Refreshing Recollection at a DMV Hearing

by Jamison Koehler on January 22, 2015

DEFENSE COUNSEL:  Objection.

HEARING EXAMINER:  Basis?

DEFENSE COUNSEL:  I would ask that the officer testify from memory and not read from his report.

HEARING EXAMINER:  Officer, are you testifying from memory or are you using the report to refresh your recollection?

OFFICER:  I am using the report for recollection.

HEARING EXAMINER:  Okay.  And are you relying solely on the report or are you relying on your memory and the report?

OFFICER:  Solely on the report.  I was just going to add something on the respondent’s demeanor and cooperation.

HEARING EXAMINER:  Do you have independent knowledge of the situation?

OFFICER:  Yes.

HEARING EXAMINER:  So you are using the report to refresh your recollection or are you using the report because you don’t have any recollection?

OFFICER:  I do have recollection.  I don’t want to misspeak.  Because this is an administrative hearing, I have done that many times in the past.  I have never been told that it was not allowed.

HEARING EXAMINER:  Okay.

OFFICER:  So if that is something that is not allowed, this is a first and I would have studied it a little bit more carefully if I need to be verbatim from memory.

HEARING EXAMINER:  Okay.  Counsel, I overrule your objection.  He is using it to refresh his memory.

DEFENSE COUNSEL:  I understand but if you overrule my objection –

HEARING EXAMINER:  — I am moving on.

DEFENSE COUNSEL:  I would ask that he put the report away.

HEARING EXAMINER:  No, no, no, no.

DEFENSE COUNSEL:  That’s –

HEARING EXAMINER:  — He can use the report to refresh his memory.  Officer, please continue.  Proceed.  You started with the date.

OFFICER:  On September 23, 2014, I received a radio run –

DEFENSE COUNSEL:  — Madam Examiner, I would note for the record that he is reading from his report.

HEARING EXAMINER:  Okay.  That’s fine.  Because what I don’t want you to do is belabor.  I have already made the ruling.  And I understand, counsel, that you don’t agree with the ruling.  I completely understand that.  But my ruling is, he is allowed to use the report.  This is an administrative action.  I am not going to tell him to put the report away.  I have already made my ruling so I would ask that you refrain from making the same objection.

DEFENSE COUNSEL:  Well –

HEARING EXAMINER:  — Because I have already ruled.  Your objection is on the record.

DEFENSE COUNSEL:  Actually I am now making a different objection.  The court – Madam Examiner – has already made a legal ruling on the officer’s ability to use the report to refresh his recollection.  I am now asking the court to make a factual finding that the officer is in fact reading directly from the report.

HEARING EXAMINER:  My factual finding is that he is using the report to refresh his memory.  And he can do that.   That is allowable.

DEFENSE COUNSEL:  Madam –

HEARING EXAMINER:  — Okay.  That is allowable.  Officer, proceed please.

OFFICER:  On September 23, 2014, I received a radio run that Officer Jones had stopped a motorist he believed was impaired . . .

DEFENSE COUNSEL:  Madam Examiner.  If you read the transcript from this hearing and you compare it to the officer’s report, you will see that he is reading from the report verbatim.

HEARING EXAMINER:  My response, counsel, is the same.  I clearly understand that you do not agree with my finding.  That’s your right.  But I have said the officer does not need to put, the officer does not have to put the report away.  He can use it, he is using it to refresh his memory.  Proceed, officer, please…

4 Comments on “Refreshing Recollection at a DMV Hearing

  1. Kristi: Always nice to have you visiting and commenting. The DMV seems to have its own rules when it comes to everything, including evidence.

  2. I hope you will excuse a lay question:

    “So if that is something that is not allowed, this is a first and I would have studied it a little bit more carefully if I need to be verbatim from memory.”

    So…that would be the officer’s recollection of what he read in his report when he studied it earlier? As opposed to his recollection of the actual situation he’s testifying about? I’m not sure, but I think I sense a certain legal fiction being rubbed a little bit thin…

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