Hearsay is Admissable at DMV
One of the most maddening aspects of a DMV hearing from a trial lawyer’s point of view is the relaxed hearsay rules that apply. In short, hearsay evidence that would never be allowed in a criminal trial is just fine at DMV.
What is hearsay evidence? In short, it is some kind of statement or record of a statement that was originally made outside of the hearing. For example, a 911 call reporting that a motorist was weaving contains a hearsay statement that was made outside of the DMV hearing. Similarly, a pedestrian who witnessed an accident may have told an officer "the blue car ran the light." In both cases, DMV will often just use the police report with the officer’s notes about the 911 call or the witness’ observations.
Such "evidence" would be unthinkable in a criminal trial, but it is allowed under the "relaxed rules" of administrative hearings. DMV makes the most of this loophole; often the entire case against you at a DMV hearing will consist only of the police reports prepared by the arresting officer.
So how do we ever win these hearings?
Hearsay Can’t be the Only Evidence of a "Finding"
The one limitation on DMV’s use of hearsay at a hearing is that, though it is admissible without limitation, it cannot be used as the "sole evidence" of any fact necessary to suspend your license. Let me explain.
To suspend your license, the hearing officer must make certain findings of fact based on the evidence at the hearing. In an excess BAC case, for example, the hearing officer must make a "finding" that you were driving at a time when your BAC was 0.08% or greater.
This "finding" actually requires four separate findings:
- that you were the driver (and not someone else);
- that you were driving a vehicle (and not simply parked);
- a specific time that you were driving; and
- a 0.08% or greater BAC at that time.*
If the hearing officer makes a "finding" that your BAC was 0.08% or greater, for example, he must be able to point to evidence that supports that finding. With the one exception noted in the next section, the hearing officer cannot support his finding by using hearsay alone. This limitation may be important, as in a blood test case where the only evidence of BAC is often the hearsay Blood Test Report, which may be wholly insufficient to suspend a motorist’s license.
Unless a Hearsay Exception Happens
There is one exception to the rule that hearsay alone cannot support a "finding," and that is where a hearsay exception applies. This exception is so common that it has really become the rule, and many hearing officers have become experts at knowing which hearsay exceptions apply to the various documents they routinely use to suspend licenses.
For example, in my blood test report scenario above, the hearing officer will often say that the report falls within the "public employee records" exception to the hearsay rule and can be relied upon as the sole evidence of BAC. And often, the hearing officer would be right.
So again, how do we ever win these hearings?
The Hearsay Exceptions Don’t Always Apply
The hearing officers are not lawyers and usually do not have a solid command of the rules of evidence. What they do have a solid command of is the stack of memos from their superiors telling them how best to suspend licenses based on hearsay. These instructions rarely cover all the scenarios they encounter, leaving them to guess at how to apply hearsay law in a great many situations. And that’s where we have a fighting chance to win these hearings.
Let’s take the blood test report example again. If the blood test report is signed by a person whose job description is defined by public statute (a true "public employee"), then the public employee records exception applies and DMV can use the report alone to suspend your license. If, however, as is often the case, there is no job title on the blood test report or the title is something made up by the lab that prepared it, the exception does not apply, and DMV may not suspend your license based only on the report.
* The hearing officer may be able to rely on certain "presumptions" related to time and BAC, but they are not relevant for our purposes here.