Is Answering Hearing Officer Violate Privilege Against Self-Incrimination ?
Appellant asserts that requiring him to answer the questions of the Hearing Officer would violate his privilege against self-incrimination.
This privilege is guaranteed by the Fifth Amendment of the U.S. Constitution, as applied to the States through the Fourteenth Amendment, as well as by Article I, 7 of the Delaware Constitution of 1897.
The record of the hearing reflects that the privilege was asserted by Counsel and not Appellant.
Therefore, even if there were a remote possibility that the answers could incriminate the Appellant the claim is inadequate.
"The privilege against self-incrimination is a personal one to be claimed by the party under oath, and not by his attorney.
A party cannot avoid interrogation, in vacuuo, by merely stating that his answers may tend to incriminate him." Steigler v. Insurance Company of North America, Del. Supr., 306 A.2d 742 (1973).
"Although the privilege is not ordinarily dependent upon the nature of the proceeding in which the testimony is sought or is to be used and applies alike to civil and criminal proceedings, it is only available wherever the answer might tend to subject to criminal responsibility him who gives it...," 8 Wright & Miller, Federal Practice and Procedure: Civil: 2018, citing Justice Brandeis.
The purpose of this driver's license revocation proceeding is not to subject Appellant to criminal responsibility, but to protect the public. Broughton v. Warren, 281 A.2d at 629; State v. Kamalski, 429 A.2d at 1318; Witsch Motor Vehicle Operator License Case, 168 A.2d at 775.
The Division points out that in this case, unlike an administrative hearing pursuant to 2742, there has been a conviction for driving under the influence and that it was this conviction that caused the initiation of further proceedings.
The Hearing Officer could only have found the answers to his questions to be reasonably self incriminatory by ignoring the foregoing conviction. See Steigler v. Insurance Company of North America.
The claim of the privilege against self incrimination in this civil administrative proceeding is no more than fanciful.