When a citizen is booked for drunk driving, his driver’s license is confiscated by the officer and a notice of immediate suspension from the state’s Department of Motor Vehicles is handed to him. The officer is judge, jury and executioner; there is no presumption of innocence. The only remedy available to the citizen is to request an administrative hearing before the state’s DMV — the very agency which is trying to suspend the license. (See my earlier post, “Due Process and the Automatic License Suspension”.)
Periodically, however, some conscientious judge decides that maybe due process (which is just a legal word for “fairness”) before the DMV isn’t all that it should be:
FORT LAUDERDALE, FL. February 25 – Marcie Wyrobeck graduated from the Philadelphia College of Art and worked in sales and for an arts and crafts store. She had no formal legal training. Yet, for nearly a decade, she was a state hearing officer who decided the appeals of people whose drivers licenses were suspended in drunken-driving cases. When a difficult legal question came up in one of those hearings, Wyrobeck said she and other Department of Highway Safety and Motor Vehicles hearing officers – some with only high school educations – routinely asked the agency’s lawyers for advice about how to rule. Now a judge in Broward County has ruled that allowing hearing officers like Wyrobeck to consult on legal issues with the department’s own attorneys violates the fundamental constitutional rights of defendants in drunken-driving cases. “How can the specter of actual conflict, much less the appearance of conflict, not raise its ugly head?” said Broward County Circuit Judge J. Leonard Fleet in his ruling late last year. Wyrobeck, who now consults for DUI defense lawyers, said the conflict is obvious: “It’s like being the judge and the prosecutor at the same time.”
Shoot, here in California it’s not like the judge is the prosecutor: the judge is the prosecutor. That’s right, the “prosecutor” at a DUI suspension hearing is a high school graduate and DMV employee who sits as the judge and decides whether his employer or the citizen wins. This individual, who has never read the Evidence Code, will make objections to the citizen’s evidence — and then rule on his own objection (and they don’t call anyone for legal advice). Want to cross-examine the officer? You have to subpoena him yourself — and pay his salary. Does the hearing officer have a conscience? Too many decisions against the DMV and he’s reassigned to more mundane duties.