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San Diego DMV Attorney - Negligent Operator Hearings

Posted by Michael Rehm | Nov 13, 2014 | 0 Comments


I'm Attorney Michael Rehm, and this video today is dealing with negligent operator suspensions and just the whole legal principle with negligent operator hearings and how they classify you as a negligent operator here in California and what it means for your driver's license.

This is just my understanding of the law.  This is based on my personal experience.  Don't take it as legal advice.  This doesn't form an attorney/client relationship.  Always consult an attorney, whether it be me or any other attorney, if you're facing any kind of a legal situation because the laws change.

Negligent operator: A negligent operator is a principle the DMV holds.  And if you accrue too many points in a given period of time, they're going to suspend your license for one year.  It could be less than that, but generally it's a one-year suspension.

The points in a given period of time is 4 points in 12 months, 6 points in 2 years, 8 points in 3 years.  After three years, the points drop off.  But if you accrue four or more in a year, six or more in two years, or eight or more in three years, you're going to get a letter in the mail stating that you've been designated a negligent operator and that they're going to suspend your driver's license for one year.But if you read that letter carefully, you're going to see that you're entitled to a hearing to contest that suspension.

And, generally, at least my understanding of it is, you have 14 days to set the hearing with the DMV.  It could be as low as 10, but I believe it's 14, so read that letter carefully as far as the given period of time.  And they give you a form that you can mail in or fax in.  You can do that.  You can also just call, and you're going to call your local Driver's Safety Office depending on where you are.  And you can set it up over the phone.  But if you do set it up over the phone, take good records.  Get the operator's name you spoke with.  And make sure you write down carefully the date, time, and location of the hearing, whether it be over the phone or in person and, most importantly, who the hearing officer is so that way, later on, if they have no record of you setting up the hearing, if you give them that information, generally they can find it pretty quick.

So let's just start with the basics.  What exactly are they looking for at these hearings and how do you make sure that you do not lose your license for a year?  Well, at these hearings, the odds of just being completely successful if you have four legitimate points in the period of time, or six in two years or eight in three years, whatever the case may be, chances are they're just not going to set aside the license suspension completely.  But what they will offer you, and what is a good goal to go for is what's called probation.  And, generally, what that means is you're on probation with the DMV for generally around six months.  It can be anywhere from 6 months to 12 months.But what probation means is basically you keep your license free and clear.

You just can't get any more tickets, and you can't fail to pay on any tickets.  You can't fail to appear.  They give certain conditions of probation.  But in my experience, generally what it is, if you have any outstanding tickets, you have to pay them or at least not default on the payment.  And you can't get any more tickets.  And by tickets I mean tickets, not necessarily moving violations.  A lot of times they'll set it up where a cell phone ticket isn't a moving violation, things to that extent.  If you get any other tickets, not necessarily moving violations, then they'll attempt to violate your probation.  And what that means is you'll get another letter in the mail stating that you violated the terms of your probation.  And you'll get another chance to a hearing, and we'll be right back where we started from.

But probation is possible, I guess, is the gist of what I'm trying to say.  And so you can keep your license free and clear if you can obtain probation from the hearing officer at the DMV.

How do you get probation?  What's the strategy?  There are a number of principles that go into this.  There's, first off, the amount of miles you drive, and the more the better.

Now listen; listen carefully because a lot of people get confused on this point.  They're going to ask you how many miles you drive professionally and how many miles you drive personally each week, month, whatever the case may be. Now, the reason they're asking for the miles is that, instinctively, a lot of people think, well, they probably want somebody that doesn't drive a lot of miles because they don't want them on the road.  Really, what it is, if you drive an extraordinary amount of miles, more than the average person, then it's more reasonable to understand why you would be accruing more violations.  So if you drive a lot of miles, that can actually help your chances of obtaining probation in the DMV hearing.  And the reason why is because you drive more than the average person, so it's more reasonable to expect that you would get more violations than the average person.  So that's what you're going to be looking at first.  That's going to be a big issue they look at: personal and professional miles.

Remorse: You have to express remorse for what you have done, or you should if you want to obtain probation or whatever the case may be.  And it has to be genuine.  You have to, you know, explain why you're remorseful.  And these two kind of tie in together: remorse and explanation.You have to have some sort of an explanation as to what happened.  They're going to go through each of the points.  And they're going to say, on this date and time you were cited for speeding or whatever the case may be.  And you're going to have to explain what happened.

And then, most importantly, why it will not happen again.  Now, obviously that depends on the type of violation.  If you receive a DUI or a driving on a suspended license, those are two-point offenses, and that's actually a common scenario is an individual will obtain a DUI, and then they'll get a driving on a suspended license thereafter.  And then they get 4 points in 12 months, and they get a year suspension.  A lot of times they don't contest it or get probation, which they probably could depending on the other factors here.  But basically what I'm getting at is you have to have some sort of an explanation as to why this is not going to happen again.

I'll give you an example.  I have a client who all four of his points were from speeding offenses.  And he was getting convicted of speeding.  They weren't -- it wasn't egregious.  It wasn't, you know, 25 miles per hour over the speed limit or anything to that extent, but he was speeding.  But he was speeding because he was constantly late for work.  And he had a situation where he lived quite a ways away from his work.  He was consistently late.  And then he moved, and he didn't live so far away from work, so he wasn't late any more for work.  And he wasn't speeding, and that was in essence the explanation.  And the hearing officer went for it because it is a legitimate explanation.  But you're going to have to have something to that extent.

Now, that kind of ties into number five, the type of the violation.  If it's speeding, you know, you have to have some sort of explanation on why you were speeding and why it won't happen again.  I have a lot of clients that now just keep their vehicle on cruise control, so there's not a possibility of speeding.  And that's an excellent idea, in general.They are not big fans, and they don't take as seriously, in my experience at least, the DMV doesn't, the red light camera violations because there's a lot of scrutiny on those red light cameras in general, so those don't get as much weight.  They still count as a point, but they don't get as much weight in those DMV hearings.  If those consist of your four violations, or if they're part of your four points or six points, eight points, whatever the case may be, that's going to be taken into consideration, and your odds of getting probation are even higher.

But then you're going to have to have some explanation as far as that as well.  And, generally, a lot of my clients, the explanation is just common sense that they're just going to be more careful now when they drive.  You know, this whole experience of getting a scare of getting their license taken away and things to that extent has just made them aware of how driving is a privilege and not a right.  Whether you believe that or not, that's what the DMV believes.  And they're going to be more careful behind the wheel.And then you can also argue the overall record.

Like I said, the points drop off after three years, but that doesn't mean you can't argue your overall record.  If you have 20 years of clean driving and suddenly, in the last year, you've just been getting ticket after ticket, and you've suddenly got 4 points in 12 months when the 20 years prior you had received no violations, then that's relevant.  That's a fact you can bring up.  If your overall record is horrible from when you first got your driver's license to now, even if the points have been brought up, have fallen off, they're going to take that into consideration.  But just because the points have been -- it's past the three years and the points no longer count against you, if you have an overall good record prior, that's something you can bring up.

So in summary, a lot of people don't realize -- the odds of success of these negligent operator hearings and obtaining probation, personally, I've never been unable to get probation on a negligent operator hearing - period.  I've had cases where I've lost negligent operator hearing when it was a violation of probation.  But, generally, it has to be pretty egregious.

The DMV generally will give you a chance in the beginning to get probation and then show that you are actually a conscientious driver and that, you know, you can maintain your license and not be a threat to anybody.But, in summary, it's going to be four more points in a year, six or more points in two years, eight or more points in three years.  That's going to trigger a negligent operator suspension, and they're just going to suspend it automatically.  They're not going to set up a hearing automatically.  You're going to get a letter in the mail saying you have a right to a hearing.  I believe it's 14 days you have to set that hearing, so you mail it in, fax it in, call.  I would do all three and make sure your records are accurate.  If you fax it in, get a confirmation, things to that extent, and set your hearing up.

At the actual hearing, you can always just try and get the suspension wiped away completely without probation.  And sometimes that is a good goal, especially if you have cases that you were eligible for traffic school on, and you decided not to do traffic school.

That's a little caveat as well.  If some of those points you were eligible for traffic school on and you just didn't do traffic school for whatever the reason may be, there might be a possibility to get you traffic school after the fact by writing a letter to the court requesting traffic school or whatever the case may be, if the court will let you on the calendar.  And you can actually get that point wiped away while you're waiting on your hearing.  So look at your points and see if you were eligible for traffic school.  There might be a way to get rid of one of the points before this hearing actually takes place.  Then you only have three points, and they will wipe away the suspension.

But probation is a good goal.  It keeps your license and allows you to drive.  You just can't make any more mistakes.  So you're going to go for probation, more than likely, or you're going to setting aside.  Whatever the case may be, here's what you're going to argue.  You're going to argue the miles.  They're going to want to know how many personal and professional miles you drive.  And, just so you know, the more miles you drive, the better your odds of getting on probation are.  Remorse and explanation: You've got to be remorseful, and you've got to have some explanation as to what happens and why it won't happen again.  You're overall driving record they're going to look at and then the type of the violation.  Now if you get two DUIs in a year, you're going to be dealing with a DUI license suspension anyway.  But serious violations like that, you get a hit and run and a DUI in a year, it doesn't matter how many miles you drive, they're not expecting people to get those kinds of violations.

So you're going to have to have a lot of remorse, or you're going to have to have an explanation as to what exactly is going on to lead to that.

But I can be reached at 800-978-0754.  If you have any questions, I offer free consultations.  If you need any further advice, you can call me any time.  I wish you luck.


San Diego DMV Attorney

About the Author

Michael Rehm

Michael Rehm has practiced law for over fifteen years. He has practiced exclusively Personal Injury and DUI/Criminal Defense.  While in law school, he served as an intern at the Sacramento County and Yolo County Public Defender's Office. After graduating law school, Mr. Rehm passed both the California and New York Bar Examinations on his first attempt. He then accepted a position at the Legal Aid Society-Criminal Defense Division in Brooklyn, NY representing the indigent in Brooklyn Criminal Court.  He has been in private practice for the last thirteen years. Education: University of California – San Diego Bachelors University of the Pacific – McGeorge School of Law Juris Doctorate License: California State Bar New York State Bar


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