The DMV hearing officer can continue a hearing only on a showing of good cause. Generally, if a witness has been properly served with a subpoena but doesn't show up for court, that is good cause.
The DMV must also be diligent in enforcing its subpoenas. That means being willing to ask a court to enforce a subpoena if the witness doesn't appear.
You aren't going to get far at a DMV hearing by arguing a rising blood alcohol level without an expert to back up your theory. What's more, it's almost impossible for your BAC to be .12 three hours after drinking three shots unless you were drinking doubles or 200 proof Everclear, or you weigh 70 pounds.
There is a rebuttable presumption that your BAC was over .08 at the time of driving if it was over that limit within three hours after driving. Exactly how are they going to prove when you drove?
There are so many issues here that it's like playing a game of legal Whack-a-Mole. DMV hearings are incredibly complex, and many lawyers win them on technical issues.
If might be a good idea to take advantage of this latest continuance and hire a lawyer who is experienced in DMV proceedings.
Your rights are legal. Attorneys study the laws and are familiar with your legal rights. Representing yourself is a very bad choice in a DMV hearing.
Why it is not a good idea for you to be present at the DMV Hearing
The Driver Safety Officer offers evidence in the form of documents and/or witnesses. The Driver Safety Officer offers the drunk driving / DUI police report, DMV records, DUI alcohol reports and the important DUI officer's sworn statement entitled a "DS 367." The legal and factual issues at a hearing are limited.
With no Fifth Amendment right at the hearing, your DUI / DMV attorney usually will not want you to be present at the hearing since the Driver Safety Officer can call you as a witness and force you to testify against yourself if you ill-advisedly appear. The first question asked may be: Did you drive to that location? How are you going to answer that. You have to say yes but why give DMV help to prove what they have to prove.
I do not not win cases by having my client present at the DMV hearing. But I know attorneys who I have instructed that had previously lost cases because their client was called as a witness, at which point DMV was able to cure defects through the testimony of the client.
DMV may want you there in case DMV feels it needs to cure technical defects through your testimony; then they just call you as a witness and you have to testify because you are there.
A DUI lawyer's defenses at an APS hearing are specialized and technical, more so than in criminal court. Frequent DUI / DMV proof problems - as well as legal, procedural and bureaucratic obstacles - are possible grounds for setting aside the suspension. http://www.sandiegoduilawyer.com/hearing.html
Upon review and analysis of the evidence (DS 367 -sworn officer's statement, police report, test results, lab records, complaint, driving record, etc.), your attorney can determine what our best strategy or tactic is. One is obviously a function of the other.
Important questions for your attorney to consider include:
) Did California police officer actually observe the person driving the vehicle? 2) Does the officer have first-hand knowledge of the person driving? 3) Was the vehicle lawfully parked when the officer arrived on the scene? 4) Is there a reliable witness who can actually identify the person as the driver? 5) Could there have been another person driving? 6) Can competent witnesses establish the vehicle moved within 3 hours of the chemical test? 7) Is corpus delicti for a DUI offense (actual driver + driving of vehicle, etc.) established? 8) Was the warrantless DUI arrest lawful?
A “slight movement” of the vehicle in the arresting officer’s presence must be shown, to constitute direct evidence that the vehicle was being driven. People v Wilson (1985) 176 CA3d Supp 1, 8, 222 CR 540. Moving the vehicle even a few inches constitutes "driving" the vehicle. Music v Department of Motor Vehicles (1990) 221 CA3d 841, 850, 270 CR 692. California Vehicle Code section 23152 (DUI)'s requirement "to drive a vehicle" means there must be evidence of "volitional movement" of a vehicle. A misdemeanor arrest without a warrant is permissible only if a public offense occurs in the arresting officer's presence. Because the officer who arrested the driver did not see the driver's vehicle move, the driver was not lawfully arrested for a violation of Vehicle Code section 23152(a). Mercer v Department of Motor Vehicles (1991) 53 C3d 753, 762, 280 CR 745
There are a number of cases to consider (see below link" No Driving Defenses")- e.g. see Music v Department of Motor Vehiclesz' (1990) 221 CA3d 841, 850, 270 CR 692 (warrantless arrest of defendant was illegal because defendant did not move vehicle in officer’s presence; arrest occurred when officer observed defendant sitting in driver’s seat of his vehicle, which was parked in parking stall with engine running).
The DMV does have a right to continue the hearing, but only for good cause, as Mr. Mueller indicated. An attorney representing you would know how to object to these illegal continuances. From your post, it appears that, not only was the case continued inappropriately, but also, there are other more complex issues about whether or not the officer had reasonable cause to believe that you were DRIVING a motor vehicle with a blood alcohol of over .08%. This is the third issue that the DMV must prove to suspend your license.
I agree with Mr. Mueller that, in most cases, we do not have our clients testify. The testimony that you would provide will, without adequate preparation and knowledge of all issues, generally be used against you.
I strongly suggest that you contact an attorney in your area, perhaps Mr. Mueller, to assist you with this situation.
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