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Most jurisdictions, however, permit counsel to subpoena witnesses to the hearing; certainly, due process and the right of confrontation, if not simple fair play, would seem to demand this. In most cases, the agency will issue civil subpoenas which counsel must have served. And it is this power of subpoena that can prove invaluable in representing the client before both the agency and the courts. Of course, the officer's testimony provides the opportunity to contest the issues before the agency. But it also provides another critical — and commonly overlooked — benefit: an otherwise unobtainable deposition of the officer in advance of the criminal trial.
Since the issues before the agency usually involve factual determinations of blood-alcohol concentration, circumstances of refusal and/or probable cause to stop, detain, and arrest the client for driving while intoxicated, the entire spectrum of the officer's expected trial testimony can be examined. And, as with a deposition, the hearing provides the opportunity to commit the officer to testimony that can later be used to impeach him in trial. Note: If the testimony at the hearing is not being taken down by a shorthand reporter or tape recorded, counsel should consider bringing his own tape recorder and later having it transcribed.
This de facto discovery opportunity is not limited to the officer. Counsel may wish to consider serving civil subpoenas on the individual responsible for maintaining and calibrating the breath machine, or the technician who conducted the blood or urine analysis.
The more conventional method of discovery in suspension hearings is usually by means of a formal or informal request for discovery, or through the submission of interrogatories. For an example, see the Respondent's Interrogatories to Petitioner at the end of the section.
The issues at the administrative hearing will commonly include the following:
If the hearing is for an administrative per se suspension:
If the suspension is for refusing to submit to chemical testing:
Although such legal issues as probable cause are usually in issue, some jurisdictions take the position that the license suspension hearing is a civil proceeding and that the exclusionary rule simply does not apply. In James v. Director of Revenue, 767 S.W.2d 604 (Mo. App. 1989), for example, the court dealt with the issue of the admissibility of a breath test result where a denial of counsel by the officer was alleged. The court simply held that "the exclusionary rule did not apply to civil proceedings." See also Green v. Director of Revenue, 745 S.W.2d 818 (Mo. App. 1988); Westendorf v. Department of Transportation, 400 N.W.2d 553 (Iowa 1987). Yet it would appear that the United States Supreme Court has held to the contrary. See Welsh v. Wisconsin, 466 U.S. 740 (1984).
Finally, an adverse determination by the hearing officer is usually subject to judicial review, commonly by filing a writ (e.g., mandamus or prohibition) in the appropriate court. There may, however, be a requirement that administrative remedies first be exhausted before relief can be obtained from the courts. If the motor vehicle department has provision for an administrative review, this will probably have to be pursued before filing the writ.
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Drunk Driving Guide Sections
License Suspension Hearing