This is the second part in the series: The Administrative Per Se Hearing Process.  This part addresses the statutory requirements relating to requesting an Administrative Per Se Hearing, Venue and Requests for a Change of Venue, Discovery Requests, the issuance of Subpoenas and Subpoenas Duces Tecum, which are requests for the production of documents and other evidence, and Continuances, generally.

REQUESTING AN APS HEARING

The forum in which a licensee may be heard to contest a suspension or revocation under California Vehicle Code § 13353 and § 13353.2 pursuant to a charge for driving under the influence is called an “Administrative Per Se” hearing.  California Vehicle Code § 13558 permits a licensee to request the “Administrative Per Se” hearing through California Vehicle Code § 14101.

Whenever the Department has given notice, or has taken or proposes to take action under §12804.15, §13353, §13353.3, § 13950, §13591, §13592, §13953, the person receiving the notice or subject to the action may, within 10-days, demand a hearing which shall be granted, except as provided in Vehicle Code §14101.

As the above-referenced statute mandates, a licensee served with a Notice of Suspension via an Administrative Per Se Temporary Driver’s License Endorsement has ten (10) calendar days from the date of the notice to request an Administrative Per Se Hearing. 

If a request for a hearing is received by the California Department of Motor Vehicles’ Driver Safety Office (DSO), or postmarked within 10-days of the notice of suspension or revocation or, pursuant to Title 13, California Code of Regulations, § 115.04, a hearing is requested by telephone, California Vehicle Code §§ 13558(d) and 13558(e) require the hearing to be held before the effective date of the suspension or revocation.  If the hearing cannot be held before that time period, the administrative suspension or revocation action should be stayed pending the outcome of the Administrative Per Se Hearing.

In determining which day is the 10^th day, Civil Code § 10 requires that the first day be excluded and, if the last day to request the hearing falls on a Saturday, Sunday, or a holiday, Government Code § 6707 allows for the request to be made on the following business day.

If a licensee charged with driving under the influence fails to request a hearing within the 10-day period, he/she will be deemed to have waived his/her right to a hearing to contest the suspension or revocation.  In such cases, the suspension or revocation will take effect 30-days after service of notice by the arresting officer.  If a hearing is requested within the ten (10) day period, the licensee will be provided a hearing date, a stay of the suspension and discovery, if requested.

VENUE & REQUESTS FOR A CHANGE OF VENUE

According to California Vehicle Code § 14104, the Department “shall fix a time and place for the hearing.”  According to California Vehicle Code § 13558, the hearing be must be conducted as close as practicable to the location of the arrest.  A licensee may make a request for a change of venue to obtain a hearing at a location more convenient to him/her; however, such a request will not be granted in situations where the Department intends to subpoena a witness to testify at the hearing.  Title 13, California Code of Regulations, § 115.06 contains the procedures for making such a request.

REQUESTING THE DEPARTMENT’S DISCOVERY

Generally speaking, the Department’s discovery is provided in accordance with Government Code § 11507.6.  The Department’s discovery usually consists of: (1) a copy of the Officer’s Sworn Statement (DS-367); (2) a copy of the police report and, if applicable, the traffic collision report; (3) the crime laboratory records supporting showing that the licensee was in fact driving with a blood or breath alcohol concentration of 0.08% or more, and (4) any other relevant, legally admissible information the Department of Motor Vehicles may want to introduce into the record.

It is important to request a copy of the Department’s discovery at the time the hearing is requested and to follow-up the request in writing.

SUBPOENAS & SUBPOENAS DUCES TECUM 

A licensee may also wish to subpoena witnesses through a subpoena or documents and/or records through a subpoena duces tecum, both are provided on the California Department of Motor Vehicles’ website.  The issuance of subpoenas and subpoenas duces tecum are regulated by Vehicle Code § 14104.5 and Government Code § 11450.20.  Contrary to Government Code § 11450.20’s requirement that subpoenas and subpoenas duces tecum be personally served, Vehicle Code § 14104.5(b) states that, “Notwithstanding § 11450.20 of the Government Code, subpoenas and subpoenas duces tecum issued in conjunction with hearings may be served by first-class mail.”

In determining the proper statutory time periods in which to serve a subpoena duces tecum, Government Code § 11450.20 makes the Code of Civil Procedure applicable to such subpoenas for records issued for administrative hearings, which includes Administrative Per Se Hearings.  Accordingly, subpoenas for records must meet the statutory standards set forth in C.C.P. §§ 1985, 1985.4, 1987, 1988

CONTINUANCES, GENERALLY

In the event the Department of Motor Vehicles fails to deliver its discovery in a timely manner to allow for the issuance of a subpoena and/or subpoena duces tecum, a continuance may become necessary.  Government Code § 11524(b) allows for a continuance within ten (10) working days following the time the party discovered or reasonably should have discovered the event or occurrence that establishes the good cause for the continuance.  A continuance may be granted after the 10 working days has lapsed if the party seeking the continuance is not responsible for and has made a good faith effort to prevent the condition or event establishing the good cause, such as when the Department does not turn over its discovery in a timely manner.  Mysteriously, the determination of whether good cause exists is subject to the hearing officer’s approval—the very same person who has a vested interest in ensuring that the suspension action is sustained.

For more on Administrative Per Se Hearings, and the process and laws relating to it, please see our other blog entries under the California Department of Motor Vehicles’ Administrative Per Se (APS) Hearing heading.

For general information on California Drunk Driving Law, or representation for a DUI charge, please contact the Law Office of Barry Simons at: 949-497-1729 or visit our website at: www.duilawyerorangecounty.com.

DISCLAIMER: This website and blog are intended for use by those seeking general information relating to California drunk driving law.  The reader should be aware of the fact that California DUI laws and legal procedures such as those presented in this website are constantly changing.  Consequently, any statute, law, or procedure discussed herein may have been changed as a result of drunk driving laws, judicial court decisions, or California Department of Motor Vehicles (DMV) license suspension rules, regulations, policies or procedures enacted since similar information was posted on this website.

Moreover, the information provided here is not intended to be legal advice and should not be relied upon as such because there is no substitute for consulting with a qualified DUI Specialist.  Accordingly, the reader is strongly advised to consult with a DUI Specialist and anyone with a legal problem should immediately obtain legal representation and advice from an attorney with extensive experience handling California DUI Defense cases. 

The Law Office of Barry T. Simons assumes no liability whatsoever for any use of this website or blog as it is provided for informational purposes only and is not intended to be legal advice from this office or from any attorney working for this firm.  Rather, the information contained in this website and blog are intended to initiate further, subsequent discussions between the reader having a specific legal problem and a qualified DUI attorney.  All readers are informed that no attorney-client relationship is intended nor formed by any use of this website or blog and all readers are advised, in line with the Rules of the State Bar of California, that the only way to form an attorney-client relationship with The Law Office of Barry T. Simons is to execute a binding retainer agreement.

]]> http://www.duilawyerorangecounty.com/blog/california-department-of-motor-vehicles%e2%80%99-administrative-per-se-aps-hearing/feed 0 http://www.duilawyerorangecounty.com/blog/california-department-of-motor-vehicles%e2%80%99-administrative-per-se-aps-hearing http://www.duilawyerorangecounty.com/blog/california-department-of-motor-vehicles%e2%80%99-administrative-per-se-aps-hearing#comments Wed, 21 Jan 2009 17:29:34 +0000 Peter http://www.duilawyerorangecounty.com/blog/?p=146

Now that the Department of Motor Vehicles is gaining even more power with the passage of new legislation, understanding just how the California Department of Motor Vehicles operates is critical in formulating the appropriate defense to one’s DUI case.  Because California Drunk Driving laws are constantly changing, it is important to hire a DUI Specialist to represent anyone facing a charge of driving under the influence, particularly when there is an administrative hearing before one of the California Department of Motor Vehicles’ Driver Safety Offices.

When one is arrested for driving under the influence, they will likely be required to appear before a DMV Hearing Officer for an Administrative Per Se Hearing.  During this hearing, the Hearing Officer will determine whether a suspension action will be imposed.  The suspension action could be as short as four months or as long as a few years.

Contrary to popular belief, DMV CASES CAN BE WON.  Many people think that if their blood or breath test resulted in a reading of 0.08% or more they will automatically lose their license.  This is not true.  There are numerous technical and scientific defenses that can be used, including the failure to strictly comply with the California Code of Regulations and other laws and regulations which can and do result in administrative suspension actions being set aside. 

THE CREATION OF THE APS LAWS & HEARING

The drunk driving driver’s license suspension laws were created by and through the Drunk Driving Prevention Act of 1988. The driving under the influence driver’s license suspension laws were created to expeditiously remove the licenses of those persons accused of driving under the influence.  The California Department of Motor Vehicles calls this process “Admin Per Se” or “Administrative Per Se” and it took effect on July 1, 1990 (Stats. 1989, Chap. 1460 (SB 1623)).

APPLICABLE STATUTES GOVERNING THE APS PROCESS

The California Department of Motor Vehicles’ “Admin Per Se” hearings and its processes are conducted according to the provisions of the Vehicle Code and the Government Code, which contain the “California Administrative Procedure Act”.  They are also conducted in accordance with the due process clauses of the federal and State of California constitutions, as well as the applicable case law that has developed as a result of the creation of this statutory scheme.

Vehicle Code § 14112, in conjunction with Government Code § 11400(b), states that anything not covered by the Vehicle Code is to be controlled by the Administrative Procedure Act, contained in Government Code §§ 11370 et seq.  Additionally, Government Code § 11410.10 requires the Administrative Procedure Act to apply to the “Admin Per Se” process.

The “Administrative Procedure Act” contains an “Administrative Adjudication Bill of Rights” in Government Code §§ 11425.10 et seq.  The Administrative Procedure Act also contains an “Administrative Adjudication Code of Ethics,” in Government Code §§ 11475 et seq.  In the Administrative Adjudication Bill of Rights, the Legislature codified the licensees’ rights under the Fourteenth (14^th) Amendment of the United States’ Constitution and concomitant clauses of the California Constitution.  Specifically, Government Code §11425.10, provides:

(a)   The governing procedure by which an agency conducts an adjudicative proceeding is subject to all of the following requirements:

(1)   The agency shall give the person to whom the agency action is directed notice and an opportunity to be heard, including the opportunity to present and rebut evidence.

Despite the due process protections afforded every licensee under both the “Administrative Adjudication Bill of Rights” and the “Administrative Adjudication Code of Ethics,” the Administrative Procedure Act exempts the California Department of Motor Vehicles adjudicative process from the “separation of functions” provisions of the Act contained in Government Code § 11425.30.  This exemption is contained in Vehicle Code § 14112(b) and it allows hearing officers to serve as both the proponent of the evidence, e.g., the prosectuor, and the trier of fact, e.g. the judge and jury.

In addition to this abnormality in the law, even though Government Code § 11512(a) requires that a hearing officer be an administrative law judge, Vehicle Code § 14104.2(a) specifically states that there is no requirement that a California Department of Motor Vehicles’ hearing officer be an attorney.  For that matter, the hearing officer need not have any formal legal training.

A licensee can find additional “Administrative Per Se” hearing procedures in Title 13, California Code of Regulations, §§ 115.01 through 115.09, and §§ 440.00 et seq.  These sections relate to the conduct of the “Administrative Per Se” hearings under Vehicle Code §§ 14100 et seq.  Furthermore, because an “Administrative Per Se” hearing is a civil proceeding, the Code of Civil Procedure controls anything not otherwise covered by either the California Vehicle Code or Government Code. See: Arnett v. Office of Administrative Hearings (1996) 49 CA4th 332, 342, 56 CR2d 774).

DUE PROCESS: NOTICE & OPPORTUNITY TO BE HEARD

Before any suspension and/or revocation action can be imposed, every licensee must be afforded proper “notice” and “an opportunity to be heard”.  This notice is provided by and through the Administrative Per Se Temporary Driver’s License Endorsement that is served on the licensee upon his/her release from jail by the law enforcement official or agency that made the arrest.

California Vehicle Code § 14100(c) requires the notice of suspension to feature the notice of the right to hearing in a “prominent” manner.  In addition, the driver must be served a non-English notice when required, such as when the person only speaks Spanish.  If, at the time the licensee is released from jail the arresting officer fails to serve the notice on the licensee, the California Department of Motor Vehicles may serve the notice by mail.

Pursuant to Vehicle Code § 13380, law enforcement agencies are required to send, within five (5) business days, the appropriate sections of the DS-367 Form to the Department of Motor Vehicles’ Driver Safety Office within the law enforcement agency’s jurisdiction.  The DS-367 contains: (1) the Officer’s Sworn Statement and, if the licensee refused a chemical test, the Chemical Test Admonition; and (2) a copy of the Administrative Per Se Suspension/Revocation Order and Temporary License Endorsement indicating that the person arrested was advised of the pending administrative suspension action.

The arresting officer also sends the Department copies of the following documents: (1) the breath test results; (2) the California Driver’s License of the licensee that the arresting officer confiscated at the time of arrest; (3) a copy of the citation, if one was issued; (4) a copy of the police report, and, if applicable, (5) a copy of the traffic collision report.  If a blood or urine test was taken, the officer must immediately have the sample forwarded to the appropriate forensic laboratory.  The forensic laboratory then forwards the results of the chemical tests to the same Department of Motor Vehicles Driver Safety Office within 15 calendar days of the date of the arrest.  These are currently being sent electronically and are admitted into evidence as part of the record unless either party objects to their admission on some evidentiary ground.

Unless there is a deficiency in the documents, these documents, and these documents alone, serve as the basis upon which the Hearing Officer will make his/her determination of whether a suspension action can be imposed.  Because it is the documents, and not the testimony of any law enforcement officer, that will result in the imposition of a suspension action, it is important to hire an attorney who specializes in these types of administrative per se hearings to determine whether the Department of Motor Vehicles’ documentary evidence is legally sufficient to sustain a suspension action.  If the Department of Motor Vehicles’ documentary evidence is not legally sufficient to sustain a suspension action, the matter must be set aside and the license must be returned the licensee.  This would mean that no suspension action would be imposed.

For more on Administrative Per Se Hearings, and the process and laws relating to it, please see our other blog entries under the California Department of Motor Vehicles’ Administrative Per Se (APS) Hearing heading.

For general information on California Drunk Driving Law, or representation for a DUI charge, please contact the Law Office of Barry Simons at: 949-497-1729 or visit our website at: www.duilawyerorangecounty.com.

DISCLAIMER: This website and blog are intended for use by those seeking general information relating to California drunk driving law.  The reader should be aware of the fact that California DUI laws and legal procedures such as those presented in this website are constantly changing.  Consequently, any statute, law, or procedure discussed herein may have been changed as a result of drunk driving laws, judicial court decisions, or California Department of Motor Vehicles (DMV) license suspension rules, regulations, policies or procedures enacted since similar information was posted on this website.

Moreover, the information provided here is not intended to be legal advice and should not be relied upon as such because there is no substitute for consulting with a qualified DUI Specialist.  Accordingly, the reader is strongly advised to consult with a DUI Specialist and anyone with a legal problem should immediately obtain legal representation and advice from an attorney with extensive experience handling California DUI Defense cases. 

The Law Office of Barry T. Simons assumes no liability whatsoever for any use of this website or blog as it is provided for informational purposes only and is not intended to be legal advice from this office or from any attorney working for this firm.  Rather, the information contained in this website and blog are intended to initiate further, subsequent discussions between the reader having a specific legal problem and a qualified DUI attorney.  All readers are informed that no attorney-client relationship is intended nor formed by any use of this website or blog and all readers are advised, in line with the Rules of the State Bar of California, that the only way to form an attorney-client relationship with The Law Office of Barry T. Simons is to execute a binding retainer agreement.