Friday, July 27, 2007

California DUI - DMV Hearing Officers' Functions Must Be Separate

California DUI Attorney Update

California DUI Lawyers should note the change
re: California DUI - DMV Administrative Per Se
Hearings:

This states California DMV hearing officers, who
handle California DUI Attorneys' clients' DMV
hearings should not also be an investigator,
prosecutor or advocate in the California DUI -
DMV proceedings.


The California Hearing Administrative
Practice (CEB) manual, section 6.21 now states:


… The adjudicative function is to be separated
from the investigative, prosecutorial, and advocacy
functions within the agency (Govt Code section
11425.10(a)( 4) and that the presiding officer may
not have served as an investigator, prosecutor, or advocate
in the proceedings (section 11425.30).


Having an administrative agency sit as investigator, evidence-gatherer, prosecutor, judge, jury, and executioner violates the law.

Every California DUI Lawyer should be attacking the DMV scheme, which is on all fours with the ABC scheme [Dep't of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd., No. S133331 (Cal. November 13, 2006)], inter alia, as follows:

Due to the inherent conflict of interest in serving as both a prosecutor and a judge in the same proceeding , and because of increased pressure by DMV management on DMV hearing officers to uphold its administrative suspension orders, the licensee objects based upon Federal Due Process and Equal Protection Grounds [Dept. of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Board (November 13, 2006) __ Cal 4th __ S133331; Withrow v. Larkin, (1975) 421 U.S. 35, 46-47, Kloepfer v. Commission on Judicial Performance, (1989) 49 Cal.3rd 826, 835] and respectfully requests that an independent administrative law judge be appointed to preside over this hearing. Licensee does not waive his/her constitutional rights to due process of law, and he/she does not consent to having an employee of the DMV, untrained in the law, rule upon this matter.


The Department of Alcoholic Beverage Control's procedure for adjudicating
whether licensees violated the terms of their licenses -- wherein a
prosecutor prepares a summary of the evidentiary hearing and recommended
resolution, which he then provides ex parte to the ultimate decision maker
or decision maker's advisor -- violates the California's Administrative
Procedure Act's bar against ex parte communications.
http://caselaw. lp.findlaw. com/data2/ californiastatec ases/s133331. pdf