DUI defense attorneys are frustrated with the incorrect legal language of the Department of Motor Vehicles on the issue of what DMV has to prove v. what DMV now has to prove when it comes to the Issue of Driving.
A San Diego driver does not have to prove he or she was not driving.
The DMV, at all times, has the burden of proof, by a preponderance of the evidence, to prove that the respondent was driving. Every attorney in California probably knows this. And even though DMV hearing officers are not lawyers, they do not have to be.
Lawyers point out DMV should not limit itself per their Manual and deny persons driving privileges based on requirements that are not part of California law, e.g. when DMV suggests these are the requirements before a Hearing Officer will take no suspension action when the evidence:
1. Shows the accused respondent denied driving;
2. There was no observed driving; AND
3. There is no circumstantial evidence of driving.
Since a person accused of DUI has the right to remain silent, #1 is unfair. What about the person who says nothing and who was not driving in San Diego county?
Basically unless the person denies driving, even a slight but normally insufficient amount of circumstantial evidence of driving will allow San Diego Driver Safety Unit to suspend one’s license?!
Yes DMV must still prove volitional movement in California. Mercer does not say the person must deny driving!
A San Diego person can be lawfully parked but because they did not observe driving, DMV can still suspend? That makes no sense. Oh, and it’s not the law in California, as any lawyer will tell you.
Sorry DMV, it’s not just attorneys who knew you went too far with this language in your Manual by making it sound like 3 requirements exist in California by capitalizing in your manual the word “AND“!
Evidence should be objectively evaluated under the requirements of the law, not a state governmental manual.