DMV PROCEEDINGS
11-1
CHAPTER 11
DMV PROCEEDINGS
§11:10 THE ADMINISTRATIVE PER SE (APS) SUSPENSION ACTION
§11:11 Grounds for Issuance of an APS Order
§11:11.1 Diversion on Criminal Charge Does Not Preclude APS Action
§11:11.2 Use of Arrest Records by DMV Where Records Have Been Ordered Sealed
§11:12 APS Suspension Periods
Figure 11-1 APS Suspension Period Chart (offenses January 1, 2019 or later)
Figure 11-2 APS Suspension Period Chart (offenses July 1, 2010 to December 31, 2018)
§11:12.1 Concurrent vs. Consecutive Suspension Orders
§11:13 Restricted License Eligibility on APS Suspension
§11:13.1 First-Time Offender Over 21 With Excessive BAC
§11:13.2 Multiple Offenders with Excessive BAC
§11:13.3 Commercial License Holders And Commercial Vehicles
§11:13.4 Critical Need to Drive for Persons Under 21
§11:13.5 Grounds for Denial or Termination of Restricted License
§11:15 Record Must Be Updated in Sacramento DMV for Reinstatement
§11:20 PROCEDURE PRIOR TO ADMINISTRATIVE HEARING
§11:21 Service of APS Order
§11:21.1 Prominent Notice of Right to Hearing
§11:21.2 Foreign Language Notice
§11:22 Seizure (“Snatching”) of California License and Issuance of Temporary License
§11:23 Manner of Service
§11:24 Service of the Wrong Order
§11:25 Sworn Statement and Supporting Information Forwarded to DMV by Officer
§11:26 Blood and Urine Samples Sent to Forensic Lab; Lab Sends Results to DMV
§11:27 Automatic Internal Review by DMV and Factual Determination by DMV
§11:30 REQUESTING THE HEARING
§11:31 How to Request a Hearing
§11:32 Contents of the Hearing Request
§11:33 The 10-Day Deadline (the Law and Reality)
§11:33.1 Exceptions to the DMV’s 10-Day Deadline
§11:34 Telephone vs. In-Person Hearing Request
§11:35 Hearing Location
§11:36 Motion for Change of Venue
§11:37 Notice of Hearing
DMV PROCEEDINGS
California Drunk Driving Law 11-2
§11:40 THE RENEWED RIGHT TO A HEARING (OR SECOND HEARING)
§11:41 New Hearing as of Right
§11:41.1 Obtaining the Renewed Hearing
§11:42 New Hearing by Discretion
§11:50 PREPARING FOR THE HEARING
§11:51 Discovery
§11:52 No Right to Pitchess Discovery at DMV
§11:53 Request for Discovery
§11:54 Non-Compliance With Discovery Demand
§11:55 Subpoenaing Witnesses
§11:55.1 Manner of Service
§11:55.2 Fees for Government Employees
§11:55.3 Enforcing a Subpoena
§11:56 Testimony by Affidavit or Declaration
§11:60 THE HEARING PROCEDURE
§11:61 Continuances and “Reconvenes”
§11:61.1 Denial of Continuances
§11:62 Reopening Hearing and Receipt of Evidence After Hearing
§11:63 Dual Role: Prosecutor and Decision-Maker
§11:64 Grounds for Disqualification of Hearing Officer
§11:64.1 Voluntary Disqualification
§11:64.2 Challenge for Cause
§11:64.3 No Peremptory Challenge
§11:65 Hearing Officer Need Not Be an Attorney
§11:66 Right to a Prompt Hearing and Decision; Stay Order
§11:66.1 Rejecting the Stay Order
§11:67 Limited Power of DMV Hearing Officer
§11:70 RULES OF EVIDENCE
§11:71 The Applicable Rules of Evidence
§11:72 The Hearsay Rule
§11:73 Exception Might Permit Sole Use of Driver’s Hearsay Evidence
§11:74 Hearsay-in-Hearsay
§11:75 Hearsay Police Reports
§11:75.1 Hearsay Statement of Officer in Another Officer’s Report
§11:75.2 Hearsay Statement of Public Employee in Officer’s Report
§11:75.3 Hearsay Statement of a Private Citizen in Officer’s Hearsay Report
§11:76 [Reserved]
§11:77 [Reserved]
§11:78 Right to Continuance to Question Hearsay Declarant
§11:79 The Public Employee Records Exception
§11:79.1 The Statute—Evid. Code §1280
§11:79.2 Within the Scope of Duty of Public Employee
§11:79.3 Contemporaneous Recording Requirement
§11:79.4 Trustworthiness Requirement Is Presumptively Satisfied
§11:79.5 “At or Near” Requirement Is Not Presumptively Satisfied
§11:80 Official Notice
§11:81 Official Duty Presumption
§11:82 DMV’s Official Records
§11:83 Unsworn Statements
§11:84 Admissibility of Chemical Test Report
§11:84.1 Unsworn Chemical Test Report
DMV PROCEEDINGS
11-3 DMV Proceedings
§11:84.2 Non-Certified Chemical Test Report Received Electronically
or by Computer From Computerized Database
§11:85 Hearing Officer’s Experience, Technical Competence and Specialized Knowledge
§11:86 Evidentiary Privileges
§11:87 Preservation of Evidence
§11:88 Authentication of Documents
§11:89 Corpus Delecti Rule
§11:90 Testimony by Affidavit or Declaration
§11:91 Electronic Reports and Signatures
§11:92 Crime Lab Reports
§11:92.1 Crime Labs Don’t Need Licenses From DHS
§11:92.2 Crime Labs No Longer Subject to Inspections and Proficiency Testing Minimized
§11:92.3 DHS No Longer Will Keep Lists of Persons Approved to Conduct Forensic
Alcohol Testing
§11:100 THE EXCLUSIONARY RULE
§11:101 Exclusionary Rule Inapplicable Absent Egregious Conduct By Police
§11:102 Unlawful Speed Trap Rule
§11:110 AFFIRMATIVE DEFENSES
§11:120 EXCESSIVE BAC HEARING (.08% OR HIGHER)
§11:121 Summary of the Issues
§11:122 Analysis of the Issues
§11:122.1 ISSUE 1: Reasonable Cause to Believe Person in Violation of
VC §23152 or §23153
§11:122.2 ISSUE 2: The Person Was Arrested
§11:122.2.1 “Lawful” Arrest Required
§11:122.2.1(a) Officer Must Have Objectively
Reasonable Suspicion of
Traffic Violation
§11:122.2.1(b) May Arrest Be Found Lawful Where
Detention Is Not?
§11:122.2.2 What Constitutes an Arrest?
§11:122.2.3 Arrest That Becomes Detention Only
§11:122.2.4 DUI Checkpoints and Other Roadblock Detentions
§11:122.2.5 Speed Trap Arrest Is Not Legal
§11:122.2.6 Non-Presence Misdemeanor Arrest and the
§40300.5 Exception
§11:122.2.7 Officer Must Have State-Issued P.O.S.T. Certificate
§11:122.2.8 Military and Federal Police
§11:122.2.9 California Police Officer Outside His Employing Jurisdiction
§11:122.3 ISSUE 3: Person Was Driving With a 0.08% or Higher BAC
§11:122.3.1 Driving
§11:122.3.2 “ Vehicle”
§11:122.3.3 Must Be Direct Evidence of BAC
§11:122.3.4 Scientific Foundation: Official Duty Presumption and
Rebutting It
§11:122.3.5 The Three -Hour Presumption In VC §23152 Applies
§11:122.3.5(a) Rebutting Three-Hour Presumption
With Rising BAC Defense
§11:122.3.5(b) Use Of General Intoxication
Evidence To Bolster Or Reject
Retrograde Opinion
