Although the basic standards for implied consent suspensions are similar across the country, the nature of the procedures used vary greatly. Thus, in one state the hearing may be conducted by a sitting judge, in another by an administrative law judge, and in a third by a lay employee of the motor vehicle department. The prosecutor may be a deputy attorney general, a local prosecutor, or a DMV employee. Procedural due process ranges all the way from full discovery, confrontation, rules of evidence, findings of fact, appeal, etc., to the abysmal situation presently existing in California. Hearings in that state are presided over by a lay employee of the DMV; this employee is also the prosecutor, and so rules on his (and his opponent's) own objections and offers of evidence; if confrontation is desired, the licensee is required to subpoena the officer and pay his salary; when the DMV employee, as judge, decides that he, as prosecutor, has won the hearing, the licensee can appeal — to the DMV. To make matters worse, hearings are often not held or decided until after license has already served the entire suspension (four months for a first offense).
This section will discuss the initial legal issues which should be considered by counsel representing a client in such administrative proceedings. Regardless of whether the suspension is for a refusal or for a per se offense, the officer's initial conduct must be reviewed. Did he have probable cause to stop, detain, and arrest? Given probable cause to arrest, was the arrest a lawful one — that is, did the officer have the authority to make the arrest? Where a choice of chemical tests is authorized in the jurisdiction, was the defendant given such an option? If not, what if any are the legal consequences?
Later sections will deal with the unique issues involved in the two different kinds of suspensions. The refusal and issues of implied consent require particular attention from the practitioner. These substantive areas are followed by a discussion of the procedural aspects of administrative suspension hearings, including discovery, format, and evidentiary rules.
Finally, the connection between the administrative proceedings and the criminal courts will be considered. What remedies exist for judicial review? Do findings by the administrative agency act as collateral estoppel on the criminal prosecution — or vice versa? Does punishment imposed in one proceeding act as double jeopardy in the other?
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