California DUI DMV APS Manual – 2.100 “Continuances”, 2.101 “Good Cause”, & 2.102 “Continuance Justification”

The updated 2011 California DMV’s Manual seems to have went from specific reasonable criteria for granting continuances in DUI APS cases to an extremely broad discretion for allowing “acceptable reasons” or “abstract” justification for continuances.

Not surprisingly, in practice, DMV makes it very difficult if not impossible for California DUI attorneys to continue a scheduled hearing while liberally granting itself continuances when convenient.

The previous California DMV Driver Safety Manual reasonably attempted to limit continuances.  This meant San Diego DUI lawyers could point out that DMV should deny continuances to themselves when DMV was not ready to proceed and when there was no “good cause.”  Continuances were specifically based on legitimate reasons such as a non-appearance of an essential witness “because of an unavoidable emergency” or a driver appearing without a defense attorney for the hearing but decides to get a lawyer.

The issue always is whether or not there is legal “Good Cause” for a continuance.

The DMV Driver Safety Manual, Chapter 1, “Definition of Good for a Continuance” and the DMV Memorandum to Attorneys dated February 18, 2004 reflected DMV’s previous official view of what is generally “good cause” for a continuance:

“1.  Lack of proper notice.

2.  Death, injury, or illness of the attorney, driver, or essential witness (hearing officer may ask for doctor’s note concerning injury or illness).

3.  Unavailability of the attorney, driver, or essential witness due to an unavoidable event which could not reasonably have been anticipated and there is no substitute of an available actor which would allow a fair hearing to proceed.  This includes a mandatory court appearance, but be prepared to provide the name, case number, and court where the appearance is required, and move for the continuance as soon as the conflict is learned.

4.  Significant change in the status of the case which could not reasonably have been anticipated.”

Section 2.100 [CONTINUANCES] p. 2-33 of the updated Manual states:

“Upon assigning a case to a specific hearing officer, the continuance can only be granted by that hearing officer.  Any party to the action, including the department, may request a continuance.  A continuance can only be granted for ‘good cause’ and must be made within the time it should have been ‘reasonably’ discovered that there was an event or occurrence establishing good cause for the continuance.  The continuance may be granted if the party seeking the continuance is not responsible for the continuance and a good faith effort was made to prevent the need for a continuance.

If the continuance for good cause is denied, judicial review of the denial can be requested within ten (10) working days of the denial pursuant to Section 11524(c) GC (Government Code).  In order to preserve the record, documentation of the circumstances of the denial must be maintained in the driver’s case file.  (See DSUP Section IV, PROCESSING HEARING REQUESTS, Sub-Section IV .047, Continuance Not Granted.)

If the continuance is granted, a written response is not required when verbal notification can be made to the party on record of the new date and time.  If verbal notification cannot be made, the department will submit a written response to the requesting party (respondent or attorney).  See DSUP, Section IV, PROCESSING HEARING REQUESTS, Sub-Section IV.045, CONTINUANCES.)”

Now, instead of pointing to case law requiring a specific and strong showing of “good cause,” DMV’s 2011 updated Manual [2.101 Good Cause, p. 2-34] quotes Black’s Law Dictionary, defining “Good cause” as:

“(A) substantial reason, one that affords a legal excuse.  Legally sufficient ground of reason.  (The) phrase “good cause” depends upon circumstances of (the) individual case, and finding of its existence lies largely in the discretion of (the) officer or court to which the decision is committed.  ‘Good Cause’ is a relative and highly abstract term, and its meaning must be determined not only by the verbal context of statute in which term is employed but also by context of action and procedures in the type of case presented.”

“2.102  Continuance Justification

The verbal or written justifications that may be submitted requesting a continuance should be made part of the official record.  State on the record the source of the request, reason for request, and the decision for continuance.

The following examples may be acceptable upon receipt of written documentation or verbal request for a continuance,

• Subpoena returned unclaimed, additional time needed to re-subpoena.
• Subpoenaed witness, e.g. expert, law enforcement officer, could not appear on date of hearing with acceptable reason.
• Attorney recently hired, time not sufficient to review discovery.

If an attorney states the hearing conflicts with another court appearance, obtain the court location and case number of the conflicting case.  If necessary, verify the court calendar to confirm the case is scheduled.”

That is all DMV put in its new Manual.

What is NOT in the DMV Manual is some basic California law:

The California Administrative Procedure Act (APA) allows continuances only for good cause under Government Code Section 11524.  [See Arnett v. Office of Administrative Hearings (1996) 49 CA4th 332, 342; 56 CR2d 774.]  There is simply no absolute right to a continuance. (Id, at pp. 342-343.)

California Code of Civil Procedure Section 595.4 also provides that a continuance motion in a trial or hearing in the case of the absence of evidence or a witness can only be made upon affidavit showing the materiality of the evidence expected to be obtained and that “due diligence has been used to procure it…”

These two California statutes share the fundamental principle that each party is expected to adequately prepare beforehand and be prepared with its evidence to proceed.

Government Code Section 11524(b) states:

“When seeking a continuance, a party shall apply for a continuance within 10 days following the time the party discovered, or reasonably should have discovered, the event or occurrence which established the good cause for the continuance, a continuance may be granted for good cause after the tenth working day has elapsed if the party seeking the continuance is not responsible for, and has made a good faith effort, to prevent the condition or event establishing the good cause.”  (emphasis added)

In Wilke & Holzheiser, Inc. v. Department of Alcoholic Beverages (1966) 65 C2d 349, 376, 55 CR23, the California Supreme Court upheld the denial of a motion for a continuance where the moving party sought to produce additional evidence in its favor.  There was no showing of due diligence on the part of the moving party, nor was there a showing of any materiality of the “new” evidence.

Clearly, there is no “good cause” nor “due diligence” on the part of the California DMV when it altogether fails to properly subpoena an officer or other witness in the first instance.

Is it fair for DMV to simply stroll into a hearing months after its date is known and announce that preparation was begun just prior – or a few days prior – to the hearing, and DMV then discovered that the Department lacks an affirmative or prima facie case to present and needs more time to prepare?

Is it likewise fair for a DMV hearing officer to listen to an opponent’s evidence and then, after hearing it, decide she or he needs more time to prepare and present a better opposing case?

Or should DMV – without further bias – fairly play by California laws & rules when it comes to granting itself continuances?