Improper notice of suspension by Cal. DMV

[Mindful1]

I've just received an Order of Reinstatement from the California DMV saying that my privilege to operate is reinstated. I must maintain proof of ins. coverage with DMV for 3 yrs, and I am on probation. I also must pay a $55 license reissue fee.

Problem: I didn't know my license was suspended. I remember getting a post office notice to pick up and sign for an item, but I never picked it up nor signed for anything. I still have my actual Driver's License card.

My last ticket was 16 months ago. I suspect that my license was suspended under VC Sec. 12810.5 [and Sec. 13800(d)] for violation points, consisting of one point speeding violations, including out-of-state violations.

I believe that Sec. 13950 is applicable, in that when the DMV proposes to suspend a license, it must give notice and an opportunity to be heard before taking action. Since I never signed a receipt for delivery of a notice, the requirements for notice under Sec. 13106 were not met. I've had the same address for about 1.5 years.

What's the best way to respond to the DMV? Should I point out the above facts and demand that all of this be removed from my record since their action was invalid without proper notice? Or be nice and ask for a hearing?

 

[REParker819]

Why did you not go pick up the notice at the post office?? Hello? You should be grateful they sent it to you certified. Here in DE we send them in the regular mail. Its not their problem you couldnt be "bothered" to pick something up that was important enough to be sent certified! As for the section code, they did give you notice and an opportunity to be heard. You just refused to comply.

 

[I AM ALWAYS LIABLE]

My response:

I couldn't have said it better myself.

What our writer doesn't realize is that, by California law, "notice" is deemed complete upon a sender's deposit in a mailbox. It has nothing to do with actual receipt by the intended recipient. As long as the DMV had his address, and dropped the Notice into a mailbox, it's a done deal.

IAAL

[Edited by I AM ALWAYS LIABLE on 12-10-2000 at 06:52 PM]

 

[REParker819]

WHooohooo! I finally said something you agreed with!!! LOL!

 

[Mindful1]

I certainly appreciate REParker819 and I AM ALWAYS LIABLE for making the effort to write answers to my posting. The problem is that both answers are inconsistent with the law.

Section 13106 of the California Vehicle Code says, "When the privilege of a person to operate a motor vehicle is suspended or revoked, the department shall notify the person by certified mail, return receipt requested, of the action taken and of the effective date thereof, except for those persons personally given notice by the department or a court, by a peace officer pursuant to Section 13388 or 13382, or otherwise pursuant to this code. It shall be conclusively presumed that a person has knowledge of the suspension or revocation if notice has been sent by certified mail by the department pursuant to this section to the most recent address reported to the department pursuant to Section 14600, and the return receipt has been signed and returned to the department."

The same section also says the department may use alternative methods. I read this section as saying that the DMV must meet certain requirements before notice of suspension is effectively given.

To clarify, it is only in hindsight that I assume that the notice from the post office was for the DMV's suspension notice. I didn't get to the post office because I work when the local post office branch is open. I wasn't expecting anything important, and I knew that anyone who wanted to reach me could have easily done so via other methods.

Now that you know that the California vehicle code specifically requires a signed receipt when it sends a suspension notice via certified mail, do your answers stand as is?

 

[REParker819]

Yes, I still think you were wrong not to go pick up the letter. Your post office is not open on Saturdays? You dont have a lunch break? Please. You knew that it was for the accumulation of points. There is not a single doubt in my mind that you knew that. You deserved to get suspended. Why dont you try taking the brick off of the gas pedal and slow down? Then you would not have these problems. Accumulation of points is a big deal.

 

[Xoro]

Proof of service

If you do anything to get your hearing you may cause a
lengthing of your penalty. Now your time started when
they sent you the notice and will end accordingly. If
you get your hearing you may cause a suspention of your
suspention, resulting in delaying reinstating your driving
priviledges. If you have a hearing (which you are likely
to get just for the asking) do you have any defence?

 

[I AM ALWAYS LIABLE]

My further response:

Your quoted California Vehicle Code says clearly, in relevant part:

"It shall be conclusively presumed that a person has knowledge of the suspension or revocation if notice has been sent by certified mail by the department pursuant to this section to the most recent address . . ."

It says NOTHING about "signing" the return receipt. The DMV did their job and "it's conclusive" . . . "if it has been sent by certified mail". Under the law, it was send and it was delivered.

But, I guess you need to see the actual law - - so, here it is:

Service is complete when the notice is deposited in the mail, not when it is received. [Silver v. McNamee (1999) 69 Cal.App.4th 269, 283, 81 Cal.Rptr.2d 445, 453]

Actual notice not required: As long as the sender has complied with the statutory requirements for service by mail, it need not be proved that the [intended recipient] actually received the mailed notice. [Silver v. McNamee, supra, 69 Cal.App.4th at 285, 81 Cal.Rptr.2d at 455--certified mail notice effective although deliberately refused by intended recipient]

The word "May", in the law, is discretionary. As long as the DMV used one of the required methods (and they did), their job is done and complete.

IAAL

[Edited by I AM ALWAYS LIABLE on 12-10-2000 at 11:22 PM]

 

[Mindful1]

Thank you for your response, Xoro, but I think you misunderstand the current status, or I didn't make myself clear enough. At this point, DMV has initiated the suspension, the suspension period is over, and they have sent me a letter saying that my driving privileges are reinstated. However, I am on probation and don't know exactly what that means, and I must maintain proof of insurance with the DMV, which is not a problem. The DMV letter also assumes that I've surrendered my license, which never happened.

I was hoping that someone with specific familiarity with California law could tell me whether the DMV's suspension action met the requirements of California law. If it did not, I don't want it on my record. If it did, then I'll live with the consequences.

I was also hoping that someone with specific familiarity with DMV procedures could tell me whether a letter spelling out the facts might be enough to initiate the action I desire, or whether setting aside the suspension could only be accomplished by means of a hearing. There is no chance of suspension being reinstated, since the conditions required for license suspension no longer exist. Without getting into the technical specifics here, another possible question for a hearing would be the DMV's exercise of discretion in assigning violation points to certain out-of-state violations. Until I see the specifics of how they made these decisions, it's a question in my mind. It may well be that the issue of points assignments is not at issue, but it remains a question until I know more.

 

[Mindful1]

My further response:

Your quoted California vehicle says clearly:

"It shall be conclusively presumed that a person has knowledge of the suspension or revocation if notice has been sent by certified mail by the department pursuant to this section to the most recent address . . ."

It says NOTHING about "signing" the return receipt. The DMV did their job and "it's conclusive" . . . "if it has been sent by certified mail". Under the law, it was send and it was delivered.

But, I guess you need to see the actual law - - so, here it is:

Service is complete when the notice is deposited in the mail, not when it is received. [Silver v. McNamee (1999) 69 Cal.App.4th 269, 283, 81 Cal.Rptr.2d 445, 453]

Actual notice not required: As long as the sender has complied with the statutory requirements for service by mail, it need not be proved that the [intended recipient] actually received the mailed notice. [Silver v. McNamee, supra, 69 Cal.App.4th at 285, 81 Cal.Rptr.2d at 455--certified mail notice effective although deliberately refused by intended recipient]

The word "May", in the law, is discretionary. As long as the DMV used one of the required methods (and they did), their job is done and complete.

IAAL

[Edited by I AM ALWAYS LIABLE on 12-10-2000 at 11:20 PM]

Thanks for your response, IAAL. But why did you say that "It says NOTHING about 'signing' the return receipt" when you purposely excluded the following clause from the section I quoted: "and the return receipt has been signed and returned to the department."

Isn't that saying something about 'signing'?

Another salient point, I think, is that every alternative method of serving notice that's mentioned in the vehicle code involves getting a signature from the recipient.

Perhaps the distinction is this, if I follow your basic argument: The DMV met the statutory requirement for giving notice and for giving me an opportunity to request a hearing. The code makes it clear that both of these are required before the suspension can take effect. But without the signed return receipt, the DMV does not have evidence that I have knowledge of the suspension, as per the specific language of section 13106. My question is, then, what is the purpose of this language in the code if it doesn't affect the dual requirement of notice and opportunity to be heard?

 

[I AM ALWAYS LIABLE]

My further response:

Your quoted California vehicle says clearly:

"It shall be conclusively presumed that a person has knowledge of the suspension or revocation if notice has been sent by certified mail by the department pursuant to this section to the most recent address . . ."

It says NOTHING about "signing" the return receipt. The DMV did their job and "it's conclusive" . . . "if it has been sent by certified mail". Under the law, it was send and it was delivered.

But, I guess you need to see the actual law - - so, here it is:

Service is complete when the notice is deposited in the mail, not when it is received. [Silver v. McNamee (1999) 69 Cal.App.4th 269, 283, 81 Cal.Rptr.2d 445, 453]

Actual notice not required: As long as the sender has complied with the statutory requirements for service by mail, it need not be proved that the [intended recipient] actually received the mailed notice. [Silver v. McNamee, supra, 69 Cal.App.4th at 285, 81 Cal.Rptr.2d at 455--certified mail notice effective although deliberately refused by intended recipient]

The word "May", in the law, is discretionary. As long as the DMV used one of the required methods (and they did), their job is done and complete.

IAAL

[Edited by I AM ALWAYS LIABLE on 12-10-2000 at 11:20 PM]

Thanks for your response, IAAL. But why did you say that "It says NOTHING about 'signing' the return receipt" when you purposely excluded the following clause from the section I quoted: "and the return receipt has been signed and returned to the department."

Isn't that saying something about 'signing'?

Another salient point, I think, is that every alternative method of serving notice that's mentioned in the vehicle code involves getting a signature from the recipient.

Perhaps the distinction is this, if I follow your basic argument: The DMV met the statutory requirement for giving notice and for giving me an opportunity to request a hearing. The code makes it clear that both of these are required before the suspension can take effect. But without the signed return receipt, the DMV does not have evidence that I have knowledge of the suspension, as per the specific language of section 13106. My question is, then, what is the purpose of this language in the code if it doesn't affect the dual requirement of notice and opportunity to be heard?

My response:

You know, it's a rarity for me, but I have to admit . . .

I WAS ABSOLUTELY WRONG !! My sincere apologies to you. You were correct and I didn't read the rest of the code.

So, without a signature, they HAD to use one of the other methods.

You may, in fact, have a good argument - - unless there were other time limits in place, now that you're on probation.

Again, my most heartfelt apologies to you for your research well done, and your arguments well made.

IAAL