Many of my DUI clients are surprised to learn that there are two different processes following a DUI arrest; the court case and the DMV (also known as the Administrative Per Se or APS action).
The DMV’s only concern is whether the driver had a blood alcohol content of 0.08 percent or more or whether the driver refused a chemical test. If the DMV finds either or both, the driver’s license will be suspended. To ensure due process, the driver has the right to request an administrative hearing to challenge the DMV’s evidence.
However, unlike the court case, the DMV hearing does not ensure the safeguards that we normally associate with the court system and due process.
Imagine a criminal court case in which the defendant attends the hearing at the prosecutor’s office. During the hearing, prosecutor argues for a conviction. Immediately following the argument, the prosecutor throws on a robe, steps up to the judge’s bench, and rules on his own argument. This is exactly how the DMV hearing operates.
To start, the standard that the hearing officer must meet to win the hearing (and suspend a driver’s license) is much lower than that of a criminal case. A prosecutor in a criminal case must prove beyond a reasonable doubt that the driver was either 0.08 percent blood alcohol content or “under the influence.” A DMV hearing officer must only prove more likely than not that the driver was either a 0.08 percent blood alcohol content or that they refused the chemical test.
The DMV, the same agency which is trying to sustain the suspension, is the agency which conducts the hearing. The DMV hearing officer, who is a DMV employee, conducts the hearing. The hearing officer can object to the driver’s evidence. The hearing officer can rule on his own objection. Finally, the hearing officer decides if he or she wins. They almost always do.
Hearsay statements, which are generally excluded from court cases because the person making the statement cannot be cross examined, are admissible in DMV hearings. Most of the time, arresting officers are absent from DMV hearings. If a driver wishes to cross examine the arresting officer who wrote the report, he or she must subpoena the officer at his own cost. This includes paying for the officer’s salary for the time that they attend the hearing.
If you’re thinking that the hearing officer must have a background in law, you’d be wrong. According to the DMV’s employment eligibility requirements, a hearing officer need not even have a college degree.
If all of that wasn’t bad enough, since the APS is considered a civil matter, a driver does not have the right to an attorney’s assistance at the DMV hearing.