Officer’s Refusing to Testify in DUI Administrative Hearing

Posted by on
Share:Share on FacebookTweet about this on TwitterShare on Google+Share on LinkedInEmail this to someone

Following an arrest for driving under the influence, the driver will have an opportunity to request an administrative hearing before the Department of Motor Vehicles. The request for an administrative hearing must be made within 10-days following an arrest. In Fresno County, an individual should call the Department of Motor Vehicles at (559) 445-6399. Oftentimes the Department of Motor Vehicles will inform the licensee that they only need to request a hearing if they intend on challenging the license suspension. From experience, this is simply a tactic by the Department of Motor Vehicles to dissuade an individual from scheduling a hearing.

As we have mentioned in the past, an administrative per se hearing should be scheduled in all instances following an arrest for driving under the influence in Fresno, Madera, Kings, or Tulare County. Once the request is scheduled the licensee will be provided with the police reports and other relevant items relating to the incident. If an attorney has been retained, the attorney can schedule the hearing and verify that the license suspension will be stayed pending the outcome of the hearing. An experienced DUI Defense Attorney will obtain all of the relevant information relating to the DUI arrest and issue subpoenas for the arresting officer. It is also crucial to issue subpoenas to the law enforcement agency that made the DUI arrest. In all cases the arresting officer should be subpoenaed. While it does cost $150.00 to subpoena the arresting officer, the benefit of having the arresting officer present at the hearing far outweighs the cost. An experienced DUI Defense Attorney will subpoena the arresting officer unless there is a fatal flaw in the documentary evidence that should result in the license suspension being set aside.

At the hearing, the Department of Motor Vehicles is required to establish by a preponderance of the evidence the following issues (Vehicle Code, § 13357):

  1. That the peace officer had reasonable cause to believe that the person had been driving a motor vehicle in violation of Section 23136, 23140, 23142, 23153, or 23154.
  2. That the person was placed under arrest or, if the alleged violation was of Section 23136, that the person was lawfully detained.
  3. That the person was driving a motor vehicle under any of the following circumstances:
    1. When the person had .08 percent or more, by weight, of alcohol in his or her blood.
    2. When the person was under the age of 21 years and had .05 percent  or more, by weight, of alcohol in his or her blood.
    3. When the person was under the age of 21 years and had .01 percent or greater, as measured by a preliminary alcohol screening test, or other chemical test.

The second issue that must be determined at the administrative per se hearing is whether the individual was lawfully placed under arrest. In order for an arrest to be lawful, the arresting officer must have probable cause to arrest for driving under the influence. In most instances, the officer will complete a DS-367 form that sets forth the time of the initial detention, time of the arrest, and the time the chemical test was conducted. With respect to the arrest, the officer will almost always check all four boxes provided on the DS-367. These four boxes are, unsteady gait, bloodshot/watery eyes, slurred speech, and odor of alcohol. In almost all arrests for driving under the influence the officer will simply check all boxes, regardless of whether the observations were indeed made.

Following the arrest for driving under the influence the officer will also, in most instances, prepare a police report. This police report is typically a fill in the blank report where the officer will include the driver’s responses to questions regarding how much they had to drink and when they last consumed alcohol. The police report will also include the results of the individual’s performance on the field sobriety tests. In our experience, most officers do not correctly perform field sobriety tests and simply claim that the driver failed the tests.

An individual’s performance on the field sobriety tests is important at the administrative per se hearing, and related criminal proceeding, because the officer will claim that the arrest was made based on the driver’s failure to “successfully” perform the field sobriety tests. This ties directly into the second issue that must be determined at the administrative per se hearing, i.e., the lawful arrest.

At the hearing, an experienced DUI Defense Attorney will cross-examine the arresting officer regarding the driver’s performance on the field sobriety tests. The officer will usually agree that the decision to arrest was made based on the driver’s performance on the field sobriety tests. Logically if the arresting officer made the decision to arrest based on the driver’s performance on the field sobriety test, one would think that the officer would answer questions relating to the driver’s performance on the tests. Interestingly, a recent trend appears to be occurring in administrative hearings where the arresting officer will refuse to explain how the driver failed to successfully complete the test. The law enforcement officer will object to the question claiming that the question is beyond the issues to be determined at the hearing. In some instances the hearing officer, who acts as judge and prosecutor, will agree, albeit incorrectly, with the officer and not allow the driver, who may lose his or her license, question the officer in detail about the field sobriety tests. However, some of the more informed hearing officers will inform the officer that it is clearly a proper line of questioning and request that the officer answer the questions.

At a recent administrative hearing, the arresting officer, a member of the Fresno Police Department, refused to answer questions regarding a client’s performance on the field sobriety tests. The officer would only testify that the driver performed “poorly” on the tests without providing an explanation as to how the driver’s performance was poor. After being instructed by the administrative hearing officer to respond to the questions, the officer again refused to respond. This officer stated that he would only answer the questions in court. Based upon the officer’s refusal to answer the questions, the hearing was terminated.

Following the hearing a request to set-aside the license suspension was made based on the officer’s refusal to respond to questions directly related to the issues that must be determined at an administrative per se hearing. While a licensee has an automatic right to subpoena the arresting officer, this right is meaningless if the officer appears at the hearing and refuses to testify. It will be interesting to see if the Department of Motor Vehicles determines that the officer’s refusal to respond to questions at the hearing violated the driver’s due process rights. In the future, when an officer refuses to testify, a request to hold the officer in contempt should be made.

Situations like this arise at administrative hearings on a weekly basis. This is why it is crucial to hire an experienced Fresno DUI attorney if you have been arrested on suspicion of driving under the influence. An experienced DUI attorney will always request an in-person administrative per se hearing, subpoena the arresting officer, and obtain all of the information relevant to your defense. If you have been arrested on suspicion of driving under the influence, contact an experienced Fresno DUI Attorney today.

If you have been arrested in Madera County, contact an experienced Madera DUI Attorney.

If you have been arrested in Tulare County, contact an experienced Tulare DUI Attorney.

Only an experienced DUI Defense Attorney will take the necessary steps to protect your interests.

If you have any questions regarding the services provided at the Law Office of Gregory W. Fox,
or would like to schedule your free initial consultation, please contact us today at (559) 222-5800. Hablamos español.