Imagine the Presiding Judge of a courthouse telling the other judges, "There have been too many acquittals lately. I’ve reviewed them and disagree with most of your ’not guilty’ verdicts. All future acquittals will be submitted to me for review, and if I disagree with them you will be counselled and your fitness to continue serving as a judge will be reviewed."….
When a citizen is booked on suspicion of drunk driving, his driver’s license is immediately suspended by the police if he (1) takes a breath test indicating .08% blood-alcohol or higher, (2) takes a blood test (even though results are unknown until later lab analysis), or (3) he refuses to be tested. In essence, the cop is the judge, jury and executioner.
But what happened to due process, to fundamental fairness? Well, the citizen has a right to appeal the suspension by demanding an administrative hearing where he can challenge the DMV’s evidence, present his own evidence and argue his case.
In California, as in most states, this is done at a hearing conducted by the Department of Motor Vehicles. As I’ve pointed out in previous posts, however, this "hearing" is anything but a fair and impartial one. See Due Process and Automatic License Suspensions.
1. The government agency that is trying to sustain the suspension — the DMV — is the same one conducting the hearing.
2. Hearsay police documents – which cannot be cross-examined – are admissible and commonly make up the Department’s entire case.
3. If the citizen wants to cross-examine the officer, he has to subpoena him at his own cost (service of the subpoena and the officer’s overtime salary) for the privilege.
4. The prosecutor is not a real prosecutor, nor even an attorney. Nor, in most cases, even a college graduate. He is an employee of the DMV.
5. The judge is also not a real judge — not even, as in other states, an ALJ (administrative law judge). In fact, this "judge" is also not an attorney. Nor a college graduate. This "judge" is, like the prosecutor, an employee of the DMV with a high school degree.
6. The "prosecutor" and the "judge" are, in fact, the same person. That’s right, this supposedly impartial hearing officer is both prosecutor and judge. He can object to the citizen’s evidence — and then rule on his own objection. He presents his case — and then decides if he wins or loses.
Amazingly, however, a few of these DMV hearing officers try to do the right thing. So what happens if some hearing officer starts developing a conscience and makes a few decisions in favor of the citizen?
The following is an internal memorandum provided to me by a very reliable source which the manager of the California DMV’s San Diego hearing office circulated to his hearing officers yesterday. (Note: a "set aside" is the term used when a license suspension has been reversed by the hearing officer.)
From: [Manager, San Diego Driver Safety Office]
To: [names of 14 hearing officers]
Sent: Monday, October 27, 2008 2:12pm
Subject: Set Asides
This is a reminder to place your set asides in the SET ASIDE basket in the file room. I run a weekly report to confirm that the set asides are being placed in the basket. Some of you have not been putting the set asides in the bin.
To date, I have reviewed 17 set asides. The results are as follows:
– 6 good decisions
– 4 are questionable — needing review of the [tape] recording to make determination
– 7 are unwarranted set asides
These results are terrible, in that we have no rookie hearing officers. Should you be responsible for any of the 7 unwarranted set asides, your manager will be discussing the case(s) with you, if they haven’t already.
I will be publishing my findings on each of your cases — good and bad ones — minus the hearing officer name and case info. Should you wish to discuss any of these cases with me, feel free to do so.
In reading this "smoking gun" memo, ask yourself the following questions:
1. Why are are the decisions — verdicts — of these administrative judges subject to further review by the DMV’s office manager? To identify and weed out hearing officers who are not sustaining enough DMV suspensions?
2. Why is the office manager substituting his own judgment for that of the hearing officer who heard the evidence?
3. Why are the hearing officers ordered to submit their set aside decisions for review — but not their decisions sustaining the suspension?
4. Why do supposedly independent judges have "managers"?
5. How can 11 of 17 decisions in favor of the citizen – a tiny percentage of all cases handled by the San Diego office — be determined "questionable" or "unwarranted"?
6. Why are the results "terrible, in that we have no rookie hearing officers"? Because "rookies" don’t yet have the big picture and are actually decidng cases on their merits?
7. What do you think the clear message of this memo is to all hearing officers who want to keep their high-paying jobs?
This is the supposedly "fair" hearing by an "independent" hearing officer that is given to citizens who have had their licenses taken by police. And as any DUI attorney will tell you, this same approach is found in hearing offices statewide.
Welcome to "due process" at the DMV.