So you got stopped last night and arrested for drunk driving. And right after the breathalyzer showed a blood-alcohol reading of .12%, the officer confiscated your driverâ€™s license and gave you a piece of paper that said 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 punish me 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 driverâ€™s license of anyone arrested for (not convicted of) drunk driving who (1) has a .08% breath reading, or (2) takes a blood or urine test (which will be analyzed later), or (3) refuses to take any test. This means immediately â€” on the spot: the license is grabbed 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 drunk driving case is constable, prosecutor, judge, jury and executioner. You have absolutely no rights. In fact, if you took a blood or urine test, they donâ€™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 various state legislatures decided to find a way to get drunk drivers off the highways RIGHT NOW â€” and not be diverted by any technicalities like, well, the Constitution. So they enacted so-called â€œAPSâ€ laws (â€œadministrative per seâ€, referring to the â€œper seâ€ crime of .08%, as opposed to the crime of driving under the influence of alcohol, which is for the courts). They justified this by saying that a license was a â€œprivilegeâ€, not a â€œrightâ€ â€” 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 a privilege. However, once the state gives someone a license, that person then has a property right in it â€” and that right cannot be taken away 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.) MADD has been successful in getting the Feds involved; a highway appropriations bill was passed which pretty much coerced all 50 states into adopting APS suspensions â€” or else no highway funds
Do these APS hearings in DUI cases provide due process? In other words, how fair are they?
Letâ€™s take Californiaâ€™s APS hearings. They are conducted by a â€œhearing officerâ€. Is this an impartial judge? Well, heâ€™s hardly impartial: Heâ€™s an employee of the DMV â€” the very agency that is trying to suspend the license (kind of like a judge being paid by the prosecutor). And he isnâ€™t a judge. Actually, he isnâ€™t even a lawyer; heâ€™s only required to be a high school graduate. So who is the prosecutor? Heâ€™s, well, the same guy.
Thatâ€™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 the driverâ€™s evidence â€” and then sustain his own objection!
Not too surprisingly, the DMV wins about 96% of these DUI hearings.
Thatâ€™s called â€œdue processâ€ in a drunk driving case.