Demand an In-Person DMV Hearing

Keep the Process Honest & In Your Favor

Demand an In-Person DMV Hearing

To maximize your chance of winning your hearing, always demand an in-person hearing because it reduces the likelihood that witnesses will actually show up and testify against you. Though DMV has the ability to issue subpoenas to bring witnesses to the hearing, many people (especially law enforcement and crime lab personnel) simply ignore them. They know that DMV almost never does anything to enforce a subpoena, and they frankly have more important things to do than show up at DMV. This simple tactic would change the outcome of more DMV hearings than any other single procedure.

DMV hearing in person
One of the most powerful weapons in the motorist’s arsenal against DMV is the ability to demand an in-person hearing. Government Code Section 11440.30(b) provides “The presiding officer may not conduct all or part of a [DMV] hearing by telephone, television, or other electronic means if a party objects.” That means that the hearing officer must allow an in-person hearing if the motorist so chooses, and may not call witnesses by telephone over objection. There are two main reasons to demand an in-person hearing. First, it decreases the chance that witnesses against you will actually show up, and second, it keeps the hearing officer more honest by allowing you to see the actual documents being used against you. There are certain types of cases where DMV absolutely needs a particular witness in order to suspend a motorist’s license. There are commonly three such cases and witnesses:

  • Citizen witnesses who were the only observers of the motorist’s driving;
  • (Arguably) arresting officers in Zero Tolerance and DUI Probation cases;
  • Breath test calibration officers in Zero Tolerance and DUI Probation cases;
  • Crime lab toxicologists offering a chemical test opinion where the report itself would be hearsay without an exception.

DMV needs each of these witnesses to supply live testimony because without it, critical parts of DMV’s case would be considered hearsay without an exception. Though hearsay is admissible in DMV hearings, without an exception it cannot be relied upon as the sole evidence necessary to support a finding. (Government Code Section 11513(c).) For example, the notation in a police report that a citizen witness said a motorist was weaving is hearsay and cannot be used by DMV if that witness is the only person who saw the weaving. Similarly, maintenance and calibration logs for preliminary alcohol screening (“PAS”) tests are hearsay without an exception; the actual calibration officer must testify if DMV is to establish that the PAS device was in proper working order. One final note: you must demand the in-person hearing when you first request the hearing—a time when you are unlikely to know whether or not DMV will actually need one of these witnesses or not. It is possible that once you get the police report from DMV you decide that an in-person hearing is unnecessary. It is our practice to waive the in-person hearing at that time and conduct it by telephone instead.

GC 11440.30, GC 11513

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