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The Driver's Guide To DUI - Licence Suspension Hearing

It has now generally been recognized that a driver's license in today's society is more than just a privilege; at least one federal court has referred to it as a "liberty interest" protected by the Fourteenth Amendment (see §3.0). Whether considered a "liberty interest," a "property right," or a "privilege," it is widely accepted that this valuable document cannot be suspended or revoked without affording due process.

In most jurisdictions, due process will consist of an administrative hearing, commonly conducted by the department of motor vehicles. Such hearings differ radically from court proceedings, of course, and it is important that counsel representing a client before such an agency familiarize himself with the rules and procedures.

The hearing officer, for example, may not have any legal background and may not be entirely familiar with even those evidentiary issues that apply to such hearings. He may also be wearing two hats, acting as the "prosecutor" in presenting the evidence, then switching to his role as administrative judge to rule on objections and decide the outcome. This obvious conflict of interests can be particularly frustrating. And, in fact, some of those jurisdictions employing this system are attempting to separate the two functions. Nevertheless, California DUI attorneys should be prepared for a simple fact of life in many jurisdictions: The hearing may be conducted by the very agency that has suspended, or is trying to suspend, the license. As a result, there is a strong inclination on the part of the agency and its hearing personnel to achieve this purpose - to confirm that grounds for the suspension exist.

A second major difference from court proceedings is that hearsay is admissible, though it may not be sufficient of itself to support a finding. This often means that the agency's entire case will consist of the arresting officer's report and, possibly, a record of the blood, breath, or urine test; the officer may never appear to give testimony.

Thus, for example, the Supreme Court of Wyoming has held that the officer's "implied consent form" constitutes an acceptable exception to the hearsay rule as a "public record." Department of Revenue and Taxation v. Hill, 751 P.2d 351 (Wyo. 1988). Furthermore, such a document was sufficient of itself to support a license suspension. The court concluded that "the right to confrontation and due process is protected and sustained provided that the accused driver is afforded an opportunity at his election and expense to subpoena the arresting officer for cross-examination." 751 P. 2d at 357 (emphasis added). See also Gray v. Adduci, 532 N.E.2d 1268 (N.Y. 1988), permitting hearsay evidence to be the basis of an administrative license revocation; People v. Johnson, 542 N.E.2d 1226 (Ill. App. 1989), holding that the officer need not appear at the suspension hearing unless subpoenaed by the driver. But see Nieman v. Department of Transportation, 452 N.W.2d 203 (Iowa App. 1989), holding that an officer's signed implied consent form was hearsay and constituted insufficient grounds for proving probable cause to arrest.

It should again be noted that in most administrative hearings, hearsay is admissible but cannot be the basis for any finding of fact on a central issue, unless the evidence would be admissible over objection in court. The motor vehicle department often circumvents this by relying upon the "official documents" exception to the hearsay rule, by adopting the police report as an official document of the agency. Further, the agency will use governmental presumptions of authenticity and accuracy. The end result is that defense counsel may be confronted with an agency case consisting entirely of paper — and nothing to cross-examine.

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Drunk Driving Guide Sections


The Drunk Driving Laws

License Suspensions and Driving Records

License Suspension Hearing

Finding an Attorney

California's Courts and DMV

Detection and Investigation

Estimating Your Blood-Alcohol Level

The Breath Machine

Auto Insurance

Auto Insurance: California


Prevention and Help

Pilot's DUI's and the FAA

Driver's Guide to DUI Index