What is Oral Testimony at an APS Hearing?
What is Oral Testimony at an APS Hearing?
Any driver who is arrested for DUI in the State of California faces the very real possibility that their privilege to drive will be suspended by the California Department of Motor Vehicles (DMV). Even if the accused driver is from another state, any person arrested for DUI is subject to the administrative suspension of their driving privilege under California’s compulsory Administrative Per Se (APS) law.
The automatic suspension of a person’s driving privilege begins the moment a person is arrested for DUI. The only way a driver may stop and reverse the suspension of their driving privilege is by scheduling, conducting and winning an Administrative Per Se hearing before the California DMV. Known as an “APS” hearing, this administrative process is one of the most onerous and frustrating hearings a person can face.
If it is run correctly, the APS Hearing is run very much like a mini trial. Exhibits are presented, evidence is examined, witnesses testify and experts offer opinions. Because this process is so demanding and complicated, California law does permit the accused driver to be represented by an expert in DMV defense. The DMV Defense Experts at California Drivers Advocates focus on one thing; we represent California drivers at all forms of administrative hearings, including the APS Hearing.
The DMV has the burden of proving its case and to do so, the DMV Hearing Officer will introduce exhibits, evidence, and testimony to justify the suspension of your driver license. One of the most powerful categories of evidence presented at an APS Hearing is live “oral” testimony. Any witness who offers oral testimony at an APS Hearing must do so under the penalty of perjury. As such, before any person testifies, they must raise their right hand and swear to tell the truth or face the possibility of being prosecuted for perjury. This is serious business.
Because an APS Hearing is a full-blown evidentiary hearing, it may be appropriate to take oral testimony for any witnesses who possess information relevant to the suspension action. Oral testimony can come from a variety of sources:
Arresting Officers: Under the Official Records Exception to the evidence code, the arresting officer’s sworn report may come into evidence at an APS hearing even if the officer is not present to testify. However, many times, a police officer’s report may be deficient or may create more questions than it answers. Both the DMV hearing officer and your DMV Defense Expert have the absolute right to issue a subpoena for the live “oral” testimony of the arresting officer. It should be mentioned, however, that if a driver issues a subpoena for the oral testimony of a police officer; whether “in-person” or “telephonic”, a fee must be paid to the police agency to compensate the officer for his time. This can often run into the hundreds of dollars. Just like everyone else who testifies at an APS Hearing, the arresting officer must do so under the penalty of perjury.
Assisting Officers: It is common for one officer to make initial contact with a driver and then call a second officer to the scene who ultimately makes an arrest for DUI. Also, there are frequent instances where an arresting officer may not be certified in the use of a breath analysis device and so, a secondary officer may administer the breath samples to an arrested driver. In each of these instances, and many others, it may be necessary to issue subpoenas to assisting officers for their oral testimony at an APS Hearing.
Medical Professionals: Medical professionals can play an important role in an APS Hearing. The DMV hearing officer may subpoena a medical professional to establish that a blood sample was properly drawn.
Your DMV Defense Expert from CDA may also issue subpoenas to medical professionals to establish medical or physical conditions that may make a sober driver appear impaired. Your CDA representative may also seek oral testimony from a medical professional who may establish that you suffer with a medical or physical ailment that may affect the accuracy of a chemical blood or breath test.
Civilian Witnesses: Any person who possesses relevant information of any of the events surrounding a DUI arrest may be called to provide oral testimony at an APS Hearing. Witnesses to traffic collisions, passengers in vehicles, restaurant workers, and bystanders are all examples of potential civilian witnesses. Witness testimony can be an enormously important step in winning an APS Hearing, so your DMV Defense Expert should work diligently to identify anyone who has information regarding the truth in your incident.
PAS Coordinators: One of the most common tools used by law enforcement officers today when conducting a DUI investigation is the administration of a preliminary alcohol screening (PAS) device. Officers use these devices to estimate the driver’s blood/alcohol concentration at the scene of the arrest. Current case law prohibits the use of the numerical readings provided by a PAS at an APS hearing unless proper “foundation” is presented to demonstrate that the PAS device was working correctly and was administered properly.
Every police agency has officers who are specifically responsible for the maintenance and calibration of PAS devices. Known as “PAS Coordinators”, these specially trained officers must calibrate (conduct accuracy checks) the agency’s PAS devices every 10 days or 150 tests.
If the DMV hearing officer seeks to use the numerical readings of a PAS device as evidence at an APS Hearing, he or she will often subpoena the “PAS Coordinator” to provide oral testimony as to the proper maintenance and calibration of the PAS device. The DMV Defense Experts from CDA also have the right to issue subpoenas for the oral testimony of the PAS Coordinator. This is common when your DMV Defense Expert is presenting a “rising alcohol” defense.
Expert Witnesses: The DMV Defense Experts from California Drivers Advocates will often focus their defense efforts in attacking the science of the DMV’s case; or there are times where the cause of a traffic collision is instrumental in protecting our clients. When presenting these defenses, it is common to introduce the oral testimony of expert witnesses.
Before an expert witness may testify and offer expert “opinions” they must be qualified as an expert in their field. Known as the “void dire” process, qualifying an expert requires that your DMV Defense Expert present enough evidence and testimony to convince the DMV hearing officer that your expert has enough training and experience in a given field as to be relied upon as an expert. The DMV Defense experts from CDA have a complete portfolio of experts in a wide variety of disciplines who stand ready to assist our clients. Forensic Toxicology, Field Sobriety Testing, Investigations and Traffic Accident Reconstruction are all fields of expertise often presented at an APS Hearing.
The Accused Driver: Because all testimony at an APS Hearing is taken under oath and is audio recorded, great consideration must be given to the prospect of asking the accused driver to offer oral testimony. Any admissions or statements made by a driver at a DMV administrative hearing are discoverable by a prosecutor and have the potential of being used against the driver in a separate court proceeding. It is often ill advised to have a driver testify against themselves and to create a record of their testimony.
On the other hand, there are times when the only way to reveal the truth of a situation is through the live oral testimony of the accused driver. When we ask our client’s to testify, they understand the possible consequences of their testimony. Also, we do not present our client’s for oral testimony until they have been thoroughly prepared and are ready to offer clear, concise, and truthful testimony. Preparation is critical.
The DMV Defense Experts from California Drivers Advocates have a long history winning APS hearings. Attacking evidence, introducing evidence, and locating unexpected evidence are cornerstones of our defense strategy. Locating, interviewing, and evaluating potential witnesses are often critical to winning an APS hearing. Because the DMV is permitted to “presume” the accuracy of police reports, it is the job of your DMV Defense Expert to rebut that presumption by demonstrating that the DMV’s evidence is not accurate or trustworthy. One of the most common methods for attacking the DMV’s case is the presentation of witnesses who give oral testimony.
There is an old adage in defense work that says “you should never ask a question you don’t know the answer to.” In short, this means that your DMV Defense Expert must know your case, must know the facts and must anticipate the information a witness will give in oral testimony. This mandates that your DMV Defense Expert be completely versed in direct and cross-examination techniques. The direct examination of an expert witness who is friendly to your client’s case is entirely different than cross-examining a police officer who may be hostile. The key to success is knowledge, training, experience and preparation. If your DMV Defense Expert is weak in any of those areas, your case is not as strong as it could be.
The DMV Defense Experts from California Drivers Advocates are a team of former of police officers, DMV hearing officers, investigators and scientists. We have been examining and cross-examining witnesses for years. We know how to identify weaknesses in a case and we know how to use the oral testimony of witnesses to reveal the truth.
Call CDA Today. Let us determine if Oral Testimony may help win your APS hearing.
Experience is not something that is taught in a book. It is not a strength that is gained by sitting in a classroom. Experience comes from years of fighting in the trenches. The ability to assess a case early and then the wisdom to plan a comprehensive defense strategy comes from experience.
If you are facing the loss of your driving privilege at a DMV Administrative Hearing and if you simply must keep your driver license intact; call CDA today. We have years of training and experience behind us. We win APS Hearings because there is very little we haven’t seen. That level of experience allows us to anticipate the DMV’s every move and plan a defense strategy that fits your particular set of facts. We’re standing by to begin your defense.
More about Administrative Per Se (DUI) Hearings at the California DMV