Certainly, a motion to continue made by the hearing officer should be objected to—and sustained—if it is made before the licensee offers any evidence. Absent no new information produced during the licensee's case for which the hearing officer is unprepared, there are no valid grounds for the continuance (other than, perhaps, the nonappearance of witness subpoenaed by the Department). Any continuance the Department grants itself that is not a response to new evidence is simply the result of negligence; that is, a failure to properly prepare the case.
Counsel may now offer reports, declarations or other documents into evidence. And counsel may now call the client and any other witnesses, including blood-alcohol experts, eyewitnesses and law enforcement officers.
The hearing officer can then cross-examine these witnesses. Rarely, however, are these cross-examinations conducted with any skill.
Note: using a declaration or affidavit of the client instead of testimony precludes any cross-examination.
Finally, counsel will be given an opportunity to give a summation.
The burden of proof rests upon the Department to justify its order of suspension. Burge v. DMV, 5 Cal.App.4th 384, 7 Cal.Rptr.2d 5 (1st Dist.1992); Daniels v. DMV, 33 Cal.3d 582, 189 Cal.Rptr. 512, 658 P.2d 1313 (1983). This burden is one of preponderance of the evidence. Vehicle Code § l3557(b)(1) and (2).
The hearing officer almost never renders a decision at the end of the hearing. Rather, the matter is "taken under submission" and a notice is later forwarded by mail to the licensee, with a copy to counsel. This may take anywhere from 2 days to over a month. The notice will be either an "Order of Set Aside" indicating that the license is being reinstated, or a "Notification of Findings and Decision" indicating that the licensee has lost the hearing. Preceding these documents is a sample "Officer's Statement", commonly referred to as a "DS-367", a sworn document which will be offered by the hearing officer as sworn testimony from the arresting officer and, if applicable, breath operator and/or blood technician.
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