Steps To Enforce A DMV Subpoena
Enforcing a Department of Motor Vehicles subpoena is among the most difficult tasks a motorist undertakes in the DMV hearing process. The difficulty lies in the fact that enforcement requires the DMV hearing officer to file a superior court lawsuit against the witness — a cumbersome process the hearing officer will do almost anything to avoid. Your hearing officer may (unlawfully) refuse to enforce the subpoena and suspend your license anyway, setting you up for a writ with attorney’s fees. Accordingly, everything in your process must be pitch-perfect so that your writ and fees are granted.
First, make sure that you can defend the subpoena itself. Is the witness or document necessary to your defense? Is that witness/document the only way to prove what you’re trying to prove with it? Are document requests narrowly tailored to obtain only what’s really needed or do they seek hundreds of pages of documents (a “kitchen sink” approach)? A judge is unlikely to issue a writ, much less grant attorney’s fees, if your subpoena looks like a fishing expedition.
Second, be accommodating if the witness needs a continuance. If DMV has stayed the automatic suspension of your license (meaning you can drive during the hearing process), you will be hard-pressed to explain to a judge later why you didn’t agree to continue the DMV hearing to a date more convenient for the witness. If, on the other hand, you accommodated the witness with five continuances, and he or she still refused to honor the subpoena, you will look like the reasonable one in front of the judge.
Third, keep any correspondence from the witness or notes of telephone calls from him or her. These notes will ultimately be your record of what happened.
Fourth, create a record at DMV by verbally recounting those notes on the record and submitting a copy of any notes to the hearing officer when you finally get to the DMV hearing and the witness fails to appear. It won’t be enough to just say, “I sent a subpoena.”
Fifth, ask the hearing officer to “compel the attendance of the witness pursuant to Vehicle Code section 3050.2 and Government Code section 11187.” State on the record why the witness or document is essential to your defense to the case.
Finally, if the hearing officer refuses to enforce the subpoena, make an immediate motion for a set aside of the automatic suspension on the ground that you cannot proceed without the necessary witness or document. State on the record that the hearing may not proceed without the witness. While enforcing a subpoena is discretionary on the part of hearing officers (meaning they don’t have to do it), setting aside a suspension in such a case is not. That means the hearing officer may choose not to enforce your subpoena, but if he or she makes that choice, he or she must set aside the suspension and dismiss the administrative action against your license. Warn the hearing officer that if he or she suspends you after refusing to secure a necessary witness or document, you will seek attorney’s fees under Government Code section 800 for arbitrary and capricious conduct.
To maximize your chances of beating DMV by enforcing subpoenas and in other ways, work with an experienced attorney. The Law Office of Rodney Gould in Sherman Oaks has developed a strong focus in this area known as Beat DMV. Schedule a consultation to discuss your case by calling 818-570-6989 or sending an email inquiry.
The Fine Print
Section 3050.2 governs the enforcement of subpoenas and discovery at a DMV hearing. That section in turn incorporates the general enforcement mechanism of the Administrative Procedures Act codified at Government Code section 11180 et seq, particularly Government Code section 11187. Enforcing a subpoena requires the director of DMV, acting through a hearing officer, to file a lawsuit in superior court forcing the witness to appear and explain to a judge why he or she failed to honor the subpoena. The motorist’s interaction will be almost exclusively with the hearing officer or with the driver safety manager when the hearing officer (almost) inevitably refuses to enforce the subpoena.
Government Code section 800 requires DMV to pay a motorist’s attorney’s fees if it was “arbitrary and capricious” in its decisions. Because the end game of these subpoena battles is a writ proceeding seeking attorney’s fees, every step should be taken with the goal of showing arbitrary and capricious conduct.
GC 800, GC 11180, GC 11187, VC 3050.2