Illegal Evidence Inadmissible in Court…but OK for License Suspension Hearing?

I’ve posted often in the past about "The DUI Exception to the Constitution" and how constitutional rights in drunk driving cases have been steadily eroded over recent years.  See, for example, The DUI Exception to the Constitution and Who Cares About DUI Suspects?.  

One of the most extreme examples of this is the near absence of due process and constitutional rights in administrative license suspension hearings.  See DUI DMV Hearing: Where’s the Due Process?.     

To take one example, let’s take a  look at California’s system of "due process" in a DUI license suspension proceeding.  To begin with, the hearing is not presided over by a judge or even an "administrative law judge" — or even a lawyer.  Rather, it is presided over by a "hearing officer" who has no legal training, and possibly not even a college degree — and yet he will be making decisions on such things as admissibility of evidence without  any training in evidence or other legal matters.  Worse, this supposedly "impartial" hearing officer is an employee of the DMV — the very agency who is suspending the license (and wants to see the suspension upheld)!  

So who is the prosecutor in the DMV license suspension hearings?  Same Guy.  Yes, this uneducated employee of the DMV serves as both prosecutor and judge!  If the hearing officer offers evidence against the accused driver, and the driver makes a legal objection, this same hearing officer rules on that objection and decides whether his own offered evidence is admissible.  He will, of course, decide at the end of the proceeding whether his employer’s suspension against the driver is upheld or reversed.  You can imagine the inevitable outcome.

To take a recent example of this extreme denial of constitutional rights in a DUI case, reported in The Newspaper.com:

North Carolina Court Admits Illegally Obtained Evidence in License Case

Police may not violate constitutional rights to obtain a drunk driving conviction, but the Department of Motor Vehicles (DMV) can. The North Carolina Court of Appeals came to that conclusion last week in reinstating the driver’s license suspension of Myra Lynne Combs.

On January 6, 2013, Mount Airy Police Officer David Grubbs wrongly stopped Combs, who was behind the wheel of a blue SUV. An anonymous caller reported seeing a blue Ford Explorer weaving on Highway 52. Officer Grubs saw Combs, but her driving was just fine. She neither weaved nor committed any traffic violations. Officer Grubbs decided to stop her anyway once she had reached her destination….

Combs smelled of alcohol, and she was unable to pass the standard battery of field sobriety tests. Combs refused to undergo a breath test. Although she was arrested for driving under the influence of alcohol (DUI), the Surry County District Court tossed the criminal case because the officer violated the Constitution in stopping her illegally. The North Carolina Department of Motor Vehicles (DMV), however, was unwilling to let Combs off the hook. It revoked her driver’s license based solely on the illicitly obtained evidence. The DMV argued that the exclusionary rule does not apply to a civil proceeding. Combs argued that this was unfair. The trial judge told the DMV it could not base its action on illegal evidence, but the appellate court disagreed.

"Combs’s argument poses a fair question: how can law enforcement use evidence that was suppressed because of a Fourth Amendment violation to later revoke her driver’s license?" Court of Appeals Judge Richard Dietz asked. "The answer, according to several published decisions of this court, is that the exclusionary rule — a bedrock principle of criminal law — does not apply to license revocation proceedings."…

And so goes the slow death of the Constitution…

Thanks to Joe.

This entry was posted on Thursday, February 12th, 2015 at 2:31 pm and is filed under Duiblog. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.

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Why The ALS Suspension Is Unconstitutional

We are often asked how the arresting officer is authorized to take a persons’ license under the ALS suspension, and whether or not this is constitutional.  The dilemma presented by Ohio DUI Law is this: If I am innocent until proven guilty, how can they punish me by immediately taking my license when I am accused of DUI?  This site takes the position that the current law is unconstitutional.  But before we jump into the argument, it is important to understand how the current law works.

If you are stopped for an OVI, DUI or drunk driving and you refuse to take a chemical test (breath, blood or urine), or if your test results exceed the legal limit of Blood Alcohol Concentration (BAC), the police officer can and will take your driver’s license on the spot causing your drivers license to be suspended immediately.  This pre-conviction suspension is called the ADMINISTRATIVE LICENSE SUSPENSION. The ALS suspension is a suspension imposed by the Ohio Bureau of Motor Vehicles and not a suspension imposed by the court, but a penalty imposed under civil/administrative law.  For constitutional purposes, the entirety of the ALS scheme depends on the penalty being construed as a civil penalty.

The United States Supreme Court has addressed a very similar distinction between a civil penalty and a criminal penalty in Department of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767 (1994).  In this case, the Defendant was both tried for selling marijuana — and then charged civilly for a failure to pay a tax on that marijuana. The Supreme Court held that it was a violation of the Constitutional prohibition against Double Jeopardy: The fact that one proceeding was criminal and the other civil did not matter, the Court said, as long as they both involved the same offense and both were intended as punishment.

The Kurth Ranch decision upheld a previous ruling in United States v. Halper, 490 US 435 (1989) the United State Supreme Court addressed a civil penalty being used as a punishment.  In this case, Irwin Halper, the manager of a company that provided medical services to patients eligible for Medicare benefits, was charged and convicted in criminal court of submitting 65 separate false Medicare claims. He was sentenced to two years in prison and fined $5,000. This was the criminal penalty.

The United States then brought additional civil charges under the False Claims Act, which authorized it to collect $2000 for each offense in addition to attorney’s fees and twice the damages sustained. In this case the actual damages were just $585, but because of the number of offenses the total penalty was more than $130,000. The District Court, however, ruled that the penalty was “entirely unrelated” to the government’s actual damages and would therefore be a second punishment for the same offense, violating the Double Jeopardy Clause of the Fifth Amendment. The penalty was therefore limited to double the amount of actual damages and attorney’s fees. The government appealed the decision directly to the U.S. Supreme Court. Quoted from Oyez HERE.

Justice Harry Blackmun, on behalf of a unanimous Supreme Court, wrote that while previous cases had held penalties under the Act to be civil in nature, that did not foreclose the possibility of the penalty being so extreme and so unrelated to the actual damages as to constitute “punishment.” Because Halper had already been jailed and fined, additional punishment in a separate proceeding would violate the Double Jeopardy Clause of the Fifth Amendment. The Court remanded the case to the District Court so that the government could challenge the original assessment of its attorney’s fees.

These cases have repeatedly been cited in DUI cases as authority for the proposition that the State cannot both criminally prosecute for driving with over .08% blood alcohol and civilly suspend the individual’s driver’s license for the same offense. Although there have been federal court decisions taking this position, to date state courts have not accepted this reasoning and the U.S. Supreme Court has not addressed the issue in a drunk driving context.

As regular readers of this blog know, I am always looking for a way to change the most harsh and unreasonable aspects of DUI law that hurt innocent people.  There is no “penalty” more severe than immediately losing your license and having to scramble to arrange to put your life back together.  I hope to be in a position to challenge the constitutionality of the Ohio ALS scheme.

Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio. He has the credentials and the experience to win your case and has made himself Dayton’s choice for drunk driving defense. Contact Charles Rowland by phone at (937) 318-1384 or toll-free at 1-888-ROWLAND (888-769-5263). If you need assistance after hours, call the 24/7 DUI Hotline at (937) 776-2671. You can have DaytonDUI at your fingertips by downloading the DaytonDUI Android App or have DaytonDUI sent directly to your mobile device by texting DaytonDUI (one word) to 50500. Follow DaytonDUI on Facebook, @DaytonDUI on Twitter, YouTube, Tumblr, Pheed and Pintrest or get RSS of the Ohio DUI blog. You can email CharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324.

“All I do is DUI defense.”

Fairborn, Dayton, Springfield,Kettering,Vandalia,Xenia, Miamisburg,Huber Heights, Springboro, Oakwood,Beavercreek, Centerville

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Whatever Happened to “Due Process” in DUI License Suspension Hearings?

So you got stopped last night and arrested for drunk driving. And right after the breathalyzer showed a blood-alcohol reading of .09%, the officer confiscated your driver’s license and gave you a a piece of paper that said it was immediately suspended.

What happened?, you ask. Can they do that? I thought I was presumed to be innocent, and the state has to prove my guilt beyond a reasonable doubt before they can punish me. And I remember something about the Constitution and due process: Can they suspend my license for DUI before giving me a chance to defend myself?

Good questions.

The Department of Motor Vehicles (or whatever they call it in your state) is required by law to immediately suspend the driver’s license of anyone arrested for (not convicted of) DUI who (1) has a .08% breath reading, or (2) takes a blood or urine test (which will be analyzed later), or (3) refuses to take any test. This means immediately — on the spot: the license is grabbed and the DUI suspension is legally effective the moment the officer signs the notice and hands it to you.

Viewed another way, the officer in a DUI case is cop, prosecutor, judge, jury and executioner. You have absolutely no rights. In fact, if you took a blood or urine test, they don’t even wait for the results (which will come back from the lab days later): they not only presume you are guilty, they also presume that the evidence will eventually show it!

So, again: How can they do that in America?

Well, at first MADD and various state legislatures decided to find a way to get drunk drivers off the highways RIGHT NOW — and not be diverted by any technicalities like, well, the Constitution. So they enacted so-called "APS" laws (the phrase stands for "administrative per se", referring to the "per se" crime of .08%, as opposed to the separate crime of driving under the influence of alcohol). They justified this by saying that a license was a "privilege", not a "right" — and since the license holder had no rights, the state could do what it wanted.

Well, the U.S. Supreme Court blew that justification out of the water. In Bell v Burson (402 U.S. 535) the Court acknowledged that the right to drive is a privilege. However, once the state gives someone a license, that person then has a property right in it — and that right cannot be taken away without giving him due process. And due process means a fair procedure by which he can contest the confiscation of his property.

The reaction to this has generally been to continue suspending licenses on the spot, but to then give the driver a short-term (30 days in California) temporary operating permit during which he can request an administrative hearing from the DMV. (In a few states, the process is handed over to the courts and the suspension merged with the criminal proceedings.)

MADD has been successful in getting the Feds involved; a highway appropriations bill was passed which pretty much coerced states into adopting APS suspensions — or else no funds.  Do these APS hearings in DUI cases provide due process?

In other words, how fair are they?

Let’s take California’s APS hearings. They are conducted by a "hearing officer". Is this an impartial judge? Well, he’s hardly impartial: He’s an employee of the DMV — the very agency that is trying to suspend the license (kind of like a judge being paid by the prosecutor). And he isn’t a judge. Actually, he isn’t even a lawyer; he’s only required to be a high school graduate.

So who is the prosecutor? He’s, well, the same guy.

That’s right: this DMV employee with no legal education is both judge and prosecutor. Put another way, this government beaurocrat, without any legal education, can object to the driver’s evidence — and then sustain his own objection!  He can deny the driver’s attorney’s request a week before the hearing for a delay to subpoena a witness, then grant himself a delay in the middle of the hearing.  Well, you get the picture…

Not too surprisingly, the DMV wins about 95% of these DUI hearings.

That’s called "due process" in a drunk driving case.

This entry was posted on Tuesday, May 22nd, 2012 at 8:27 am and is filed under Duiblog. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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Broward DUI Attorney -- Drivers License Administrative Suspension Issues

A DUI arrest in the state of Florida can be devastating. It can have a long-term effect on your future, including your prospects for employment, or even continuing at the job you already have. For many, a valid driver's license is necessary for work. Truck drivers and taxi operators come to mind immediately, but other professions require that workers drive regularly. For example, Fort Lauderdale DUI lawyer William Moore drives to court. Even driving just to get to your place of employment is important, as is driving children or other family members to school, doctor's appointments, and the like.

After a driver is arrested for driving under the influence in Florida, he or she has only 10 days in which to formally challenge the administrative suspension of his or her drivers license by the Florida Department of Highway Safety and Motor Vehicles. Broward DUI lawyer Moore provides representation at these hearings. The arresting law enforcement officer may appear at the hearing and provide testimony regarding the reasons for the traffic stop. The administrative suspension of the drivers license is a separate matter from the criminal case. In fact, even if a defendant goes to trial and is found not guilty of DUI by a judge or jury, the driver's license suspension by the FDHSMV is not invalidated at that point. If the defendant did not successfully challenge the suspension in the 10 day period following the arrest, the drivers license will not be reinstated until after the suspension period runs and the defendant applies for reinstatement with the FDHSMV, according to Broward DUI lawyer Moore.

It is important to remember not to drive unless your license is valid. Drivers licenses can be suspended for failure to pay tickets, a DUI arrest, and having child support in arrears. However, driving with a suspended license may sound like a simple traffic ticket, but is actually a fairly serious criminal matter. It is not uncommon in many jurisdictions in Florida for the prosecutor to seek significant time in jail -- for instance, 30 days -- simply for an arrest for operating a motor vehicle with a suspended license. Such an arrest could also constitute a violation of the terms of dui probation, which usually includes reporting, attending DUI school, attending a victim impact panel, the payment of various fees and fines, and not driving or picking up new criminal charges. In terms of operation of a motor vehicle in violation of a drivers license suspension, the definition of what constitutes a motor vehicle can also be fairly broad, encompassing many of the scooters popular to cruise around the beach in Fort Lauderdale.

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Cincinnati Bengals’ Rey Maualuga Avoids NFL Suspension

Athlete DUI

Cincinnati Bengals’ linebacker Rey Maualuga was convicted of drunk driving earlier this year. His conviction stemmed from a raucous January night in which he crashed into two parked cars while under the influence of alcohol. For his actions he recieved a 7 day suspended jail sentence, a 90 day drivers license suspension and some probation conditions.

It should be noted that NFL players also can receive a penalty from the NFL itself through the commissioner’s office. Maualuga dodged a bullet and so did the Bengals organization. Rodger Goodell, the NFL Commissioner, did not order a game suspension. Instead Maualuga will give up two gameday paychecks.

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Cincinnati Bengals’ Rey Maualuga Avoids NFL Suspension

Athlete DUI
Cincinnati Bengals’ linebacker Rey Maualuga was convicted of drunk driving earlier this year. His conviction stemmed from a raucous January night in which he crashed into two parked cars while under the influence of alcohol. For his actions he recieved a 7 day suspended jail sentence, a 90 day drivers license suspension and some probation conditions.
It should be noted that NFL players also can receive a penalty from the NFL itself through the commissioner’s office. Maualuga dodged a bullet and so did the Bengals organization. Rodger Goodell, the NFL Commissioner, did not order a game suspension. Instead Maualuga will give up two gameday paychecks.

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