Presumed Innocent – Unless You’re Poor

The DMV continues to punish the poor. Welcome to the wisdom of Sacramento: if you want to participate in this democracy, pay up.

In a time of economic upheaval, the Sacramento legislators have once again implemented the “Pay-to-Play” approach to holding the government accountable. As of January 1st, 2013, that cost nearly doubled.

People are often shocked to find out there are two separate prosecutions by the government when you are arrested for DUI in California. Of course, they don’t call the DMV administrative action a prosecution, but it’s hard to find a better word.

Once arrested for DUI, a person faces two separate driver’s license suspensions. The first, called the APS suspension (Administrative Per Se), is an upfront quickie punishment: a four-month drivers license suspension. You’re entitled to a hearing, in front of a DMV employee, to litigate whether there was legal cause for the suspension. If you lose the hearing, you begin SUSPENSION NUMBER ONE. If you are convicted in court for the same DUI, you begin SUSPENSION NUMBER TWO.

At the DMV, for the driver’s license suspension (SUSPENSION NUMBER ONE), the following applies:

— You have the right to a lawyer, but no public defenders. You gotta pay out-of-pocket. If you’re making minimum wage and supporting a family in California, say goodbye to your driver’s license. I know, you haven’t been convicted of anything, but the government made the accusation and you can’t afford to fight it. Sorry guys. Work harder. Pull yourself up by your bootstraps. And stop getting accused of wrongdoing by the government.

We all know the government never gets it wrong. 

— You have the right to subpoena witnesses, including the officers that arrested you. But… you gotta pay for that too. And it just got more expensive.

For instance, if you wish to exercise your right to subpoena the police officer who made the accusation in the first place, you pay a deposit of $150 to secure their presence.

If it’s the CHP, they charge a minimum of four hours overtime. I know, you’re given less than a hour for the hearing, and the officer testifies for about 15 minutes, but hey… don’t get accused by the government. 

Now, as of January 1st, Government Code § 68097.2 raised that $150 deposit to $275. Of course, subsection (c) allows you to get a portion of your deposit back if “actual expenses should later prove to be less than the amount tendered…”

How do you “later prove” those expenses were less? You can’t. There is no hearing. There is no mechanism for accounting. 

Trust us. We’re the government.

WHO REALLY SUFFERS? The poor. The people who drive to work at jobs paying next to nothing. They can’t afford an attorney, so they can’t get a hearing. The notice they receive upon arrest even erroneously instructs that they have the burden to prove the suspension was not justified. It’s absolutely incorrect, as virtually every appellate court decision has recognized the DMV’s burden of proof, but…. how would you know if you can’t afford an attorney?

Now, they’ve nearly doubled the cost of subpoenaing the arresting officer. And thanks to recent failed litigation in the appellate courts, the attorney is now liable for the costs of the subpoena.

*Note: the CHP has also created a policy as of January 1st, 2013, where the check for the subpoena must come from the attorney. They will return the subpoena if it is written from the client. 

But, what about the poor? The people that are representing themselves, those operating under the incorrect belief they have to prove their innocence to the DMV? The subpoena has to come from the attorney. No attorney, no subpoena. No subpoena, no right to cross-examine witnesses. 

WHAT’S THE INTENDED EFFECT? Deterrence against exercising due process of law. America has the greatest system of justice in the world. But you gotta have money to access it. Pay to play. 

All of this before the court begins its prosecution of the charges. It’s all based on an accusation, with a presumption of innocence.

And if you want a laugh, truly consider this prospect:

The DMV administrative scheme was created to protect the public from drunk drivers by removing their license to drive as soon as possible. If you buy that public policy, you have to believe the underlying premise: I’m stumbling toward my car, keys in hand, ready to drive drunk. But I SUDDENLY decide not to drive because if I get pulled over, they’ll realize my license is suspended. 

Who comes up with this logic? It’s a joke. The notion that a drunk guy won’t drive because his license is suspended….. Mind-boggling stupidity. The entire premise upon which the DMV administrative scheme is based is absolutely absurd. And Californians pay millions in taxes to support this scheme.

DUI-defense attorneys, including myself, are not on a crusade to legalize driving under the influence. We are defending the citizen accused. This never-ending erosion of due process and increasing control by the government should bother every citizen. It should worry you. It will not be long before we have to register weapons with the DGC (Department of Gun Control).

It’s time to demand an end to the DMV’s administrative scheme. Let the judges in criminal court sentence those found guilty. Let the punishment occur upon conviction, not accusation. And for God’s sake, can we give the poor in this country a friggin’ chance? 

* See the new statute HERE.

* See the Assembly Bill HERE.


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