides little information and is not there to assist in preparing the hearing, so a driver who seeks guidance from the DMV will be disappointed.

A Negligent Operator hearing is conducted very much like a mini trial, especially in the more serious cases involving fatalities or road rage.  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.  Drivers also must be prepared to offer testimony on their own behalf, which can be quite stressful.  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, especially in the more serious hearings.

Concluding a Negligent Operator Hearing:

Once the Negligent Operator hearing has concluded, 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 up to one year.  Before the driver license will be returned, the driver must complete the period of suspension/revocation, must file an SR-22 form and must request a “Reinstatement Interview.”
  • Order of Driving Probation: In this instance, the Hearing Officer may determine that the driver deserves a “second chance.”  Here the driver is returned to full driving privileges, however is placed on driving probation.  The term of probation is for one year and prohibits the effected driver from receiving any citations for moving violations or being involved in any “at fault” traffic accidents during that period.   If driving probation is violated, then the suspension/revocation is re-imposed.  An additional negative consequence of driving probation is the driver must file an SR-22 Form with the DMV which normally causes an increase in insurance rates.
  • 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 consequences.


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