California Government Code §11514
(a) At any time 10 or more days prior to a hearing or a continued hearing, any party may mail or deliver to the opposing party a copy of any affidavit which he proposes to introduce in evidence, together with a notice as provided in subdivision (b).
Unless the opposing party, within seven days after such mailing or delivery, mails or delivers to the proponent a request to cross-examine an affiant, his right to cross-examine such affiant is waived and the affidavit, if introduced in evidence, shall be given the same effect as if the affiant had testified orally. If an opportunity to cross-examine an affiant is not afforded after request therefor is made as herein provided, the affidavit may be introduced in evidence, but shall be given only the same effect as other hearsay evidence.
(b) The notice referred to in subdivision (a) shall be substantially in the following form:
The accompanying affidavit of (here insert name of affiant) will be introduced as evidence at the hearing in (here insert title of proceeding). (Here insert name of affiant) will not be called to testify orally and you will not be entitled to question him unless you notify (here insert name of proponent or his attorney) at (here insert address) that you wish to cross-examine him. To be effective your request must be mailed or delivered to (here insert name of proponent or his attorney) on or before (here insert a date seven days after the date of mailing or delivering the affidavit to the opposing party).
This code section is a very effective tool for the attorney representing a driver after a DUI arrest. The DMV license suspension hearing, also referred to as the APS hearing, is an opportunity to delve into the client’s case. Many times the DMV hearing is more important to the driver, as the client is facing a hard suspension of their drivers license resulting from the administrative suspension. It is crucial to understand all relevant sections of the Administrative Procedure Act, and this is one.
California Government Code §11514 allows the driver to submit, through his lawyer, an affidavit or declaration from a witness — including the driver. If the notice is provided to the DMV — in the form stated above in section (b) — that affidavit “shall be given the same effect as if the affiant had testified orally.”
This includes expert witness testimony as well as eye witness testimony. If the lawyer mails the written statement to the DMV with the notice provided in section (b), the DMV has seven days from that date to provide the attorney with a written request that they be allowed to cross-examine that witness. If the DMV fails to provide a written response within seven days, their right to cross-examine the witness is WAIVED and holds the same weight as ORAL TESTIMONY.
*The fact that the right is waived is important; the DMV hearing officer cannot call for a continuance based on the introduction of the declaration (to subpoena counter-testimony).
PRACTICE TIP: If an expert witness is going to testify at the DMV hearing, submit a written declaration / affidavit of that testimony. The DMV must respond within 7 days — in writing — requesting that expert to testify. If they fail to send it, the affidavit is given full force as oral testimony. If they do send the written request, the expert will show up and testify — but now the DMV does not have the right to call for a continuance; they must have brought in their own expert to counter that testimony because of the prior notice. IF THEY DO NOT, THE ATTORNEY HAS JUST REBUTTED THE PRESUMPTION WITH UNCONTROVERTED EVIDENCE. Any contrary decision made by the hearing officer disregarding that evidence is now “arbitrary and capricious,” conduct that requires the DMV to pay attorneys fees in a writ of mandamus hearing. (See HERE.)
Even if the DMV does provide a written response within seven days, the lawyer may still introduce the declaration as hearsay evidence, provided they lay the proper foundation for the document. It doesn’t hold the same weight as oral testimony, but may be used as un-rebutted evidence.