Department of Motor Vehicle (DMV) hearing officers often use a template in declaring a defense expert’s opinion as “speculative” without explaining how it is speculative. Hearing officers are required to conduct a fair and impartial hearing under Gov’t Code § 11425.10. If it is clear that the hearing officer has a bias or prejudice, then a petition for disqualification can be made pursuant to Gov’t Code § 11425.40.
Sometimes, however, the hearing officer just does not understand the law. This is where a good recitation of the law can be helpful. It should be explained to the hearing officer what kinds of matter the expert can base his opinion on. For example, The court in In re Fields (1990) 51 Cal. 3d 1063 explained the information an expert can reasonably rely upon in forming an expert opinion:
“Under Evidence Code section 801, the opinion testimony of an expert may be based on matter personally perceived by or known to the expert and matter “made known” to the expert. “Matter,” as used in Evidence Code section 801 encompasses facts, data and intangibles such as the expert’s knowledge and experience. An expert’s opinion may be based on matter not admissible as evidence. (Evid. Code, Section 801, subd. (b); In re Fields (1990) 51 Cal. 3d 1063, 1070) However, an opinion is not admissible if it is based in whole or significant part on matter that (1) is not the type of matter that “reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates” or (2) “is precluded by law (from serving) as a basis for his opinion.”
The hearing officer should also be informed that an opinion by an expert does not need to be based upon evidence that has been introduced during the course of a trial. (People v. Conley (1968) 268 Cal.App.2d 47)
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