Writ of Mandamus for DMV Petitions

When the writ of mandamus was first introduced many centuries ago, only monarchs could issue these writs. The word “mandamus” means “we command” in Latin, as in, “we command the court” to take a certain action.

In its most basic form, a writ is an order issued by a higher court. Upon receiving this set of instructions, a government agency (such as the Department of Motor Vehicles (DMV)) must comply. The DMV sometimes uses the term “alternative writ of mandate” when referring to the writ of mandamus. The legal authority for a writ petition against the DMV is found in California Code of Civil Procedure section 1094.5 and California Vehicle Code section 13559.

In most legal proceedings, writs are quite rare. The appellate process serves the same basic function, and there is no need for writs if appeals successfully facilitate favorable decisions. For example, you can appeal a decision in a criminal case, forcing a higher court to re-examine a judge’s decision.

However, some legal proceedings lack this appellate process, and the DMV is a clear example. A writ of mandamus represents one of the few ways to force the DMV to re-examine a previous decision. These decisions might involve suspended licenses, points added to a driving record, and so on.

When Can a Writ of Mandamus Be Filed?

You may file a writ of mandamus after an unfavorable DMV hearing. For example, the hearing may have resulted in a lengthy driver’s license revocation, or even a commercial driver’s license revocation. Many motorists in California request administrative review before petitioning for a writ of mandamus. Although this is not necessary, it is generally a smart idea to exhaust all other options before considering writs. Administrative review is an internal process within the DMV, and it involves supervisory review of the outcome of your DMV hearing.

If you do not request an administrative review, you must file your petition for a writ of mandamus within 34 days of the DMV decision. If you request an administrative review and you still receive an unfavorable outcome, you have 94 days to file a writ of mandamus after the panel’s decision. There are also various fees to consider when petitioning for a writ of mandamus, although these vary depending on your county of residence.

Limitations on a Writ of Mandamus

Although writs of mandamus can prove useful in many situations, they have limitations. First of all, you can only file a writ of mandamus after a government agency like the DMV issues a final decision. If the decision is still pending, you must wait before filing your petition.

A writ is essentially a “last resort,” and you should only consider this course of action when all other options have been exhausted. This may include the DMV’s internal administrative review process. Specifically, Section 1084-1097 of California’s Code of Civil Procedure states that writs of mandamus are only suitable if “there is not a plain, speedy, and adequate remedy, in the ordinary course of law.”

Those serious about filing petitions for writs of mandamus must follow a very specific procedure. To begin the writ process in California, you will need to file a petition with the Superior Court of your county. You must file your petition within certain time limits, and certain legal fees may be necessary.

Obtain a Stay of the Suspension

Next, you may want to obtain a stay of your driver’s license suspension while the DMV writ is pending. When you file a petition for a writ of mandamus, you take advantage of a core concept of our legal system: Innocent until proven guilty. Because of this principle, you are allowed to continue driving, pending a final decision from a judge. Until a judge formally issues a decision based on your petition, you can pursue a “stay” of your suspension by filing an ex parte motion.

Note that this may not be possible if the court determines that you represent a risk to the public. For example, you stand a better chance of getting a stay of suspension after a minor first-offense DUI license revocation. If you have numerous prior convictions and a history of causing injuries while driving, your stay may not be approved. You can also obtain a stay of a commercial driver’s license revocation while the DMV writ is pending.

Prepare the Record and Legal Argument

Next, you will need to carefully prepare a record of your DMV hearing. This includes all evidence presented during the hearing, a transcript of the hearing, and any other relevant information.

Once you have collected this information, you will prepare your legal argument. This is your opportunity to tell your side of the story and explain why the DMV made a legal error during their hearing. A qualified attorney can prepare a compelling argument based on legal research, case law, solid evidence, and much more.

Settle or Argue the Case in Court

After you make your legal arguments, the DMV will have the opportunity to settle instead of having the trial court rule on the DMV writ. If your arguments are clearly valid, the DMV will likely acknowledge its mistake and simply agree to re-issue your license.

If the DMV decides not to settle, you will need to appear in the trial court and argue your case before a judge. Your lawyer will present oral argument as to why the DMV driver’s license suspension is improper, and argue why the DMV writ should be granted.

What Happens if You Win the Writ?

A successful writ ends with a favorable decision issued by the judge. The writ will be issued to the DMV, forcing them to reverse the decision they made after your initial hearing. If your license was suspended, you will get it back with no further complications. Additionally, the trial court can award attorney’s fees to your lawyer, which can help offset the fees and costs of the DMV writ.

What Happens if You Lose the Writ?

If you lose the writ, you can still pursue further legal action alongside your attorney. It may be possible to argue your case in appellate courts. Speak with your lawyer for more information on the next steps.