Beat DMV Can Get You A Stay Of Suspension
One of the first things a qualified DMV attorney will do in a writ of mandate case is file an ex parte motion to stay the suspension while the case is litigated. If you retain us early, we can usually have the stay in place before the suspension takes effect, ensuring that you never lose your right to drive. You can drive on a stay for as long as the writ action goes on.
The Fine Print
Code of Civil Procedure Section 1094.5 authorizes a judge presiding over an administrative writ of mandate case to stay the driver’s license suspension until the writ case is decided. (While the common law writ procedure under CCP Section 1085 — the process used for writs challenging decisions by the Mandatory Actions Unit — does not contain a similar stay provision, it is routinely assumed the process is the same.)
We ask for a stay in almost all of the cases we handle. Many judges feel it is only fair that you not be suspended during the time it takes you to prove the suspension was wrong; these judges always grant stays. Indeed, the only statutory justification to deny a stay is if the court is satisfied that it is against the public interest. (Section 1094.5(g).) Some judges, on the other hand, believe it is always against the public interest to allow someone accused of DUI to drive; these judges routinely deny every stay. That is why it is imperative your DMV lawyer know the judges who hear DMV writs and knows how to maximize your chances of being assigned to a favorable judge.
In addition to showing the judge why we think we will win the case on the merits, we also demonstrate in concrete terms the disastrous impact a suspension will have on our client’s life if it is not stayed during the proceeding. We work closely with our clients at this stage of the process, ferreting out all the facts that will maximize the chance of a stay.
Because the stay is usually in place until the judge rules at the final writ of mandate hearing, a stay provides an avenue of relief to a motorist whose writ case is weak. For example, if we are not supremely confident in winning the ultimate writ, we might obtain a stay and simply delay the final hearing to help our client.
CCP 1085, CCP 1094.5