Issues Not Raised at the DMV Hearing Are Waived
One of the most frustrating aspects of my practice is seeing an issue that I know will win a DMV writ, only to find that the attorney or motorist handling the hearing failed to state the right objection or raise the issue at the time. You see—with rare exceptions—to get you a DMV writ, I can only raise issues that were raised in the hearing. If an issue is overlooked during the hearing, it is likely waived forever. Thus, even where DMV took your license wrongfully, they may get away with it if you don’t call them on it during the hearing.
Of course, the hearing officer is going to overrule your objections (after all, it was that same hearing officer who offered the documents you’re objecting to), but at least your objections will raise the issue and might preserve the record for a DMV writ.
The "Holy Trinity" of DMV Objections
No basic article on DMV objections could hope to cover all the scenarios faced at DMV hearings, but there are recurring issues that suggest a three-part objection model.
- The first and reining champion of DMV objections is Hearsay. If you do nothing else at a DMV hearing, say the word "hearsay" as an objection to every document. You’ll be right, as every document DMV introduces contains hearsay. While you’re at it, add "multiple hearsay" as well, to cover those instances where there is hearsay-within-hearsay.
- The second objection that applies to almost every hearing is that the document "states legal conclusions." An example is where an officer writes that you "violated the basic speed law." This kind of statement does not convey any factual information and would be insufficient to support a legal stop of your car.
- Finally, another frequent objection is that the documents contain evidence that "lacks foundation." Many facts in police reports, particularly results of preliminary breath tests and chemical tests, have scientific foundations that must be laid for the results to be admissible. If the officers do everything right, the reports will usually provide that foundation. But officers don’t always do everything right, and this objection may just carry the day for you.
There are two common hearing officer practices that ought to be objected to in the strongest terms. The first is the self-granting of a continuance without good cause, and hearing officers do this all the time. Either they didn’t do the preparation for the hearing or a witness fails to appear. In some cases, the non-appearance of a witness could constitute good cause, but in other cases it will not. For example, a police officer’s vacation is not a good enough reason to continue a hearing. Because you may not know whether a particular reason really counts as good cause or not, object first and ask questions later.
The second procedural objection arises when the hearing officer tries to call a witness to testify by telephone after you have insisted all testimony be in person. This issue should be a slam dunk on a writ, so make sure you preserve it. (Of course, your attorney must request an in person hearing in the first place and lodge the appropriate objections at the time the hearing is scheduled.)
No script can cover all the permutations of facts, witnesses and hearing officers that might appear at a given hearing. But there are rules of thumb that will guide you through the process and increase the likelihood of winning a DMV writ if you lose the hearing.