DUI & DMV:  

Suspension of Driver’s License: 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 breath test results. The document is signed under oath by the arresting officer and, if applicable, the breath machine 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 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 that of the right to an in-person hearing. If a telephone hearing has been set, counsel might wish to contact the Driver Safety office and reschedule it for an in-person hearing—at least, if counsel intends to subpoena the officer.

On being retained by a client, counsel should immediately ensure that a hearing has been requested within the 10 days. If it has not yet been done, counsel should contact the appropriate field office and make the request. If the deadline is not met, the Department may nevertheless grant a hearing if good cause is shown; a written request setting forth the reasons for the delay is the preferred method.

What if a requested hearing cannot be scheduled before the 30-day temporary license expires? Vehicle Code § 13558(d) and (e) provide that counsel 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 counsel 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 and counsel, 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 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 department—with 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 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 rule 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 printout—one "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."

Don’t just roll over and loose your driver’s license, hire Mr. McDonald to fight for you. He is experienced and knowledgeable which increases your chance of winning. Most people simply do not make any effort to request a hearing. If you hire Mr. McDonald to represent you for your driving under the influence, and if you retain the office within the ten (10) day period, his office automatically contacts the DMV and schedules your hearing.

Finally, meet with your attorney as soon as possible. When you meet with Mr. McDonald, be completely honest with your version of events. Tell us about any past criminal record or witness that might help or hurt your case. Remember that you are the most important part of your defense team.

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