Top 4 Procedural Hearing Defenses
Procedural hearing defenses are those that have nothing to do with the facts of your case. Instead, they provide a way to beat the Department of Motor Vehicles (DMV) based on the way the hearing officer conducted the hearing process. These defenses are often the best (or only) option the motorist has.
Many people wonder how hearing officers can make mistakes that provide a defense to a hearing. The answer is that they usually do not have an adequate understanding of the laws governing their job. The hearing officer is not usually a lawyer and often has no legal training whatsoever. In fact, they are usually promoted from the ranks of driving test examiners. Learn these defenses so that if your hearing officer makes any of these mistakes, you will be able to capitalize on them and beat the DMV.
Procedural Hearing Defense #1
Illegal ‘Reconvene’ Granted By Hearing Officer
This happens all the time when hearing officers find they do not have the witnesses or documents they need to conduct the hearing. While the Government Code allows a continuance for good cause, DMV does not show good cause if it could have prevented the continuance with reasonable preparation. Nor is a police officer’s vacation good cause. If your hearing officer proposes to reconvene (DMV’s word for continuance) at a later time, object to it and be ready to file a writ when your objection is overruled.
Procedural Hearing Defense #2
Continuance Illegally Denied By Hearing Officer
This defense is the converse of #1 and presents itself when a motorist shows good cause for a continuance, but the hearing officer denies the request. Examples of good cause are lack of proper notice by the DMV, needing time to hire counsel, timing conflict with court or a doctor’s appointment or something else important that could not reasonably be avoided, and the death or illness of an important witness. If your hearing officer proposes to deny your request for a continuance, point out that you have shown good cause under Arnett v. Office of Administrative Hearings (1996) 49 Cal.App.4th 332 and that denying the continuance is an abuse of discretion. Then be ready to file a writ and ask for attorney’s fees.
Procedural Hearing Defense #3
Illegal Telephone Testimony
This defense works only if you’ve followed our advice and demanded an in-person hearing, objecting to all telephonic testimony. Hearing officers will frequently ignore this objection and call witnesses over the telephone. We have never lost a hearing using this defense. If the hearing officer threatens to call a witness by telephone when you have objected prior to the hearing, point out that Government Code section 800 allows for attorney’s fees in such a case. Then be prepared to file a writ and seek your attorney’s fees.
Procedural Hearing Defense #4
Use Of Hearsay As Sole Evidence
While hearsay evidence is admissible at DMV hearings, it may not be used as the sole evidence of a fact unless a hearsay exception applies. Hearing officers love to use hearsay documents because they don’t require subpoenas and witnesses. This defense arises when a hearing officer tries to use hearsay without showing that a hearsay exception applies. Examples of such hearsay are found in police reports all the time: for example, any breath or blood test report without proper foundation to create a hearsay exception. Similarly, any statement by a civilian witness written down in a police report is hearsay and cannot be used in any circumstance. (There is never an exception that would apply to a civilian’s statement.)