DMV proceedings

• Author: Paul Burglin/Barry Simons/Ed Kuwatch
• Pages: 967-1113

DMV PROCEEDINGS

11-1

CHAPTER 11

DMV PROCEEDINGS

§11:10 THE ADMINISTRATIVE PER SE (APS) SUSPENSION ACTION

§11:11 Grounds for Issuance of an APS Order

§11:11.1 Diversion on Criminal Charge Does Not Preclude APS Action

§11:11.2 Use of Arrest Records by DMV Where Records Have Been Ordered Sealed

§11:12 APS Suspension Periods

Figure 11-1 APS Suspension Period Chart (offenses January 1, 2019 or later)

Figure 11-2 APS Suspension Period Chart (offenses July 1, 2010 to December 31, 2018)

§11:12.1 Concurrent vs. Consecutive Suspension Orders

§11:13 Restricted License Eligibility on APS Suspension

§11:13.1 First-Time Offender Over 21 With Excessive BAC

§11:13.2 Multiple Offenders with Excessive BAC

§11:13.3 Commercial License Holders And Commercial Vehicles

§11:13.4 Critical Need to Drive for Persons Under 21

§11:13.5 Grounds for Denial or Termination of Restricted License

§11:15 Record Must Be Updated in Sacramento DMV for Reinstatement

§11:20 PROCEDURE PRIOR TO ADMINISTRATIVE HEARING

§11:21 Service of APS Order

§11:21.1 Prominent Notice of Right to Hearing

§11:21.2 Foreign Language Notice

§11:22 Seizure (“Snatching”) of California License and Issuance of Temporary License

§11:23 Manner of Service

§11:24 Service of the Wrong Order

§11:25 Sworn Statement and Supporting Information Forwarded to DMV by Off‌icer

§11:26 Blood and Urine Samples Sent to Forensic Lab; Lab Sends Results to DMV

§11:27 Automatic Internal Review by DMV and Factual Determination by DMV

§11:30 REQUESTING THE HEARING

§11:31 How to Request a Hearing

§11:32 Contents of the Hearing Request

§11:33 The 10-Day Deadline (the Law and Reality)

§11:33.1 Exceptions to the DMV’s 10-Day Deadline

§11:34 Telephone vs. In-Person Hearing Request

§11:35 Hearing Location

§11:36 Motion for Change of Venue

§11:37 Notice of Hearing

DMV PROCEEDINGS

California Drunk Driving Law 11-2

§11:40 THE RENEWED RIGHT TO A HEARING (OR SECOND HEARING)

§11:41 New Hearing as of Right

§11:41.1 Obtaining the Renewed Hearing

§11:42 New Hearing by Discretion

§11:50 PREPARING FOR THE HEARING

§11:51 Discovery

§11:52 No Right to Pitchess Discovery at DMV

§11:53 Request for Discovery

§11:54 Non-Compliance With Discovery Demand

§11:55 Subpoenaing Witnesses

§11:55.1 Manner of Service

§11:55.2 Fees for Government Employees

§11:55.3 Enforcing a Subpoena

§11:56 Testimony by Aff‌idavit or Declaration

§11:60 THE HEARING PROCEDURE

§11:61 Continuances and “Reconvenes”

§11:61.1 Denial of Continuances

§11:62 Reopening Hearing and Receipt of Evidence After Hearing

§11:63 Dual Role: Prosecutor and Decision-Maker

§11:64 Grounds for Disqualif‌ication of Hearing Off‌icer

§11:64.1 Voluntary Disqualif‌ication

§11:64.2 Challenge for Cause

§11:64.3 No Peremptory Challenge

§11:65 Hearing Off‌icer Need Not Be an Attorney

§11:66 Right to a Prompt Hearing and Decision; Stay Order

§11:66.1 Rejecting the Stay Order

§11:67 Limited Power of DMV Hearing Off‌icer

§11:70 RULES OF EVIDENCE

§11:71 The Applicable Rules of Evidence

§11:72 The Hearsay Rule

§11:73 Exception Might Permit Sole Use of Driver’s Hearsay Evidence

§11:74 Hearsay-in-Hearsay

§11:75 Hearsay Police Reports

§11:75.1 Hearsay Statement of Off‌icer in Another Off‌icer’s Report

§11:75.2 Hearsay Statement of Public Employee in Off‌icer’s Report

§11:75.3 Hearsay Statement of a Private Citizen in Off‌icer’s Hearsay Report

§11:76 [Reserved]

§11:77 [Reserved]

§11:78 Right to Continuance to Question Hearsay Declarant

§11:79 The Public Employee Records Exception

§11:79.1 The Statute—Evid. Code §1280

§11:79.2 Within the Scope of Duty of Public Employee

§11:79.3 Contemporaneous Recording Requirement

§11:79.4 Trustworthiness Requirement Is Presumptively Satisf‌ied

§11:79.5 “At or Near” Requirement Is Not Presumptively Satisf‌ied

§11:80 Off‌icial Notice

§11:81 Off‌icial Duty Presumption

§11:82 DMV’s Off‌icial Records

§11:83 Unsworn Statements

§11:84 Admissibility of Chemical Test Report

§11:84.1 Unsworn Chemical Test Report

DMV PROCEEDINGS

11-3 DMV Proceedings

§11:84.2 Non-Certif‌ied Chemical Test Report Received Electronically

or by Computer From Computerized Database

§11:85 Hearing Off‌icer’s Experience, Technical Competence and Specialized Knowledge

§11:86 Evidentiary Privileges

§11:87 Preservation of Evidence

§11:88 Authentication of Documents

§11:89 Corpus Delecti Rule

§11:90 Testimony by Aff‌idavit or Declaration

§11:91 Electronic Reports and Signatures

§11:92 Crime Lab Reports

§11:92.1 Crime Labs Don’t Need Licenses From DHS

§11:92.2 Crime Labs No Longer Subject to Inspections and Prof‌iciency Testing Minimized

§11:92.3 DHS No Longer Will Keep Lists of Persons Approved to Conduct Forensic

Alcohol Testing

§11:100 THE EXCLUSIONARY RULE

§11:101 Exclusionary Rule Inapplicable Absent Egregious Conduct By Police

§11:102 Unlawful Speed Trap Rule

§11:110 AFFIRMATIVE DEFENSES

§11:120 EXCESSIVE BAC HEARING (.08% OR HIGHER)

§11:121 Summary of the Issues

§11:122 Analysis of the Issues

§11:122.1 ISSUE 1: Reasonable Cause to Believe Person in Violation of

VC §23152 or §23153

§11:122.2 ISSUE 2: The Person Was Arrested

§11:122.2.1 “Lawful” Arrest Required

§11:122.2.1(a) Off‌icer Must Have Objectively

Reasonable Suspicion of

Traff‌ic Violation

§11:122.2.1(b) May Arrest Be Found Lawful Where

Detention Is Not?

§11:122.2.2 What Constitutes an Arrest?

§11:122.2.3 Arrest That Becomes Detention Only

§11:122.2.4 DUI Checkpoints and Other Roadblock Detentions

§11:122.2.5 Speed Trap Arrest Is Not Legal

§11:122.2.6 Non-Presence Misdemeanor Arrest and the

§40300.5 Exception

§11:122.2.7 Off‌icer Must Have State-Issued P.O.S.T. Certif‌icate

§11:122.2.8 Military and Federal Police

§11:122.2.9 California Police Off‌icer Outside His Employing Jurisdiction

§11:122.3 ISSUE 3: Person Was Driving With a 0.08% or Higher BAC

§11:122.3.1 Driving

§11:122.3.2 “Vehicle”

§11:122.3.3 Must Be Direct Evidence of BAC

§11:122.3.4 Scientif‌ic Foundation: Off‌icial Duty Presumption and

Rebutting It

§11:122.3.5 The Three -Hour Presumption In VC §23152 Applies

§11:122.3.5(a) Rebutting Three-Hour Presumption

With Rising BAC Defense

§11:122.3.5(b) Use Of General Intoxication

Evidence To Bolster Or Reject

Retrograde Opinion