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Things that Apply in Court, But Not In DMV Hearings
In law school and as a young attorney, one learns certain legal principles and evidentiary standards that apply in court.
No one will tell you that such laws and fundamentals do not apply in a DMV Hearing for a DUI.
This article is meant to list out and explain what does not apply in a DMV Hearing, but does in court.
- The Hearsay Rule: In law school, one learns that one safeguard that our legal system provides is that “an out of court statement is inadmissible to prove the truth of the matter stated therein” because the author of the statement cannot be questioned about how he or she observed or concluded something. It promotes the reliability of evidence, ensuring fairness, which is important when one’s legal rights are at issue and prison time, jail time, any deprivation of freedom, or money is at issue. However, in a DMV hearing, Government Code § 11513(d) states that in an administrative hearing, such as a DMV hearing, “[h]earsay evidence may be used for the purpose of supplementing or explaining other evidence but over timely objection shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.” What this means is that hearsay is always admissible at a DMV hearing and may be the sole basis for a finding if the hearing officer, who is not an attorney, overrules an objection. The irony is that the hearsay at issue may be used to explain other hearsay.
- The Exclusionary Rule: It is fundamental in any proceeding where one can be punished that the evidence to be used is obtained legally. The state should not, in other words, profit from its own wrong. The DMV seems to acknowledge this in the issues it must find at most DMV hearings, specifically, that there was a lawful arrest. However, the Fourth Amendment protection against improper search and seizure only applies when one is at risk for loss of liberty, i.e., custody time. Nonetheless, this is problematic in the DMV context because a lawful arrest can be based upon an officer’s good faith, but mistaken belief, for example when a police officer arrests someone based on erroneous information that a car is stolen. In such a case, with a DUI arrest that followed, the DMV refused to apply the exclusionary rule. Park v. Valverde (2007) 152 Cal. App. 4th 877 (refusing to apply the exclusionary rule because the conduct was not egregious). However, we believe the exclusionary rule should be applied always in DMV hearings because the same arrest that is used for evidence in a DMV hearing is the evidence used in a criminal matter, where one can be jailed or imprisoned. Moreover, the DMV is a government agency tasking with deterrence and retribution, so it should be governed by the same standards as police. See Michigan v. Clifford (1984) 464 U.S. 287 (holding that warrantless entry into fire damaged home by a fire inspector violated Fourth Amendment); Camara v. Municipal Court of San Francisco (1967) 387 U.S. 523 (holding that administrative searches conducting by housing authority must comply with Fourth Amendment).
- Pitchess Evidence. Pitchess evidence is evidence that a law enforcement officer was administratively punished or disciplined for falsifying a police report, fabricating evidence, destroying evidence, using excessive force, racial profiling or other improper conduct. In a DUI case where defendant is often impaired, one may think that the police are more likely to engage in such conduct because the suspect may not remember such conduct or recognize it as it happens. Therefore, such evidence of a “dirty cop” may be relevant in a DMV Hearing to impeach a police officer’s credibility.However, in Brown v. Valverde (2010) 183 Cal. App. 4th 1431, the court held that Pitchess discovery is not available at a DMV hearing.
- Corpus Delicti. The “corpus delicti” rule states that there must be evidence other than defendant’s own admission to convict defendant. As most DUI police reports rely upon defendant admitting he or she drank prior to driving, including how long prior and how much, excluding such information, particularly in a “refusal” to submit case, would be good and, one may argue only fair. However, the corpus delicti rule is not applicable to DMV hearings. Corrigan v. Zolin (1996) 47 Cal. App. 4th 230.
- Duress and Necessity as Affirmative Defenses. If one drives while drunk because the patrons of a bar where one is at are about to beat that person up, such driving may be regarded as under duress and as a necessity. This would seem to excuse such driving and no DMV action would be justified.However, in Foster v. Snyder (1999) 76 Cal. App. 4th 264, the defenses of duress and necessity were held inapplicable to DMV actions. The reasoning was that defendant’s mental state has no relevance to an administrative action because it is not meant to punish. We think this reasoning is highly questionable because losing one’s driving privileges is arguably a form of punishment.
