WRITS IN GENERAL
THE BIBLE ON WRITSDMV Writs--a DMV writ (writ of administrative mandamus) is another word for an order. A writ is an option used to try and overturn a DMV suspension. It is essentially asking a superior court judge to order DMV to reverse their decision.
A DMV Writ is begun by filing a petition with the superior court (and paying the filing fees). The next step is to file a motion for a stay of the license suspension until the decision on the writ. In California, the law permits a stayof a DMV decision pending the outcome of the writ challenging that decision. The law permits the stay,but does not require it. It is important to show the court the necessity of having a license: for instance driving to work, school, picking up children, etc. The court can deny the stayif it will not be in the public's best interest to grant it. For instance, if the driver was contesting a 4th offense DUI or other factors that showed a severe danger to the public if driving is continued. Once the stay is granted and the order is signed by the court, it must be served on DMV. It is also a good idea for the driver to carry a copy of this in one's car.
The writ itself involves obtaining a transcript of the license suspension proceedings from the DMV. This can be costly but there are ways of obtaining the transcripts for free since the DMV will have to file their own paperwork and submit a transcript as well. Once the transcript is obtained, which provides a record of the proceedings for the court to consider, legal argument is made explaining to the court where the DMV erred and why the court should grant the writ.
The next step is to either accept a potential offer of settlement from the DMV or, absent such offer, arguing the writ in court. If the driver wins in court, he can request that the DMV pay his attorney fees. If the court decides in favor of DMV, the driver may still appeal the decision to a higher court.
Writ of Habeas Corpus(criminal case writ)--the writ of habeas corpus provides relief from unlawful custody when direct appeal is inadequate. A writ is used because an appeal is inadequate either because the facts needed to resolve the problems don't appear in the appellate record or because the time limit for appeal has passed. The writ allows facts outside the record to be brought in and there is no specific time frame that a writ must be brought. One of the main reasons for bringing a writ is based on ineffective assistance of counsel.
Requirements for a writ of habeas corpus include that:
- The petitioner be in custody at the time the writ is filed;
- All claims must be presented in a single, timely petition, successive petitions will be summarily denied;
- Habeas corpus can not be used to raise issues that could have been but were not raised on appeal, nor to seek a second determination of issues raised on appeal and rejected;
- There is no specific time limit for a writ of habeas corpus. The general limitation is that habeas relief must be sought in a "timely fashion."