DUI DMV Hearing: Where’s the Due Process?

Wednesday, April 16th, 2014

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? 

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California Assemblyman Proposes Marijuana Zero-Tolerance DUI Standard

Friday, April 11th, 2014

We recently referred you to an American Bar Association Journal article in which Lawrence Taylor was interviewed about the difficulties of correlating traces of marijuana in the blood and intoxication. We also mentioned the use of zero-tolerance laws for marijuana by some states as a way to address issue. It seems that one California assemblyman looks to include California in that list of zero-tolerance states.

Currently, for a person to be convicted of a California marijuana DUI, it must be proven that they were “under the influence.” A person is under the influence when his or her physical or mental abilities are impaired to such a degree that he or she no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.

Assemblyman Jim Frazier recently introduced AB 2500. The bill, if passed, would change California’s current DUI law making it unlawful for a person to drive with any detectable amount of marijuana in the system. The law also seeks to make it illegal to drive with any trace of any other controlled substance in the system.

The proposed language of the law would read:

“It is unlawful for a person to drive a vehicle if his or her blood contains any detectable amount of delta-9-tetrahydrocannabinol of marijuana or any other drug classified in Schedule I, II, III, or IV under the California Uniform Substances Act (Division 10 (commencing with Section 11000) of the Health and Safety Code).”

The legislature rejected a similar bill introduced last year by Senator Lou Correa. Rightly so. Let’s hope they do the same to AB 2500.

Delta-9-tetrahydrocannabinol (THC) can remain in a person’s blood for up to weeks and longer after marijuana use, and well beyond the point at which a person cannot safely operate a vehicle. That doesn’t matter to those who support the proposed law. It seems they would be okay with punishing perfectly sober drivers simply because they ingested marijuana at some point in the last several weeks.

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DUI + Death = Manslaughter….or Murder?

Friday, January 31st, 2014

I've mentioned in past posts the growing trend among prosecutors around the country to elevate drunk driving fatality cases from the crime of manslaughter to the crime of murder, usually resulting in life imprisonment.  See for example, DUI Murder?How to Convict a Drunk Driver of Murder and The Death Penalty for DUI?

A typical example concerns a DUI murder case in Orange County, California, reported in an Associated Press news story entitled "Murder Charges Increasing in Fatal DUI Cases" (article offline).  In the trial, the defendant was only charged with murder, not with manslaughter.  After extensive deliberations, the jury returned a verdict of guilty.



During the trial, I granted two interviews with the reporter.  As so often happens, however, the reporter did not understand the law and I was misquoted.  The two points I was trying to make to the reporter in objecting to a murder charge rather than one for manslaughter are important to understand:


Murder vs Manslaughter and the Concept of "Malice"

The legislature of California passed a law specifically for the situation where a death results from drunk driving:  vehicular manslaughter.  It is a "general intent" crime, that is, the driver does not have to intend to kill the victim to be guilty of manslaughter.  

They also passed a law for murder:  "Murder is the unlawful killing of a human being, or a fetus, with malice aforethought".  The statute made the killing first degree murder if it was premeditated, and added that "All other kinds of murder are of the second degree".  Thus, an intentional killing without premeditation is second degree murder….as is any killing that is done with "malice"  

So….What is "malice"?  Much like the legal definition of "obscenity", no one seems to know.  The California statutes fumble with the definition, settling on:  "…when the circumstances attending the killing show an abandoned and malignant heart".  Ok, but how do you define an "abandoned heart"?  How do you prove or disprove a "malignant heart"?  What is a jury supposed to do?

A few years ago, a clever prosecutor in California charged a defendant in a DUI fatality case with murder rather than manslaughter.  He believed that he could get a jury to buy the idea that driving under the influence of alcohol (or driving over .08%) satisfied the vague concept of  "malice".  He was right, and the practice began to spread.  This was accelerated by the California Supreme Court's decision in People v Watson, where the Court said that a drunk driver could have the required "malice"…whatever that is.  

Since then, there have been a number of appellate decisions trying to establish what is required to prove malice in a DUI case.  The result:  it is malice if the driver knew that drunk driving could be dangerous.

Duh…Don't we all know that?  

Clearly, these are vague terms which can mean what you choose them to mean.  As the Mad Hatter said to Alice in Through the Looking Glass:

“When I use a word”, Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean — neither more nor less.”

“The question is”, said Alice,”whether you can make words mean so many different things.”

“The question is”, said Humpty Dumpty, “which is to be master — that’s all.”

The simple fact is that there is a very clear and concise statute which was intended for drunk driving causing death: manslaughter.  There is no mention of DUI in the murder statute, nor was it ever intended for that situation.



Prosecutorial Tactics in Bypassing the Manslaughter Law

The prosecutor in the Orange County case used an increasingly common but clever tactic: don't charge the defendant with murder and manslaughter — just with murder.  If both are charged, the jury is likely to understand that (1) the manslaughter statute is clear and fits the facts, and (2) "malice" is too vague to send a man to prison for life.

But isn't that a big gamble by the prosecutor?  If the jury doesn't buy the murder theory, the defendant goes free.

Exactly!  And the prosecutor know this: he is putting the jury in the position of either convicting the defendant of murder…or letting him walk out of court unpunished for a deadly crime.  He knows the jury does not want to let a drunk driver who killed a man get away with it, even if they may be uneasy with "malice".  And they are never told that there is a manslaughter law intended for this kind of case.  



Many years ago when I was a deputy district attorney in Los Angeles, there was a cynical saying in the office:  "Anyone can convict a guilty man; it takes real skill to convict an innocent one"….

 

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