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Professional Licensing Defense & Criminal Defense

DMV Negligent Driver

“The Negligent Driver and Intervention by the DMV” TRIAL BAR NEWS, Journal of the Consumer Attorneys of San Diego (February 2006)

By
Nicole D. Tee

After receiving a traffic ticket,  an initial reaction may be to just pay the fine and move on – who has time to deal with long lines at court or yet the dreaded traffic school?  But, hold on!  The consequences of a traffic ticket can be more than an inconvenience, it may trigger serious DMV ramifications, eventually leading to the loss of the driver’s license.

The California DMV intervenes against drivers who accumulate multiple moving violations and/or are involved in an excessive number of collisions.  Vehicle Code §12810 requires the department to assign “points”  to any conviction “involving the safe operation of a motor vehicle upon the highway” (ordinary traffic infractions).  Two points are assigned for misdemeanor traffic offenses (i.e., driving under the influence, reckless driving, and hit and run).   (For point assignments related to specific convictions, see www.dmv.ca.gov/dl/vioptct.htm. A collision where the driver is deemed at fault is counted as one point.  Points from out-of-state convictions may also affect a driver’s actual point count.  A driver may be deemed a negligent operator when he or she accumulates too many points within a specified time.  Each of the following point counts will trigger a suspension (with a right to a hearing) based on a statutory finding of prima facie negligence:

  • 4 points within 12 months
  • 6 points within 24 months
  • 8 points within 36 months

The DMV’s policy is to issue a “Notice of Intent to Suspend” when drivers are within one point of these point totals.

Commercial Drivers Are Held to a Different Standard

The DMV assesses higher point amount for Class A or B license holders with certificates, such as ambulance, school bus, or hazardous materials (“Commercial Drivers”).   A traffic conviction is generally assessed either one or two points.  Vehicle Code § 12810.5 (b)(2).  Section §12810, multiplies the point by 1.5 for Commercial Drivers whose offense was committed while driving a commercial vehicle.  For example, a conviction of Vehicle Code §22348 (a), speeding, is a garden variety one point violation.   However, a Commercial Driver  driving a commercial vehicle is assessed 1 ½ points for the same offense.

However,  to recognize their increased driving time and miles, Commercial Drivers are allowed to accumulate a higher point count within the specified time periods before they are presumed negligent.  Vehicle Code §12810.5.  Commercial drivers are considered prima facie negligent operators if they have the following point count accumulated on their driving record:

  • 6 points in 12 months
  • 8 points in 24 months
  • 10 points in 36 months
  • A Single Fatal Or Serious Injury Accident May Result In a “Negligent Operator” Determination

The DMV may take a negligent operator action when the driver is involved in a single fatal or injury accident, even though the driver may not have accumulated negligent operator points as described above. Vehicle Code Section §13800 (a) authorizes the department to investigate fatal and injury accidents to determine if the driving privilege should be revoked, suspended, restricted or the driver placed on probation.  The DMV may order a suspension even if it determines that the driver was not grossly negligent, including cases involving mere misjudgment or inattention.

The Negligent Operator Treatment System (NOTS) Hearing

The driver is presumed to be a prima facie negligent operator unless he or she rebuts or contradicts the DMV’s evidence.  Due process dictates that the driver is entitled to a hearing to contest the DMV’s intended suspension of his or her driver’s license.  This hearing is called a “Negligent Operator Treatment System hearing” or a “NOTS” hearing.”  If the driver fails to challenge the negligent operator classification,  the driver potentially may lose his or her license for up to a year, if not more, depending on the driver’s driving pattern during a probationary period.  The driver has 14 days from the mailing date (or 10 days from a personal service date) of the DMV’s Notice to Suspend the Drivers License to request a hearing.

At a NOTS hearing, a driver has the following rights: (1) to be represented by an attorney, at the driver’s expense; (2) to review evidence and cross-examine any witness for the DMV; (3) to present evidence and relevant witnesses; and (4) to testify on his or her own behalf.

Unlike the DMV hearings discussed in the past two CASD articles, a driver’s individual circumstances are relevant, and the need for his or her license such as professional or medical necessity may be considered by the hearing officer at a NOTS hearing.   Vehicle Code §12810.5 (a) requires the hearing officer to consider mitigation when assessing the driver’s degree of negligence and whether to sustain a driver’s license suspension.  A critical mitigating argument can be that the driver has accumulated a high total mileage for work, compared to an “average” driver with the same point total who drives a fewer miles in the same time period.  An attorney should also be prepared to present evidence of hardship relating to the loss of license.  Examples of hardship are that the driver is a major contributor to the family income and/or there is no alternative mode of transportation.

After a DMV hearing,  the hearing officer can implement a range of administrative actions from “no action,” probation, restriction to a suspension or even revocation.  If the driver disagrees with the decision, a departmental review can be requested within 15 days from the written decision or seek review in the Superior Court by way of petition for Writ of Mandamus within 30 days or up to 94 days from the written decision depending on the particular circumstances of the case.

Conclusion

The NOTS hearing is an opportunity to clarify or modify a driver’s DMV record to avoid being deemed a negligent operator and losing his or her driving privileges.  NOTS hearings, unlike the other hearings discussed in this series of articles relating to the DMV, allow for more creativity to preserve your client’s driving privilege.  The Vehicle Code allows the hearing officer to consider human factors when deciding the license status of a driver.  The persuasive power of a good argument describing the client’s individual circumstances can affect the outcome of a hearing.

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Nicole Tee Irmer's focus areas include a sophisticated criminal defense practice in both state and federal courts, and administrative legal matters including professional licensing issues as well as driver's licensing matters concerning the Department of Motor Vehicles.

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