DMV’s DUI APS decision-making process

The moment of truth approaches a San Diego DUI attorneys’ DMV administrative hearing. Time for a decision. What does the California Manual say for the Hearing Officers to do? What about credibility issues when witnesses say different things? Lawyers quote what DMV is taught to do.

“12.164 Closing the Hearing

Due to the complexity and amount of testimony and evidence in many APS hearings, particularly those involving expert witnesses, the hearing officer will need to deliberate and carefully review the record before making a decision. However, in hearings where little evidence has been offered, or which consist merely of legal argument, a request for a restricted license, or the evidence warrants a set aside, it may be appropriate to announce the decision on the record as follows:

• “The department has no further evidence to present at this time. Does counsel (or driver) have any evidence they would like to have considered at this time?”

• “It is now my duty to make findings on the issues under consideration and prepare and render a decision on behalf of the Department of Motor Vehicles.”

• “I find that (make a specific finding on each essential issue, both statutory and non statutory). My decision is (state decision).”

• If the decision is adverse to the driver: “You have the right to request a departmental review of this decision provided you do so within 15 days of the effective date of this decision. You may request a review at this time by signing a Request for Review of Decision (OS 2426) form or if by telephone, send me a written request, which will be forwarded with my report.”

NOTE: If decision is to set aside, this paragraph does not apply.

12.165 MAKING THE DECISION
12.166 Weighing the Evidence
When there is conflicting oral or written evidence, why assign more weight to one item of evidence and less weight to another? Review Chapter 19, RULES OF EVIDENCE, for general information about weighing evidence.

12.167 Testimony: Proof of Truthfulness Considerations
A hearing officer may consider in determining the credibility of a witness, any matter that has a tendency in reason to prove or disprove the truthfulness of the testimony at the hearing.

Including, but not limited to the witness’:
• demeanor while testifying and the manner in which testified.
• character of the testimony.
• extent of capacity to perceive, recall, or communicate any matter about which testified too.
• extent of opportunity to perceive any matter about testified too.
• character for honesty, veracity, or their opposites.
• existence or nonexistence of a bias, interest, or other motive.
• statement previously made by them that is consistent or inconsistent with prior testimony.
• existence or nonexistence of any fact testified by them.
• attitude toward the action in which they testify or toward the giving of testimony.
• admission of untruthfulness.

12.168 Resolving Credibility
Often a hearing officer will believe one witness more than another. Explain the reason for such a belief in the report. Avoid explanations that are unreliable assumptions, such as “an officer wouldn’t lie” or “innocent people take the test”. You must state facts to support the reasons you find one particular witness more believable or credible than another. Sometimes it is difficult to decide which witness to believe. The following ideas may help when weighing the driver’s credibility against that of a witness’s testimony or written statement:

The DS 367 and the driver’s testimony are often similar. When you question the driver, analyze the details the driver remembers. Does the driver only remember details that help their case? Do the facts on the DS 367 clearly contradict the driver’s testimony, or are they sufficiently vague and ambiguous to lend plausibility to the driver’s testimony? In a 0.08% BAC case, are all the components of reasonable cause present and established by the evidence? For example, on the first component, is there sufficient evidence to believe the officer had probable cause to stop and contact the driver, or is there only a brief statement of “vehicle weaving”? If the evidence is insufficient whether the officer observed an illegal or unsafe act, it may be necessary to subpoena the officer. See MacDonald v. Gutierrez, 2004 32 Cal.4th 150, S 111253 when reviewing the probable cause statement on the DS 367.

In a refusal case, the driver may fail to recall or admit to having had some alcohol to drink, but clearly remembers the admonition was not read. Ask questions of the driver about details from the admonition statement. From the answers, you may gain some insight into the driver’s credibility. Also, consider the DS 367 or direct testimony regarding the admonition. Did the officer read the admonition verbatim from a document or try to recite it from memory? How accurate is their memory at the hearing? Was the document inaccurate or outdated?

Did the officer make at least the minimum statement?

• The chemical test is required by law ..
• The officer believed the driver was under the influence of
• alcohol and the test is to be of blood or breath, or
• alcohol and drugs and the test is to be of blood, breath, or urine
• The driving privilege will be suspended if the test is not taken.
• There is no right to have an attorney present before taking the test (when mentioned by the officer, or requested by the driver).

Consider the reliability of testimony on both sides of this issue.

Did the driver refuse or tell the officer that they were incapable of taking any of the field sobriety tests? In taking the PAS test, does the driver recall any mention that the test was to assist the officer, but that it could be refused? Does the driver fail to recall any reference by the officer to the requirement to take a chemical test? Is the driver trying to raise the defense of “officer-induced confusion,” that “only a PAS test was required”? It may be necessary to subpoena the officer to resolve such questions. If the driver was confused, was it apparent to the officer, and did the officer acknowledge and address the confusion, or ignore it? The officer must attempt to resolve any such confusion.

When the driver’s record has a DUI conviction, an earlier refusal, or a 0.08% excessive BAC action, ask the driver, “Have you ever had a conviction of driving under the influence of alcohol or drugs?” Test the driver’s knowledge: ask the driver if they had taken a test at that time, and, if the answer is yes, ask about the results of the BAC. Not remembering something is not denying it. Make sure your questions separate what the driver or officer denies from what they remember. A good way to begin questions is, “Tell me what you remember about…”

When a witness hesitates, stutters inconsistently (only to certain questions), gives evasive answers, or changes their testimony, you may list these actions as reasons for not believing that person’s testimony.

Ask yourself, why the officer or the driver sounds untruthful and state the reasons that lead to the credibility finding in the report. The weight of the evidence must go in one direction or the other.”

[DMV APS Manual, Chapter, pages 12-74 through 12-76]

Here’s what frequently happens, especially if the San Diego California DUI / DMV defense attorney calls an expert:

Once the DMV establishes the prima facie case with the documents that establish driving, lawful arrest, and a BAC over 0.08 within 3 hours, they have met their burden.

Then you have the burden to provide evidence sufficient to show that official standards were in any regard not followed (or the facts aren’t what they claim).

This then shifts the burden back to the department to establish without regard to any official duty or other presumptions that the weight of the evidence still supports the decision to suspend.

The burden on the defense does not require the marshaling of complex scientific evidence (but it also doesn’t prevent it either).

Once the burden has shifted back to the department, they are legally supposedly to provide additional evidence to re-establish the weight in their favor.  [Davenport v. Department of Motor Vehicles(1991) 228 Cal.App.3d 252; Imachi v. Department of Motor Vehicles (1992) 2 Cal.App.4th 809; Najera v. Shiomoto 241 Cal.App.4th 173 (2015)].

The DMV tries to circumvent this law by suspending based on boilerplate language probably written by California DMV Legal to find the defense evidence insufficient to shift the burden in the first place, as:

A. Speculative,

B. Subjective intepretation of the evidence, and/or

C. Insufficient because the expert did no studies on the subject, did not interview the subject, did not rely on any specific literature, etc.

A number of California DMV hearing officers simply do not understand that the burden on the defense is as low as the above cases indicate.

California DMV hearing officers tend to think that unless the defense is able to say that it is “more likely than not” that the BAC was under 0.08, that DMV prevails.

DMV tends to feel the defense expert must say that it is probable, not just possible, that the BAC was under 0.08 at the time of driving.

DMV further believes any possibility on their side outweighs the probability on the defense side (which is wrong).

DMV is lastly able to use driving, FST’s, and other physical symptoms to counter the clear indications of a rising BAC from drinking patterns or PAS to blood or breath tests. [Coffey v. Shiomoto. 60 Cal.4th 1198 (2015)].