The hearing officer will open the hearing by testing the tape recorder, then having each person present identify himself or herself. The hearing officer will then state the purpose of the hearing and recite the issues to be determined. The next step will be to identify and mark as exhibits the documents which will usually constitute the department's entire case. At a minimum, this will consist of the "officer's statement" signed under oath, containing evidence of driving and of a breath test, and the notice of suspension. Exhibit documents will usually also include the licensee's driving record, the arrest report and, if blood or urine was tested, laboratory certification. Exhibits may also include accident reports, and supplemental investigations. If the officer testifies and uses reports to "refresh his memory" which were not forwarded to the department, the hearing officer will probably make copies of those and introduce them as well.
California DUI lawyers will undoubtedly have objections to most of these documents. The hearing officer will rule on these objections — overrule them — and then admit them into evidence. It should be clearly understood by counsel that the hearing officer has no legal education, and so will simply not understand the objection in most cases, nor any statutory or case authority cited by counsel. The hearing officer will understand only the memorandums on legal issues periodically forwarded from Sacramento which present the department's official policy toward issues.
The hearing officer may attempt to call the licensee if he or she is present. If counsel does not want the client to testify, counsel can simply advise the hearing officer that the licensee is asserting his or her Fifth Amendment rights. Although there is some language in an old appellate decision stating that the licensee has no self-incrimination privilege [Goss v. Department of Motor Vehicles 264 Cal.App.2d 268, 70 Cal.Rptr. 447 (4th Dist.l968)], hearing officers will never take the extensive time and effort necessary to compel the testimony.
When the hearing officer has finished accepting his or her own documents into evidence, the officer will rest the department's case. If, however, the hearing officer realizes that an element of the case is missing, the hearing officer can request — and grant — a continuance.
Note: the law on this subject is unclear; it is at least arguable that there is no statutory authority for a continuance prior to administrative review of a decision without the licensee's consent.
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