Wednesday, June 3, 2015

What Happens At A DMV Hearing

If you were arrested for DUI and hired an attorney chances are he requested a DMV hearing to challenge the suspension that you are facing.  The date will be set out usually a month or two to allow. The attorney to prepare.  If you took a breath or blood test the issues will be 1.  Whether you were lawfully arrested. 2.  Whether you were driving, and 3.  Whether at the time of driving your blood alcohol level was .08 or more.

The hearing is very informal, there is no Judge, there is no bailiff or a Court Reporter.  The hearing is conducted in an office and is presided over by a DMV employee with the title "hearing officer".  The procedure is as follows:  first, the DMV will seek to identify all documents received by the police agency such as the arrest report, breath or blood results and any other documents prepared by the arresting officer.  The attorney will make any objections to the evidence such as any evidentiary defects that may affect their admissibility.  The hearing officer will usually overrule the objections and admit the documents over objection.  If a witness has been subpoenaed then they will testify and cross examined.  The attorney will be allowed to argue that the evidence is insufficient to sustain the burden of proof and can present case law or legal reasons why the Department should dismiss or set aside the suspension.

In many cases the client will be advised to be available by phone but not personally appear.  The reason for this is that there is no right against self incrimination at a DMV hearing and therefore the hearing officer can question them about anything relevant to the case.  If there is a defect or some evidence lacking in their case the DMV can "fill in the gaps" by questioning the licensee.  For example, if the officer failed to include information in the documents that is crucial to the case the DMV can get that evidence from the client.  Further, they can put the client in a tough position by questioning them about the number of drinks they had consumed.  In some cases it is vital to the defense that the client testify, but most of the time, the attorney will focus on making the DMV meet their burden of proof and not shift the focus to whether the client is credible or not.  For instance, if there was some error in the procedure, a regulation was not followed or the officer made some mistake, this will be dwelled upon.

At the conclusion of the hearing the DMV will render a decision.  In some cases, the hearing officer may take the matter under submission and send out a written decision of their findings.  This can sometimes take weeks but the client will be able to continue to drive pending a decision.

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