Found an issue on this page? Let us know and we will look into it as soon as possible.
After a DUI arrest, I lost my DMV hearing. I want to file a Writ of Mandate to have my suspension stayed how do I do this?
Anonymous2 views2 answers
I have an attorney who is taking my criminal case to trial within the month but says I need to get another attorney to do the writ. So with no more money, I need my suspension stayed at least until then. Since, I am a paralegal with some drafting experience I think I can do it. But I need to know what the full process is (and any examples, on point, of the writ and ex parte would be great. In my case, the breathalyzer was taken out of order right after my test gave a reading, so I may have a decent case in the criminal court. I just need assistance to get the DMV decision set aside. Help me please!!
While I don't practice in CA, here is my take on the matter.
While you claim to be a Paralegal with good writing skills, you also seem to have gotten a lot of things wrong in your question, which leads me to believe otherwise.
First, it is a Writ of Mandamus. Second, if you have no money and want to do it yourself, you may be taking on a larger task than you realize. It normally costs money just to file such a Writ and it has to be written specifically for your case. Your recitation of the facts sound muddled to some degree. Moreover, a Writ of that nature may not be decided by the time your criminal case is completed, since it can be complex and may require a hearing since there is likely to be a factual dispute between you and the DMV authorities.
I strongly suggest you either discuss it with the firm for which you may work or hire an attorney to either do the work for you or oversee whatever you produce.
I don't have any such "forms" as you request, nor do I suspect anyone else will offer to you. But good luck in your endeavor.
Mr. Robinson's answer is a good example of how out of state attorneys get in trouble commenting on CA law. The writ of mandamus you refer to is a relatively simple writ to the Superior Court; Mr. Robinson's answer assumes it is like any other writ of mandamus to the Court of Appeal which would indeed be a huge process. You need to file the writ with a request for administrative review of the APS hearing decision. Following is some additional information on the two processes.
The two ways to review the Hearing Officer’s decision is to request Administrative Review and Petition for a Writ of Mandate before the Superior Court. If Administrative Review results in the license being reinstated, no further proceedings are required. Similarly, if the Petition of the Writ of Mandate is granted, the Superior Court will order the DMV to return the driver’s license.
The request for Administrative Review is an internal proceeding within the Department of Motor Vehicles. In addition to having authority to overrule the DMV Hearing Officer, the internal proceedings may result in the reopening of the DMV hearing for other reasons. However, a request for Administrative Review rarely results in the driver license being reinstated.
Instead of or in addition to requesting Administrative Review, the driver license holder may Petition for a Writ of Mandate. “Writ” is another word for “court order.” The writ process is the way a DMV suspension is challenged. If your driver’s license has been suspended by the California DMV, it is critical to act quickly. In most cases a California driver has only thirty days to challenge a DMV license suspension before the decision becomes final.
Most motorists require a stay of the DMV license suspension during the period the writ proceedings are pending. Such relief is not available if the driver has requested Administrative Review. Accordingly, the first objective after filing the Petition is to schedule an ex parte motion for a stay of the driver license suspension. California law permits (though does not require) a stay of a DMV driver license suspension during the time it takes a judge to decide a petition for a writ of mandate.