So you got stopped last night and arrested for drunk driving. And right after the Breathalyzer showed a blood-alcohol reading of .11%, the officer confiscated your driver’s license and handed you an official document notifying you that it was immediately suspended.
What happened? you ask. Can they do that? I thought I was presumed to be innocent, and the state has to prove my guilt beyond a reasonable doubt before they can punish me. And I remember something about "due process": Can they suspend my license for DUI before giving me a chance to defend myself?
The Department of Motor Vehicles (or whatever they call it in your state) is required by law to immediately suspend the driver’s license of anyone arrested for (not convicted of) DUI who either (1) has a .08% breath reading, (2) takes a blood test (which will be analyzed later), or (3) refuses to take any test. This means immediately: the license is grabbed at the police station and the DUI suspension is legally effective the moment the officer signs the notice and hands it to you.
Viewed another way, the officer in a DUI case is investigator, prosecutor, judge, jury and executioner. You have absolutely no rights. In fact, if you took a blood or urine test, they don’t even wait for the results (which will come back from the lab days later): they not only presume you are guilty, they also presume that the evidence will eventually show it! So, again: How can they do that in America?
Well, at first MADD and politicians interested in reelection decided to find a way to get drunk drivers off the highways RIGHT NOW — and not be diverted by any technicalities like, well, the Constitution. So they enacted so-called "APS" laws (the phrase stands for "administrative per se", referring to the "per se" crime of .08%, as opposed to the crime of driving under the influence of alcohol). They justified this by saying that a license was a privilege, not a right — and since the license holder had no rights, the state could do what it wanted.
Well, the U.S. Supreme Court blew that justification out of the water. In Bell v Burson (402 U.S. 535) the Court acknowledged that the right to drive is initially a privilege. However, once the state gives someone a license, that person then has a property right in it — and that right cannot be taken away from a citizen without giving him due process. And due process means a fair procedure by which he can contest the confiscation of his property.
The reaction to this has generally been to continue to suspend licenses on the spot, but to then give the driver a short-term temporary operating permit during which he can request an administrative hearing. (In a few states, the process is handed over to the courts and the suspension merged with the criminal proceedings.) And MADD has been successful in getting the Feds involved; a highway appropriations bill was passed which pretty much coerced states into adopting APS suspensions — or else no highway funds
Do these APS hearings in DUI cases provide due process? In other words, how fair are they?
Let’s take California’s APS hearings. They are conducted by a hearing officer. Is this an impartial judge? Well, he’s hardly impartial: He’s an employee of the DMV — the very agency that is trying to suspend the license (kind of like a judge being paid by the prosecutor). And he isn’t a judge. Actually, he isn’t even a lawyer; he’s only required to be a high school graduate. So who is the prosecutor? He’s….well, the same guy. That’s right: this DMV employee with no legal education is both judge and prosecutor. Put another way, this government beaurocrat, without ever having read the Evidence Code, can object to any evidence offered by the defendant/licensee — and then sustain his own objection! Not too surprisingly, the DMV wins about 95% of these DUI hearings (although having a good attorney can reduce these odds to 70% or so).
That’s called "due process" in a drunk driving case.