The DMV's DUI License Suspension Hearing
After confiscating the arrestee's license and serving him or her with an order of suspension, the arresting officer will complete a document entitled "Officer's Statement-Admin Per Se". This one-page form sets forth the bare minimum facts necessary for the DMV to suspend the license: observing of driving (or statutory exceptions), probable cause, and blood alcohol test results. The document is signed under oath by the arresting officer and, if applicable, the breathalyzer operator. It is then supposed to be forwarded to the Department "immediately" "on or before the end of the fifth ordinary business day following the arrest." [Veh C § 23158.5(c)] In fact, however, this deadline is routinely ignored with no consequences.
The individual then has 10 days within which to contact a local branch of the DMV's Office of Driver Safety and request a license suspension hearing.
Employees at these offices "encourage" those requesting a hearing to accept one conducted by telephone; often, they will simply arrange a telephone hearing without advising the applicant of the right to an in-person hearing. If a telephone hearing has been set, your DUI defense lawyer might wish to contact the Driver Safety office and reschedule it for an in-person hearingat least, if he or she intends to subpoena the officer as a witness.
On being retained by a client, the DUI law firm should immediately ensure that a hearing has been requested within the 10 days. If it has not yet been done, the DUI lawyer should contact the appropriate field office and make the request.
What if a requested hearing cannot be scheduled before the 30-day temporary license expires? Vehicle Code § 13558(d) and (e) provide that your DUI lawyer can obtain a stay of the suspension if the request for a hearing was made within 10 days of the notice.
The department will conduct an "administrative review" of the case to ensure that the evidence, that is, the arresting officer's paperwork, complies with the requirements for an administrative suspension. In fact, these reviews are usually little more than rote box-checking by DMV clerical personnel. Quite often, such legal issues as probable cause and commission of the offense in the officer's presence are overlooked.
Once the review has been completed and the request by the licensee for a hearing made, a hearing date will be set. This can usually be arranged for a date and time mutually agreed upon by the DUI attorney and the department.
Note: As mentioned previously, if the department is unable to set a hearing within 30 days of the arrest (and this is increasingly common) and the request was originally made within 10 days of the arrest, an extension of the temporary license (a "stay") can be obtained. Although the stay may be for a period of time (30 or 60 days), it can be renewed; the licensee is entitled to a stay until a decision is rendered by the hearing officer.
The hearing will be conducted at a place designated by the department "as close as practicable to the place where the arrest occurred, unless the parties agree to a different location." [Veh C § 13558(b)] If the Driver Safety office nearest the arrest location is inconvenient to the client or his DUI attorney, a request for a transfer to a closer office can be made. The department will often grant such a request if they will not need the live testimony of the officer or other witness; of course, if counsel plans to subpoena the officer, witness fees will increase.
The in-person DUI license suspension hearing will usually be held in a small office room at one of the Driver Safety field offices. The hearing officer will sit at a desk; counsel, the client (if present) and any witness will sit at chairs facing the desk. A tape recorder will be present on the desk.
The hearing officer is, of course, an employee of the departmentwith little or no legal training. The most critical characteristic of this individual, however, is that the hearing officer wears two hats: both prosecutor and judge. The hearing officer will present the department's case, conduct direct examination of any department witnesses, and cross-examine the DUI client and defense witnesses. The hearing officer will also rule on all objections and determine the admissibility of all evidence. After the hearing officer has finished doing his or her best to sustain the license suspension, the officer will then decide whether he or she wins or you win. This dual role has been upheld in the administrative context.
Not only are DMV hearing officers permitted to act in the dual capacity of prosecutor and judge, but they are apparently vested with the inherent expertise as well. In Vinson v. Snyder 75 Cal.App.4th 182, 89 Cal.Rptr.2d 44 (5th Dist.1999), the driver appealed a suspension on the grounds that the only evidence of a prior conviction consisted of a computer printoutone "interpreted" by the hearing officer, without any showing of expertise, and offered/accepted by him as the sole evidence of that prior. The court simply referred to Gov C § 11425.50(c), which provides that "The presiding officer's experience, technical competence and specialized knowledge may be used in evaluating evidence"and that the "statute does not require the hearing officer to document his or her expertise in reading departmental documents either orally or in writing." The court concluded that, "Adoption of such a requirement would add a time-consuming and essentially meaningless hoop through which a hearing officer must jump before he or she can render a decision."
Due process in California concerning DUI law and the DMV, apparently, centers upon a DMV employee who acts as prosecutor, judge and, now, expert-at-large.
As with judges, the quality and attitudes of hearing officers vary widely. Thus, counsel should be aware of a little-used provision for exercising a challenge for cause against any hearing officer:
Any party may request the disqualification of any administrative law judge or agency member by filing an affidavit, prior to the taking of evidence at a hearing, stating with particularity the grounds upon which it is claimed that a fair and impartial hearing cannot be accorded, [Gov C § 11512(c)].
Although that statute permits the actual hearing officer being challenged to decide whether grounds exist, the department has adopted a policy that a fellow worker at the Driver Safety office should determine the issue.
Thus, clearly, the deck is stacked; there is little chance of a fair and impartial hearing. The primary (and unstated) purpose of the hearing is to sustain the suspension. Nevertheless, an experienced DUI defense attorney has a good chance of winning reinstatement of the license. Furthermore, armed with a tape recording of the hearing, good DUI lawyers have the ammunition with which to (1) file a writ with the superior court and (2) impeach the officer as witness at trial.