At a DMV Administrative Per Se Hearing in California, DMV’s Manual teaches a Hearing Officer how to conduct examination of the witnesses, what questions to ask, how DUI lawyers get in the mix, how to attack a driver’s expert, and related preparation.
“12.156 Hearing Testimony
An objective of receiving testimony is to make a clear record. Receiving testimony in the APS hearing need not follow a rigid pattern. The hearing officer has discretion to choose the pattern best suited to each particular hearing. The following pattern is familiar to most hearing officers and you may use it in APS hearings:
Direct Examination: is the questioning of a witness by the party who called him or her, in a hearing. Direct examination is to elicit evidence in support of facts that will satisfy a required element of an issue. Question the person to bring out their knowledge of the facts regarding the suspension or revocation. An officer’s testimony should cover all issues, unless there are stipulations. The respondent may ask leading type questions during their “direct” examination of the officer because the officer is an adverse or hostile witness.
At the hearing, the hearing officer may ask the officer:
• “Did Mr./Ms. complete a blood or breath test?”
• “What was the result of that test (if known)?”
• If the breath test was given, “did you personally administer or observe the driver taking the breath test”? If no, “who did”? “By whom are you employed?”
• “How many samples did you take?” If more than two, “why did you take more than two”? “Were there two results within 0.02% of each other?”
Cross-Examination: is the interrogation of a witness by a party other than the direct examiner. It is preceded by direct examination and may be followed by redirect examination. Cross examination is not limited in scope to direct examination as provided for in §11513 of the Administrative Procedure Act (APA). Unlike in direct examinations, leading questions are permitted in a cross-examination, given the witness is presumed to be unsympathetic to the opposing side.
The chief purpose of cross-examination is to test the credibility, knowledge, and recollection of the witness. The examination is to elicit favorable facts from the witness, or to impeach the credibility of the testifying witness to lessen the weight of unfavorable testimony. Cross-examination frequently produces critical evidence in hearings, especially if a witness contradicts previous testimony.
If the driver is unrepresented, ask; “Do you have any questions you want to ask the officer?” If the driver has no questions and only wants to make a statement, ask the driver to wait until he presents his case.
Redirect: The respondent or hearing officer questions the witness again, to clear up questionable points of testimony.
This is an examination of a witness by the “direct examiner” subsequent to the cross examination of the witness. Any issue that needs clarification following cross examination, you now question the witness further. Simply say, “I want to now go back and ask a question about for clarification.” When the attorney raises an essential additional issue, you must cross-examine on the issue and make a finding on it.
Recross: The driver or attorney or hearing officer questions the witness again, to elicit additional testimony.
The hearing officer should introduce and question each of the department’s witnesses in a similar way. Question witnesses so they can narrate their stories, describing what they saw, heard, or did in the order the events occurred.
This is an examination of a witness by the “cross-examiner” subsequent to a redirect examination of the witness. This is an opportunity to ask additional questions of the witness following redirect.
“Any further questions of Officer now, counselor?”
Ask questions that can be answered in phrases or a short sentence or two, rather than a simple “yes” or “no.” Leading questions are permissible on cross examination, or on direct examination if the examinee is a hostile witness. Asking “what, who, where, when, why, or how” is a good way to extract information. Often asking, “And what happened next” is effective.
Drivers may testify on their own behalf or have other witnesses testify. Questioning usually follows a pattern, except when the driver or attorney begins the questioning. Here is the typical pattern when the driver testifies:
Direct Examination: The attorney questions the driver to bring out their knowledge of the facts that are favorable to their case.
Direct Testimony: The driver may present facts unassisted or byway of direction from the hearing officer. When assisted by the hearing officer, the driver’s direct testimony and the hearing officer’s cross-examination are often combined.
Cross-Examination: The hearing officer questions the driver to resolve any conflicts with information contained in the Officer’s Statement or with the officer’s or any witness’ testimony.
Redirect of Driver: Attorney and hearing officer continue with questions of driver and any other witnesses to resolve any conflicts in the testimony or other evidence.
Recross: The hearing officer continues with questions of the driver and any other witnesses to resolve any conflicts in the testimony.
A driver can legally refuse to testify in a court of law on a criminal matter under Fifth Amendment rights of the U.S. Constitution. This also occurs when the driver is claiming a privilege, which is a right to privacy in verbal or written communication. Right to such privacy legally exists as privileged communication between a husband and wife or attorney and client, etc. (See “Privileged Communications” in Chapter 19, RULES OF EVIDENCE.)
It is not usually necessary to insist on testimony from the driver whether represented by an attorney or not at a hearing. Represented drivers may rely on their attorney to present evidence on their behalf, if the driver chooses not to appear for the hearing. Any testimony given by the driver or other witnesses, or statements contained within the DS367/DS 367M, usually provide sufficient evidence to support a findings and decision. Review “Compelling Testimony” in Chapter 19, RULES OF EVIDENCE, if a driver refuses to testify.
When questioning witnesses, remember that the information you gather now, and conflicts you resolve now, will help you make findings later. To resolve conflicts in testimony or between testimony and the DS 367 or other reports, review Resolving Credibility (See 12.173).
12.157 Direct Examination of Officer
Usually, the officer is subpoenaed by the department to clarify inadequacies in the reports. The sequence of examination of witnesses is your choice; however, if the department subpoenaed the peace officer, the hearing officer should question the officer first.
When the officer is present, do not rely on their written statement, or other written evidence, to prove any issue, unless you are certain it will stand alone. For example, a probable cause statement may give only a concise description of facts supporting the issues but is silent on an additional issue not apparent at the onset. The officer’s testimony should thoroughly cover each issue.
Gaps in the evidence are best resolved by following the actual sequence of events during examination of the officer. The questions maybe structured along the following lines: ‘ “I now call Officer _ to testify.”
• “Officer, will you please state your name and badge number for the record?”
• “By whom are you employed and for how long now?”
• “What was your assignment on the night of the event?”
• “On (date of arrest) were you employed by the (name of enforcement agency)?”
• “Let me show you this document (DS 367) labeled as Exhibit # 1. It contains a signature at the bottom. Do you recognize the signature? Whose signature is it?”
• “Did you complete and send, or cause to be sent, to the department this document marked Exhibit #1?”
• “Was the document completed at or near the time of the event?”
• “Were the events fresh in your mind at the time the report was written?”
• “Is the information in the report true and correct to the best of your knowledge? If not, please indicate what is incorrect and why.”
• “Exhibit #1 concerns a Mr./Ms._. Do you recognize Mr./Ms._ as being the subject of this report and present at this hearing?” If officer points to driver, “let the record show that Officer has identified Mr./Ms._ as the subject of Exhibit # I.”
• “In the performance of your duty, did you come in contact with Mr./Mrs. _?”
• “Please describe the events which led up to that contact.”
• “Upon contact, what did you observe? Based on this observation, what did you do next?”
• “As a result of your observations, did you come to any conclusions?”
• “Based upon this conclusion, did you arrest Mr./Mrs .. _?”
• “Under what section of the Vehicle Code was the arrest made?”
• “If the arrest was per §40300.5 VC: Which section was the driver placed under arrest for?”
12.158 Expert Witnesses
Most expert witness testimony given at APS hearings is usually by Forensic Alcohol Toxicologists. These experts are usually witnesses for the driver and the attorney. The driver will be expected to establish the expert’s qualifications and expertise. The driver or attorney will question the expert through the “voir dire” method of examination. The expert’s “curriculum vitae” may also be presented.
The minimum requirements should be established for the record:
• Education (where, when, what degrees or credentials) related to field of expertise.
• Employment in the area of forensic toxicology.
• Experience in the field of.forensic toxicology.
• Qualification as an expert in criminal court: Which courts, and how many times have they testified as an expert?
• Knowledge of Title 17 of the California Code of Regulations (CCR).
• Knowledge of chemical testing procedures, devices, and methodology.
The hearing officer should ask questions to establish and determine the qualifications and expertise of the witness. When the hearing officer is satisfied with the witness’ qualifications, they should be recognized as an expert for the record. Do not stipulate to the witness’s qualification as an expert. Make a record for every case of the expert’s qualification.
Information about expert witnesses and examination of these witnesses is covered in Chapter 19, RULES OF EVIDENCE.
12.159 Attorney Examines Expert Witness
When a witness is established as an expert in forensic toxicology at an APS hearing, the attorney will conduct a direct examination in which they are allowed to ask leading questions. The questions should be within the witness’ area of expertise, and, if not, the hearing officer shall ask the attorney to lay a foundation or conduct additional voir dire.
During direct examination of the expert by the attorney, the hearing officer should note lengthy and technical testimony that may describe only part of the procedure. Experts may make statements that are overly all inclusive, such as “in the majority of cases this occurs;” implying information to the contrary exists. If the expert quotes percentages of findings, ask questions during cross-examination that covers this issue.
12.160 Expert Witness Credibility
The hearing officer should watch for signs of partiality in the expert’s testimony related to their credibility as a witness. Impartiality is not always present in expert testimony. When it is not evident, the testimony may be suspect to credibility considerations. (See 12.173 Resolving Credibility) It may occur that the testimony is credible, but incomplete during cross-examination. The hearing officer needs to ask questions that may have gone unanswered during the prior examination. Ask questions to elicit a description of any possible “untold” facts.
The following may help in the cross-examination: (See 12.156 & 12.159)
• Address one line of evidence or argument at a time to avoid confusion.
• Ask questions that may reveal whether the expert’s knowledge of the driver’s drinking pattern and BAC calculations are based upon hearsay.
• Distinguish if the expert’s testimony presented as fact is actually speculation as to what may have occurred during the chemical testing.
• Fully explore any tendency of the expert to advocate the attorney’s case and note this for the record. You may use this in a finding of fact in your report as a basis of dismissing the expert’s testimony, but it must be a matter of record, and not from your personal knowledge.
12.161 Driver’s Witness(es)
Allow the attorney to present their own witness(es), including the driver. They should be presented and questioned in a way similar to that of the department’s witness( es). If an attorney represents the driver, they will conduct a direct examination. As the department’s representative, you can then cross-examine. If the attorney does redirect, you may recross.
The unrepresented driver is allowed to present and question any relevant witness(es). Allow the driver to testify in a narrative form. The hearing officer’s examination should include the exploration of the issues and driver’s statements affecting their credibility. This approach will help you weigh the evidence and make your decision.
If the driver declines to testify, or is advised not to by their attorney, advise the driver that it will be your duty to make findings “based on the documents and testimony (if any) which are in evidence”. Reference should also be made to §11513(b) of the Government Code, which permits calling and examining the respondent as if under cross-examination, even though there has been no testimony on their behalf.
12.162 Questioning Other Witnesses
You may present and question any other witness(es) In the same order: direct examination, cross-examination, redirect, and recross.
12.163 Recalling a Witness
Depending on the circumstances of each case, witnesses should not be dismissed until after closing the hearing. They may be excused from the hearing room and wait in the lobby. Clarification of their testimony may be needed to clarify an issue or question raised and not covered in the witnesses’ testimony.
NOTE: The hearing officer must recognize when the burden has shifted and rehabilitate the evidence to support the issues.
[DMV Driver Safety Manual, Chapter 12, APS Hearings, pages 12-69 to 12-74]