I often tell my students that when they hear the phrase “due process” they should think of fairness. When it comes to criminal actions in a court of law, due process (at least in theory) is the cornerstone to the proceedings. Unfortunately, the same can’t be said for DMV hearings (Admin Per Se hearings) following a DUI arrest.
When a person is arrested on suspicion of a California DUI their license will be suspended by the California DMV if one of two things will happen: 1.) law enforcement takes a blood or breath test which indicates that the driver’s blood alcohol concentration level is 0.08 percent or more, or 2.) the driver refuses to complete either a blood or breath test. Due process provides that a driver has the right to request an administrative hearing to challenge the DMV’s evidence.
However, just because a driver is provided the right to a hearing does not mean that due process will be present at the hearing.
Imagine a criminal court case in which the defendant attends the hearing at the prosecutor’s office. During the hearing, prosecutor argues for a conviction. Immediately following the argument, the prosecutor throws on a robe, steps up to the judge’s bench, and rules on his own argument. Doesn’t sound fair, does it? It’ not, but that’s essentially what happens at a DMV Admin Per Se hearing.
The DMV, the same agency which is trying to sustain the suspension, is the agency which conducts the hearing. What’s more, the DMV hearing officer, who, believe it or not, is a DMV employee, conducts the hearing. (Starting to see a pattern?) The hearing officer can object to the driver’s evidence. The hearing officer can rule on his own objection. Finally, the hearing officer decides if he or she wins. They almost always do.
Forget about impartiality. Surely, the hearing officer must be someone versed in the law, perhaps a lawyer or someone holding a law degree. Think again. In fact, according to the DMV’s employment eligibility requirements, a hearing officer need not have a college degree!
Winning a DMV hearing is difficult for lawyers (although not impossible). Since the hearing is considered civil, there is no right to an attorney. What about those drivers who have to conduct the hearing themselves because they can’t afford an attorney? How difficult must it be for them to prevail in a hearing where the cards are already stacked against them?
Speaking of the hearing being civil, there’s much lower standard of proof that the hearing officer must meet before they can suspend your license. In a criminal court case, the prosecutor must prove beyond a reasonable doubt that a driver was driving with a BAC level of 0.08 percent or above. At the DMV hearing, the hearing officer only needs to prove more likely than not the driver had a BAC of 0.08 percent or more.
It is much easier for a hearing officer to meet this lower standard when they’re allowed to introduce hearsay police reports. Hearsay statements are generally excluded from court cases because the person making the statement cannot be cross examined. Not the case in DMV hearings. Most of the time, arresting officers are absent from DMV hearings. If a driver wishes to cross examine the arresting officer who wrote the report, he or she must subpoena the officer at his own cost. This includes paying for the officer’s salary for the time that they attend the hearing.
Loss of a driver’s license can have devastating consequences. One would think that with so much at stake, people would be afforded safeguards that would ensure fairness. But where’s the fairness in any of this? Where’s the due process?