For those people who are facing a DMV hearing related to a DUI arrest in Los Angeles County, it can be confusing and a down right scary proposition. When the Department of Motor vehicles wants to take some sort of an action to suspend your driver’s license administratively, they must give you the option of defending that suspension, by way of the DMV hearing.
You can fight the suspension yourself or you can hire an attorney to defend your driver’s license suspension. We suggest you hire an attorney in order to have the best chance of being successful and avoiding the most damage to your ability to drive. Attorney who have battled it out with the DMV for many years will know what it take to win and when it is best to resolve your case and move forward in a positive direction with your life.
At the hearing, evidence is presented by a DMV hearing officer in order to prove that you are responsible for driving a motor vehicle under the influence of alcohol to a degree that you could not safely operate the subject vehicle. There is a presumption in California that if your blood alcohol level was .08 or higher, at the time of driving, then you could not safely operate a motor vehicle and were DUI.
During the hearing, the officer for the DMV must prove that the police lawfully stopped you or came in contact with you, that you were lawfully arrested and that your blood alcohol level was a .08 or higher. If you refused to take the DUI blood or breath test, then it is presumed that you could not safely operate a motor vehicle and you will lose your driver’s license for one year with no restricted drivers license. The reason for the harshness of this punishment is that if this policy were not in place, then everyone would just refuse to take the test and the authorities would not be able to prove that anyone was driving under the influence.
In my opinion, the hearing is a bit of a “Kangaroo Court” because the hearing officer is the one who puts on the evidence against you and then rules on his or her own case as to whether he or she has met their burden of proof. It would certainly be a much more just proceeding if an independent person listened to the evidence, ruled on the objections to the evidence and ultimately decided if you lose your license. However, this is the system we have and hence you better have an attorney who knows it and how to maneuver within it.
Because the DMV has the burden of proving their cases against you they must present the evidence first in order to try and prove you should lose your license. They typically will use the police report and blood alcohol reading in order to prove their case. Whatever the subject arresting law enforcement agency provides them, after the arrest, is what they will use to try and prove the case. This method does not leave much for the defense attorney to do except attack the contents of the report.
In the appropriate case, the DMV or your defense attorney can actually call the arresting officers or other people who saw what happened as witnesses during the hearing. This gives both sides a chance to ask questions of the witnesses and determine exactly what happened the day of your arrest. Also, you can be called as a witness to testify on your own behalf by your attorney. If your attorney chooses to do this, then you will also be subject to questioning by the DMV hearing officer. And, of course the answers to their questions can be used to prove that you are guilty of the offense.
Over the course of the past twenty five years of defending DMV / DUI cases for my clients I have discussed with them many times whether it is an advantage to have an in person DMV hearing versus one over the phone and whether their testimony will make a difference in the outcome of their case. Of course every case spins on its own facts and there is no set answer that cover every scenario.
However, for purpose of answering this question, I will say that I do not believe it makes a difference whether the client and attorney are face to face during the hearing with the hearing officer or not. The hearing officer is still going to use the same procedures and they do not really have flexibility to change the outcome of the hearing just because they saw the person face to face and liked them. A DMV hearing can be won over the phone, just like they can be won in person. It depends on whether the defense has some good arguments to attack the DMV’s / police’s case or not.
As far as having a client testify at a hearing, it depends on whether the testimony will assist in winning the case or not. If the client can not add anything to the mix that helps, then there is no reason to have them testify. Further, if the client will incriminate themselves by answering the hearing officer’s questions, then we definitely do not want them to testify. Moreover, we do not want the client to be in a position where they are lying to the hearing officer and subject to more charges and issues.
Your attorney should be the one helping you make these decisions and fighting the important issues for you. A seasoned DUI defense attorney will know when a case can be won and when it is best to work out a deal and cut your loses.