DMV’s Manual says when a DUI lawyer “rebuts the official duty presumption by showing there was a violation of Title 17 of California Rules of Regulations, DMV then has the burden to show the test results are reliable even though there was a violation of Title 17.” Stipulations and Attorney Objections are further discussed below and in this video.
“12.151 Stipulation to Issues
A stipulation in an APS hearing is an agreement relating to one or all of the issues to be decided. The respondent or respondent’s representative may agree on record with the department’s position on any or all issues. The DUI hearing officer may also agree with the attorney’s position and stipulate to an issue. Neither side presents evidence on a stipulated issue. For example, the attorney may believe the officer had a good reason to stop and arrest the driver; however, believes the officer’s admonition was inadequate, excusing the refusal. In that case, the attorney may wish to stipulate to issues 1 and 2, reasonable cause and lawful arrest.
Do not permit testimony or other evidence on a stipulated issue. For example, if the law enforcement officer is present, and the attorney stipulates to issues I and 2, reasonable cause and lawful arrest, do not question the officer regarding these issues. Ask questions to lay the foundation for the DS 367/ DS 367M, describe the admonition and refusal. If the attorney begins questioning a witness about stipulated issues, ask if the attorney wishes to withdraw their stipulation. If the attorney withdraws a stipulation, fully explore that issue on the record.
Carefully examine the DS 367/DS 367M before entering into a stipulation. You may then agree with the attorney to stipulate to certain issues.
If the contested issue in a refusal hearing is due to confusion about the admonition, obtain additional information regarding the driver’s degree of intoxication. If the issue cannot otherwise be resolved, withdraw the stipulation and obtain testimony and other evidence on issues 1 and 2.
There is a close relation between the reasonable cause issue and the lawful arrest issue. It would be unusual to accept a stipulation to only one of these issues since it would make the remaining issue difficult to determine factually.
Avoid accepting stipulations when the driver does not have an attorney present and consider an admission from the driver on any uncontested issue. If the driver later appeals the case in court, a court looks very carefully at any stipulation from an unrepresented driver.
Make the stipulation in the form of a finding and read into the record early in the hearing. Enter a stipulation into the record as follows:
1. It is stipulated that Officer had reasonable cause to believe that (respondent) was driving a motor vehicle in violation of §23136, §23140, §23152, or §23153 of the Vehicle Code.
2. It is stipulated that (respondent) was lawfully arrested, and or detained.
3. It is stipulated that (respondent) was driving a motor vehicle with a BAC of 0.08%, (.04% .01%) or greater, by weight.
NOTE: An admission may cover only part of an issue; the driver may admit to driving, but not being under the influence. (See “Admissions” in DS Manual Chapter 19, RULES OF EVIDENCE)
The attorney, the driver, or the department may object to a statement made or a document entered as evidence during the hearing. When ruling on the objection, it is not necessary to give a reason unless questioned by the driver or attorney. If you give a reason and it is not legally correct, you may be opening the door for a long discussion in an area where the attorney may be an expert. If the attorney presses for the reason, state, “I have ruled, Counsel. Let us proceed.” Even if the explanation is not stated, be sure that the reason can be clearly articulated if necessary.
An objection to the entire contents of a document, such as the DS 367/DS 367M, based only on hearsay should be overruled as long as it qualifies as a public employee exception to the hearsay rule. However, there may be specific parts of the DS 367/DS 367M or other documents that may draw an objection from an attorney. Expound upon broad objections to the documents and clarify for the record.
The writing was:
a. made by and within the scope of duty of a public employee; AND
b. made at or near the time of the act, condition, or event; AND
c. the source of information and method and time of preparation were such as to indicate its trustworthiness.
Additional objections that may be heard in APS cases:
• Hearing officer is not an attorney, or is biased and should not conduct the hearing. See DS Manual Chapter 2, DRIVER SAFETY CONTACTS
• Lack of foundation (due to lack of probable cause), officer did not observe collision. (See 12.067 Reasonable Cause To Believe The Person Was Driving A Motor Vehicle and §40300.5 VC that provides for an arrest without warrant.)
• Lack of foundation: breath test results unreliable. Must present evidence that the tests) was not performed in compliance with California Code of Regulations (CCR), Title 17.
When introducing the department’s exhibit, asking the attorney if they object is not necessary; however, the unrepresented driver may be unaware they may object and given the opportunity. Objections are not ignored and the record or final report should reflect a ruling.
12.153 Driver Rebuts Issue
A person may refute an argument or issue, by way of contrary proof in a hearing. The person desiring to rebut the department’s evidence must present their own evidence. For example, the driver may rebut the official duty presumption by showing there was a violation of Title 17 CCR for failure to properly maintain the breath test equipment.
When there is such a rebuttal, the department has the burden to show the test results are reliable even though there was a violation of Title 17.”
[DMV Driver Safety Manual, Chapter 12, page 12-66 through 12-68]