Legal Question in Military Law in California

administrative authority and due process

Law Guru,

Here at Edwards Air Force Base the local commander is revoking driving privileges on base for minor infractions of the California Vehicle Code such as speeding.

He normally has an administrative hearing to determine the length of the driving suspension before the case goes to court. The commander's deputy asks the accused to bring everything that will be presented in defense to the court to the administrative hearing first. Most of the time administrative hearings are held before the discovery package is received by the defendant. The commander receives the complete defense with his Judge Advocate empaneled with him on the administrative board. The Judge Advocate then takes the defense and prosecutes the person in U.S. Magistrate's court.

I believe this to be a due process foul and prosecutorial misconduct on the part of the Judge Advocate. What is your expert opinion?

Thanks,

Dave Miller


Asked on 3/11/09, 4:49 pm

1 Answer from Attorneys
Donald G. Rehkopf, Jr. Brenna, Brenna & Boyce, PLLC

Re: administrative authority and due process

What this case is really about, is the need for a competent lawyer to represent the "alleged" offender.

There are two ways to look at this legally. First, the Administrative "hearing" should be adjourned until after the US Magistrates Court, on the basis that you cannot be forced to either give up your right to remain silent or your right not to incriminate yourself, unless or until you either plead guilty or are found guilty in a criminal [US Magistrates] court.

Alternatively, if you are forced to go to the Admin hearing first and they refuse to adjourn it, and "punish" you, a lawyer could then file a Motion to Dismiss the charges in MAG Court on the basis of double jeopardy, i.e., you've already been punished for the "same" offense.

This isn't something that the Commander came up with - it's an old JAG trick that's been around for a long time and periodically resurfaces again.

If you have any other questions email me at

[email protected]

Regards,

Don Rehkopf

Read more
Answered on 3/11/09, 5:43 pm


Related Questions & Answers

More Military Law questions and answers in California