Case History: California Drivers Advocates was engaged to a represent a client who was being accused of cheating during a written test while attempting to add an endorsement to his commercial driver license. Our 41 year old client had been a commercial truck driver for more than 15 years and maintained a remarkably clean driving record. He is a “short-haul” driver transporting freight in Los Angeles, Ventura, and Santa Barbara Counties.
A change in his employer’s business plan created a situation where our client was required to begin hauling hazardous materials. This required that he pass an entirely new series of written tests at the DMV in order to add a “Haz Mat” endorsement to his driver license. His employer gave him a period of six months to earn the endorsement or face termination.
After a period of study, our client entered the DMV Field Office in Oxnard in September 2015, to challenge the required written tests. Of the seven required tests, our client failed three. He took several months to study and attended a truck driving school to prepare himself to challenge the remaining three tests. In March 2016, our client returned to the Oxnard DMV Field Office to take the remaining three tests.
Knowing that he would have a long wait time before testing, our client took his study materials with him and was studying while he waited. When his number was called, our client placed his study material into a large envelope, sealed the envelope and then placed the envelope on a clip board. He entered the testing area with his study materials in his hands and placed it on the desk in front of the computer monitor. The computer system he used for testing displayed incorrect answers as the test proceeded. Whenever the computer alerted him to a question he answered incorrectly, he would make a note on piece of paper so that he could study those items later.
Our client had successfully passed the first of three tests and was beginning the second test when a security guard saw him making notes. When the security guard asked him what he was doing, our client honestly answered that he was making notes of incorrect answers so he could study them later. The security guard told our client that was not permitted and seized his note pad and his pencil. As the security guard walked away, he was directed back to our client by a floor supervisor for the DMV. The supervisor directed the security guard to also seize the yellow envelope and clip board. When the security guard collected those items, the envelope was still sealed and there were no notations on the outside. The DMV Floor Supervisor opened the envelope, found the study material, and immediately accused our client of cheating on the test. He was instructed to leave and was only told that he would have to return on a different day to finish the testing.
Two days later, our client’s supervisor called him into the office and explained that the DMV was suspending/revoking his commercial driver license for Fraudulent Activity. Our client’s supervisor was crystal clear in the fact that, if he lost his driver license, he would lose his job…. Period!
DMV’s Position: The California DMV’s position was crystal clear. If a driver is involved in fraudulent activity while applying for a driver license or the renewal of an existing driver license, the DMV will act immediately to refuse, suspend or revoke the privilege.
It is the DMV’s position that a person who cheats during a written examination must not possess the requisite skills to drive and that it would be dangerous to allow an unqualified driver to operate a motor vehicle.
The California Vehicle Code determines that a person who commits an act of fraud shall not be issued a driver license for one year.
Our Defense: California Drivers Advocates constructed a defense around the reality of who our client was and what had actually occurred. At the age of 41, our client had been safely driving “big-rigs” in Southern California for more than 15 years. He had no moving violations on his record and the only accident on his record was not his fault. Clearly, he was a properly licensed commercial driver with many years of experience who took his job and safe driving quite seriously.
There were two critical elements in our client’s case:
- Was there a preponderance of evidence to demonstrate that our client had cheated while taking a written test?
- Did the DMV have the authority to suspend or revoke a pre-existing and valid driver license when the driver was simply testing to add an endorsement?
First of all, it was abundantly clear that our client had not been cheating. Although he was in possession of study material during the testing sequence, that material was sealed in an envelope and the top of the envelope was also held closed by the clip on a clipboard. Our client was not transferring answers from study material into the test. He was making notations of incorrectly answered questions so that he could study those items later. During the Fraudulent Activity Hearing, we cross-examined the DMV’s Floor Supervisor extensively. Fortunately, she was honest and it became abundantly clear that she had no real proof that our client had done anything fraudulent.
Secondly, in the case of Wang v. DMV the California Supreme Court ruled that the DMV had no authority to suspend or revoke a pre-existing Class “C” driver license when the driver was caught cheating while trying to upgrade to a Class “A” driver license. Such was the case with our client. His Commercial Class “A” Driver license was pre-existing and had been valid for more than 15 years. In testing to add a “Haz Mat” endorsement, he was not being tested for the original issuance of his Commercial License or to renew an expiring Commercial License.
While our client clearly made a poor choice in entering the testing area with his study materials in hand, he did nothing to refer to that material during the testing sequence. He did not cheat on his test and the DMV had no authority to suspend or revoke the pre-existing license.
Outcome: At the conclusion of the Fraudulent Activity Hearing, the DMV Hearing Officer took the matter under submission. Four days later, we received the Hearing Officer’s written decision to restore our client to full driving privileges. The Hearing Officer ordered a complete “Set Aside” of the allegation and allowed our client to retest. Clearly the DMV concluded that our client was not only qualified to drive, but that there was no criminal or fraudulent intent in the case.
Unfortunately, our client was forced to begin the endorsement process all over again; however, he challenged the seven tests associated with upgrading to add the “Haz Mat” endorsement. He passed all tests with flying colors. He remains employed and is able to provide for his children.
Call CDA Today. Let Us Go to Work on Your Case. The DMV Defense Experts at California Drivers Advocates have been fighting and winning DMV administrative hearings for years. We excel at every type of administrative hearing handled by the DMV and have a history of winning. Call us and let us get you back on the road.