A recent story on KSL news and KSL.com reported that the no show rate for police officers at DUI Driver License hearings has increased last year to 23 percent. Apparently some of the officers are blaming this increase on the fact that the officers do not have legal representation at those hearings, and therefore some officers intentionally don’t show up so that they don’t have to be subject to the cross examination by the defense attorney. In an attempt to try to resolve this issue for officers and shield them from the questioning of a good DUI defense attorney, a few years ago the driver license division unilaterally changed its policy of allowing defense attorneys to cross examine officers during driver license hearings and adopted a new policy eliminating the right to cross examine officers. Some attorneys and DLD hearing officers fondly referred to this change in policy as the “Schatz Rule.” Since apparently I was one of the primary causes of this change (my success rate at DLD hearing is a little more than 50%), I felt it was my responsibility to combat this unfair and unconstitutional practice. Following the rule change, our office fielded a flurry of appeals in the District Court and eventually succeeded in convincing numerous District Court Judges that the refusal to allow defense attorneys to cross examine police officers at DLD hearings violated our clients’ rights to Due Process, and several judges began to remand the cases back to the DLD to redo the hearings and required that I be allowed to cross examine the officer at those hearings. Interestingly enough, when the cases went back to the DLD for a re-hearing, more often than not the arresting officer failed to appear. The DLD subsequently repealed the policy, and defense attorneys are once again allowed to cross examine police officers–but the DLD hearing officers have become increasingly protective of the police officers, and they themselves are limiting the scope of cross examination, sometimes to the point that the right to cross examine is rendered meaningless anyway with claims that the attorney’s questions are “irrelevant” and that “they do not need to know those things” in order to reach a decision. A decision in favor of whom? And how can you make a decision without all the facts? In some instances, hearing officers have even refused to watch the officer’s dash cam video, stating that the “officer’s testimony will suffice for this hearing.” But what if the officer lied? If an officer did his job correctly, wrote an accurate report and testifies truthfully, he or she should have nothing to fear from the cross examination from the defense attorney. But in many cases, a thorough cross examination of the officer is the only way to properly determine if the officer did his job and whether or not there is sufficient evidence to warrant a suspension.
At a driver license hearing, my client’s ability to drive for the next 4 to 36 months is at stake, and a suspension may cause them to lose their job, lose their home, and render them unable to provide for their family. So yes, these hearings are IMPORTANT!!! And yes, I am going to come at you with everything I’ve got to try to protect and preserve my client’s rights!!! Maybe we need to remind these officers who are scared to come to hearings without their attorney that our clients don’t have the benefit of their attorney when they have to deal with the officer in the field. There should be no sympathy for these officers. Keep in mind that all police officers receive training on how to testify in court and at driver license hearings, and in some instances have testified hundreds of times previously. To the contrary, the driver (my client) has received no training on how to deal with a police officer, and in many instances has never been in trouble with the law. So to those officers who are complaining about the driver license hearing process and the cross examination they receive from defense attorney (me in particular), testifying at DLD hearings is part of your job, a part which you are trained to do and get paid to do. So if you are going to make DUI arrests, you had better be prepared to back it up with testimony. And in the case you were the officer who arrested one of my clients, you had better be prepared to be subjected to a thorough and aggressive cross examination. So if you can’t take the heat, get out of the kitchen!