Witness Statements & DMV Administrative Per Se Hearing 2017-05-07T05:04:01+00:00

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What is a Witness Statement at an APS Hearing?

Any person who drives a motor vehicle in the State of California is subject to the suspension or revocation of their driving privilege if they are arrested for DUI. Under California’s Compulsory Administrative Per Se Law (APS), the DMV is directed to automatically suspend or revoke the driving privilege of anyone who operates a motor vehicle in the State of California with a blood/alcohol concentration which exceeds the legal limit. If an accused driver hopes to prevent the suspension or revocation of their driving privilege, the only path to success is to schedule, conduct, and win an APS Hearing before the DMV.

Introduced properly, an APS Hearing should be run very much like a mini-trial. Exhibits are introduced, witnesses may testify, evidence is argued and experts may offer opinions. These are full-blown evidentiary hearings where the accused driver is permitted to fight for himself in an attempt to defeat the intended suspension of his driver license.

In this chapter, we discuss statements provided by witnesses.   Witness testimony may be presented either in a written form or by oral testimony.   The statements of witnesses can be a two-way street. Depending upon what the witness saw or will testify to, their information can be very damaging to a driver’s case. On the other hand, witness statements can turn a case around and completely defeat the DMV’s suspension. Because witness statements can be so powerful, a driver must be very cautious about what statements are allowed to be introduced into their hearing. If a witness statement is introduced into evidence, it becomes Gospel and the hearing officer will consider it carefully.

Possible sources of witness statements are: Police Officers or other law enforcement personnel, Passengers in the accused driver’s vehicle, Drivers or passengers of other vehicles, Friends, family, or relatives, Bystanders or pedestrians, Hospital staff or blood technicians, Drive-thru workers at fast food restaurants, store clerks or gas station attendants, Tow Truck Drivers & more.

Virtually any person who saw or heard something relevant may be a potential witness for either the accused Driver or the DMV. Introducing witness statements can be tricky business, so it requires a DMV Defense Expert who understands the DMV process well enough to introduce helpful information while working hard to exclude damaging information.

 How Can a Witness Statement be Used at an APS Hearing?

First of all, let’s remember that there are two parties fighting to resolve a conflict at any APS Hearing.

  • DMV Hearing Officer: It is the duty of the DMV Hearing Officer to introduce any evidence, including witness statements, which help support the intended suspension of

the accused person’s driver license.

  • DMV Defense Expert: It is the duty of the DMV Defense Expert from CDA to fight to minimize or eliminate any witness statements presented by the DMV. At the same time, it is CDA’s job to fight to introduce any witness statements which help to prove our client’s innocence.

The DMV’s case will be primarily based upon an Officer’s Sworn Report. Known as the DS-367, this report can actually stand in the place of the arresting officer and provide information that he would normally be required to testify to. One of the things that the DS-367 cannot do is introduce the unconfirmed statements of witnesses (unless they are other police officers). If an independent witness’s statement will establish fundamental parts of the case, such as identifying the arrested driver that can only come into to evidence through a sworn witness statement or testimony.

Unfortunately, the DMV is notorious for ignoring the law. DMV Hearing Officers will often move witness statements into evidence that should be excluded. It is critically important that your DMV Defense Expert be comfortable enough and experienced enough to fight a hearing officer who is trying to move inadmissible evidence into the case.

As the accused driver, you are known as the “Respondent.” This is because you are responding to the DMV’s intention to suspend or revoke your driver license.

In preparing the Respondent’s case, we conduct through investigations in an attempt to locate any witnesses who can give us a better look at the truth. Witnesses can be reluctant to be part of the APS process so it is critically important that your DMV Defense Expert have the knowledge, experience and willingness to calm the potential witness and encourage them to introduce what they saw or heard.

In many instances, CDA will interview witnesses and then prepare what is known as a “Sworn Declaration.” This is a sworn statement that conforms with the Government Code’s requirement to be sworn document that overcomes a hearsay objection. We interview the witness, prepare the declaration on their behalf and then get them to sign and execute the document. With that done, we serve that information on the DMV as “affirmative evidence.” By introducing the statements of a valuable and credible witness, we can often rebut or disprove the DMV’s case.

Proper preparation, execution and presentation of a sworn witness statement (declaration) requires a DMV Defense Expert who knows what is required to make such a statement trustworthy and admissible at an APS Hearing. Even with all that done, the DMV hearing officer still has the power to demand to examine the witness, which means that the witness must testify in support of his or her statement.

We know precisely how to locate witnesses and how to get their statements into evidence in your case.

It is not enough to present a witness statement to a DMV Hearing Officer. If the hearing officer simply rejects the statement or only marks it for “identification” the statement may have little or no impact on the case. Properly preparing, executing and presenting a witness statement into evidence require a commanding knowledge of the Government Code, the Evidence Code and the California Administrative Procedures Act. You cannot simply have a witness scribble out a note and have any hope that the DMV hearing office will even read its content.

At California Drivers Advocates, we have been fighting and winning APS hearings for years. We have learned the value of a good witness statement, but we also know how hard the DMV will fight to ignore or reject any thing that weakens their case. Knowing the truth isn’t enough to win a hearing. The truth is irrelevant if the hearing officer won’t allow it into evidence.Call CDA today. We know how to get the job done right.

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More about Administrative Per Se (DUI) Hearings at the California DMV

What is a DS-367M

What is the Implied Consent Law

DUI/Sobriety Checkpoints