Here, we discuss a DMV hearing that is part of a procedure after a Los Angeles DUI arrest. After a Los Angeles DUI arrest, a police officer will give the arrested person at least 2 documents
- DMV notice of suspension printed on page 1 of DMV form DS 367
- Citation to Court.
The DMV form DS 367, is given instead of a California driver’s license that is confiscated by the police officer. The notice of suspension explains that the suspension (or revocation) will start in 30 days and informs the driver that he or she has a right to request an “Admin Per Se” (APS) DMV hearing to determine 3 issues:
- The legality of the police stop/contact
- The legality of arrest
- The blood alcohol level at the time of driving.
If there is an allegation of refusal to submit to a chemical test, the DMV hearing determines 4 somewhat different issues:
- The legality of the police stop/contact (same issue)
- The legality of arrest (same issue)
- Whether the driver was informed that his or her license would be suspended or revoked if he or she refused to submit to a chemical test
- Whether in fact, the driver failed to submit to a chemical test.
There are also “DUI probation violation” DMV hearings and “under the age of 21” APS DMV hearings.
WHAT HAPPENS DURING THE DMV HEARING
At the hearing, the DMV will usually present its case through documents.
Those documents can be as little as 2, which is 4 page DS 367 form and driving record. Often, however, the documents will also include
- A police report
- A traffic collision report (in case there was an accident)
- Print out of the breath strip (in case a breath sample to obtain alcohol level was received).
After the DMV presents its evidence, it will ask for objections. The standard objections are:
- Hearsay for any statements in the reports and DS 367 (but be mindful that hearsay is often allowed at the DMV hearings)
- Foundation because the introduction of any evidence requires “laying the foundation” for that evidence, which is providing sufficient reasons why this evidence is reliable.
Presently, the DMV does not subpoena witnesses, however, in the past, the DMV would often have a police officer, a crime lab person, or a civilian witness (if such exists in your case) to testify at the DMV hearing.
After the DMV finishes with a presentation of their case (usually through documents), it is your or your Los Angeles DUI Attorney’s turn. We recommend that you hire a DUI Attorney to defend your case in court and at the DMV.
PRESENTATION OF YOUR CASE
Because the burden of proof is on the DMV, you do not have to present any evidence and can proceed directly to argument. However, the burden of proof at a DMV hearing, as in any other civil case is only “preponderance of the evidence”, which means more likely than not. This is the lowest burden of proof in the United States legal system, which makes it easy for the DMV to win their case. Los Angeles DUI Attorney won many hearings just based on the argument, however, it is always best to talk to a lawyer before you decide to do so or even seek the help of a professional, such as Los Angeles DUI Attorney.
If you have decided that mere argument is not enough to win your DMV case, you must present some affirmative evidence of your innocence. This could be done through testimony of witnesses or through affidavit under Government Code Section 11514. The witnesses that are most commonly used would be
- A person who can verify a helpful drinking pattern or lack of any drinking
- You to dispute the police officer’s version of the events
- An expert witness.
GOVERNMENT CODE § 11514
This law allows the use of affidavits instead of live testimony. Observe:
(a) At any time 10 or more days prior to a hearing or a continued hearing, any party may mail or deliver to the opposing party a copy of any affidavit which he proposes to introduce in evidence, together with a notice as provided in subdivision (b). Unless the opposing party, within seven days after such mailing or delivery, mails or delivers to the proponent a request to cross-examine an affiant, his right to cross-examine such affiant is waived and the affidavit, if introduced in evidence, shall be given the same effect as if the affiant had testified orally. If an opportunity to cross-examine an affiant is not afforded after a request therefor is made as herein provided, the affidavit may be introduced in evidence but shall be given only the same effect as other hearsay evidence.
The accompanying affidavit of (here insert name of affiant) will be introduced as evidence at the hearing in (here insert title of proceeding). (Here insert name of affiant) will not be called to testify orally and you will not be entitled to question him unless you notify (here insert name of proponent or his attorney) at (here insert address) that you wish to cross-examine him. To be effective your request must be mailed or delivered to (here insert name of proponent or his attorney) on or before (here insert a date seven days after the date of mailing or delivering the affidavit to the opposing party).
Thus, if for some reason you don’t want the witness to testify live (maybe he is not good on a witness stand) or the witness is unavailable, as long as you give the affidavit to the DMV 10 days prior to the hearing and the DMV did not object, the affidavit becomes your evidence.
This is one clever way to have evidence introduced instead of live testimony at the DMV. For specific questions, please call Los Angeles Criminal Defense attorney and Los Angeles DUI Attorney at 323-464-6424.