leveraging a DMV "set aside" , for momentum in court

[x_x_x]

What is the name of your state? CA

Can a transcript be admitted as evidence, or as sworn testimony?

This may be a valuable piece of information for the defense.

 

[FlyingRon]

Transcript of what?
Used in what sort of court action?

 

[garrula lingua]

DMV can set aside the suspension for 23152(b), but the Prosecutor can still convict you for 23152(a).


The administrative suspension by DMV has nothing to do with the crininal prosecution of driving under the influence (they are separate).

However, if the cop's testimony was such that it contradicted the police report, then the Prosecutor would probably drop or reduce the charges.

 

[x_x_x]

yes. I understand they are totally separate.

The officer did not appear to the DMV hearing, so an objection was made that the Sole evidence of fact was hearsay.

But, the testimony was sworn, and the defendant did discuss particulars about the arrest etc. It was rather interesting, as the leading questions by the Hearing Officer examined if there were any irregularities in the report or the reporting. She did not seemed shocked that the alleged backing was reportedly initiated by the patrol car, when I stated that I believed the charge was untrue. I almost want to believe that this is common practice, as the officer wants the other charges to "stick".

A win at the DMV could also point to potential "holes" that could be in the prosecution's case. I do not think that showing evidence of a "set aside" or even a transcript of the hearing could be in any way negative for the defense to point to in pre-trial conversations.

Even a "loss" at the DMV could be turned into a "win" if a writ is sought (in terms of driving and with the DMV). If the proper objections are made, and then a transcript is prepared, and a filing for a writ is made and accepted (with a large fee) driving privilege can be reinstated.

With a "refusal", I think this is why many criminal cases include dropping of the refusal charge in a plea bargain. If you claim that you had officer induced confusion, it is very hard to prove that you willfully refused a chemical test. So, if it cannot be proven that you willfully refuse, the prosecutor then must rely on other evidence such as video evidence. I have noticed that there is hesitance to use video evidence, because, unless edited, could be a double edged sword for the prosecution and reveal contradictions to the police report that was filed.

It is also not determined how many prosecutors actually obtain the video evidence and go through the tapes. Most likely, they have not obtained or requested the video at the time of the initial arraignment. A skilled defense would either obtain these videos, or at least pretend they have seen them, when trying to negotiate a plea or dismissal. I have not gone through this process yet, but I am eager to see what happens.

 

[CdwJava]

The officer did not appear to the DMV hearing, so an objection was made that the Sole evidence of fact was hearsay.

The rules of court and evidence do not apply in a DMV hearing. In fact, if all the paperwork is submitted and clear, the officer is generally not even asked to appear or call in for the hearing. The scope of the DMV hearing is very limited and can be met by the presentation of the DS 367 form completed by the officer.

The only way the hearing can benefit you would be if - as Garrula points out - the officer contradicts himself. This is why I tell my officers to refer only to their reports when they attend their hearings.

"As noted on page two of my narrative, I observed the defendant come to a complete stop approximately a full car length past the limit line ..."

That way there is little chance of contradictory statements being extrapolated.


- Carl

 

[x_x_x]

Hearsay Evidence at DMV Hearings
Hearsay is Admissable at DMV

One of the most maddening aspects of a DMV hearing from a trial lawyer's point of view is the relaxed hearsay rules that apply. In short, hearsay evidence that would never be allowed in a criminal trial is just fine at DMV.

What is hearsay evidence? In short, it is some kind of statement or record of a statement that was originally made outside of the hearing. For example, a 911 call reporting that a motorist was weaving contains a hearsay statement that was made outside of the DMV hearing. Similarly, a pedestrian who witnessed an accident may have told an officer "the blue car ran the light." In both cases, DMV will often just use the police report with the officer's notes about the 911 call or the witness' observations.

Such "evidence" would be unthinkable in a criminal trial, but it is allowed under the "relaxed rules" of administrative hearings. DMV makes the most of this loophole; often the entire case against you at a DMV hearing will consist only of the police reports prepared by the arresting officer.
So how do we ever win these hearings?
Hearsay Can't be the Only Evidence of a "Finding"

The one limitation on DMV's use of hearsay at a hearing is that, though it is admissible without limitation, it cannot be used as the "sole evidence" of any fact necessary to suspend your license. Let me explain.

To suspend your license, the hearing officer must make certain findings of fact based on the evidence at the hearing. In an excess BAC case, for example, the hearing officer must make a "finding" that you were driving at a time when your BAC was 0.08% or greater.

This "finding" actually requires four separate findings:

1. that you were the driver (and not someone else);
2. that you were driving a vehicle (and not simply parked);
3. a specific time that you were driving; and
4. a 0.08% or greater BAC at that time.*

If the hearing officer makes a "finding" that your BAC was 0.08% or greater, for example, he must be able to point to evidence that supports that finding. With the one exception noted in the next section, the hearing officer cannot support his finding by using hearsay alone. This limitation may be important, as in a blood test case where the only evidence of BAC is often the hearsay Blood Test Report, which may be wholly insufficient to suspend a motorist's license.
Unless a Hearsay Exception Happens

There is one exception to the rule that hearsay alone cannot support a "finding," and that is where a hearsay exception applies. This exception is so common that it has really become the rule, and many hearing officers have become experts at knowing which hearsay exceptions apply to the various documents they routinely use to suspend licenses.

For example, in my blood test report scenario above, the hearing officer will often say that the report falls within the "public employee records" exception to the hearsay rule and can be relied upon as the sole evidence of BAC. And often, the hearing officer would be right.

So again, how do we ever win these hearings?
The Hearsay Exceptions Don't Always Apply

The hearing officers are not lawyers and usually do not have a solid command of the rules of evidence. What they do have a solid command of is the stack of memos from their superiors telling them how best to suspend licenses based on hearsay. These instructions rarely cover all the scenarios they encounter, leaving them to guess at how to apply hearsay law in a great many situations. And that's where we have a fighting chance to win these hearings.

Let's take the blood test report example again. If the blood test report is signed by a person whose job description is defined by public statute (a true "public employee"), then the public employee records exception applies and DMV can use the report alone to suspend your license. If, however, as is often the case, there is no job title on the blood test report or the title is something made up by the lab that prepared it, the exception does not apply, and DMV may not suspend your license based only on the report.

* The hearing officer may be able to rely on certain "presumptions" related to time and BAC, but they are not relevant for our purposes here.

 

[BigMistakeFl]

BigMistakeFl

Rarely do the DMV hearings disagree with the cop's point of view. The driver doesn't often prevail in these hearings. It's sometimes more a formality, sometimes in order to get a temporary license or for your defense lawyer to obtain what the prosecution will have against you. I would not expect a win in this meeting.

 

[CdwJava]

The most common reason to have the DMV hearing (as I hear it from DUI attorneys) is that they ware seeking to evaluate the state's case and the key witness - the officer. if the officer is unprepared, inarticulate, or inexperienced, the defense attorney can plan a defense that might help exploit these weaknesses - and, any contradictions to the report. If the officer knows his stuff and comes across poised and articulate, it is often time to deal.

- Carl