DMV Hearings for LA DUI Cases
Summary of DMV Hearing and Consequences
The DMV takes action on a motorist’s license independent of the California Court System. An Administrative Per Se hearing is simply a hearing to determine if your Driving privileges should be suspended. It is a complicated hearing. Upon being arrested for a DUI, you must contact the DMV within 10 days to stay the suspension of your license pending the resolution of the Administrative Per Se Hearing. This type of hearing is called an Excessive B.A.C. hearing. A failure to contact the DMV within 10 days of arrest will result in an automatic applicable license suspension for whichever time period corresponds to your driving record. The suspension can range from 4 months to 1-3 years. If you have missed the 10 day deadline, reach out to a Los Angeles criminal defense lawyer at our firm immediately to try and schedule a late hearing request and recover your driving privileges.
Adults who refuse the blood, breath or urine test or minors who refuse the PAS (Preliminary Alcohol Screen) and/or blood, breath or urine test face a minimum one year license suspension. This type of hearing is called a Refusal hearing. There are unique issues to a Refusal hearing. Before hiring a DUI lawyer to handle your DMV Administrative Per Se hearing, make sure to inquire about the lawyer’s experience with DMV Administrative Per Se hearing laws and case law.
Hearings are complicated and require expertise to know which witnesses to subpoena; evidence to present through testimony, affidavit or declaration, expert testimony; correct legal objections to police reports and alcohol tests/procedures, challenges to refusals and a myriad of issues. Adults will lose their license for four months for a first violation of Vehicle Code Section 23152, and for a year or more if there is a subsequent violation within seven years. Vehicle Code Sections 23136 and 23140 govern minor alcohol offenses. Minors are subject to the DMV “Zero Tolerance” laws and lose their driving privileges for one year if unsuccessful with the DMV Administrative Per Se hearing. You must hire experienced counsel to win a DMV Hearing. It would be beneficial bto be familiar with California DUI Laws to help your case.
At the DMV Hearing
- DMV Evidence
The DMV will produce some or all of the following documents for the Administrative Per Se Hearing:
[] Copy of my letter requesting discovery
[] DMV request for discovery
[] Form DS 367
[] Supplement
[] CHP 2020 Pages 1-5
[] Arrest/Intoxication Report
[] Accident Report
[] Test Record
[] Checklist
[] Laboratory Report
[] PAS Report
[] Field Arrest Data/Booking Report
[] Evidence Report
[] Storage Report
[] DS 360
[] Notice of Hearing
[] Continuance
[] Notice to Appear
[] Notice to Stay/Temporary License
[] Drivers’s Record
[] Copy of Driver’s License
[] PDOA Records
[] Probable Cause Statement (not marked)
[] Other: Request for hearing and supporting documents
- The Licensees May Present Evidence
Enclosed are the following suggested documents for filing in the above-entitled matter:
[] Experts’ Declaration
[] Licensees’ declaration
[] Periodic Accuracy Determination Records
[] Test Record/checklist
[] Subpoena and proof of service(previously supplied)
[] Other
[] The record should also include all correspondence regarding this matter.
Licensee’s documents are submitted under Evidence Code section 1280, Government Code sections 11513 and 11514, as affirmative evidence under the holding in Davenport v. Department of Motor Vehicles, (1992) 6Cal.App4 133,142 and are also submitted pursuant to the Order of Suspension which states in relevant part: “You may file the information you would like to present in written form. Failure to submit written evidence is a waiver of your right to a hearing.”
A Licensee should also submit Points and Authorities in support of objections to all evidence and exhibits presented by the Department.
It is Malpractice for an attorney to Handle a DUI case and not be familiar with Administrative Hearing Laws and Evidence Rules. Our criminal attorneys in Los Angeles can help you prepare for your Administrative Per Se hearing and save your license today.
DMV Hearing Issues Challenges
- No Reasonable Cause to Believe Driver Under the Influence
The first issue in an admin per se hearing is reasonable cause. The officer must have: “Reasonable cause to believe the person was under the influence of alcohol and/or drugs ”in violation of Vehicle Code Sections 23140, 23152 and 23153 (Driver Safety Manual Volume 2,p.12.50). The DS 367 Officer’s statement is used to support an opinion or “reasonable belief” the Licensee was “under the influence.” An Officer may check off an observation box such as the one labeled, 1.” odor of alcohol”, which does not indicate impairment from drinking alcohol. At most, this observation indicates a reasonable belief that the licensee had something to drink or eat that caused an “odor of alcohol”. Even this is of little significance since the amount of alcohol and when consumed cannot be determined by smell. Additionally, alcohol is an ingredient found commonly in items other than alcoholic beverages, such as cough syrup, gum and chewing tobacco. An experienced DUI lawyer can challenge common errors as shown above in the DS 367 and errors in the remaining DMV evidence.
The second sub-issue of reasonable cause is whether there is reasonable cause to believe the person was under the influence of either alcohol or drugs or a combination of both. The officer must have reasonable cause, not proof, that the person was under the influence while driving. Be sure the Officer’s Statement or testimony includes the objective symptoms supporting his or her belief. It is simple for the officer to indicate these symptoms using the check boxes on the Officer’s Statement. These boxes include bloodshot/watery eyes, odor of alcoholic beverage, unsteady gait, and slurred speech. There is also a blank space to write in other symptoms, such as drowsiness, vomiting, poor balance, disheveled appearance, failure of field sobriety tests (FST) and preliminary alcohol screening (PAS). Objective symptoms of intoxication can also occur for reasons other than intoxication. Examples are: bloodshot/watery eyes can be due to crying, contact lenses, allergies, or other eye irritations.
Field sobriety tests are coordination tests which include various physical and or verbal exercises. A peace officer normally requests these tests to be performed to help the officer determine whether the person is under the influence. These tests must be explained accurately and are often poor indicators of the influence of alcohol on a driver. You must hire a DUI lawyer familiar with the various field sobriety tests and their shortcomings.
- No Probable Cause to Arrest
Probable cause to arrest, compared to probable cause to stop, requires the officer to have more facts to show that the person has been driving while intoxicated. More facts are required because an arrest is greater interference with the privacy and freedom of the driver.
In determining whether the police had probable cause to arrest an individual for DUI, we consider whether, at the moment of the arrest, the police had sufficient information, derived from a reasonably trustworthy source of facts and circumstances, sufficient to cause a prudent person to believe that the suspect was driving under the influence. Beck v. Ohio (1964) 379 U.S. 89,91.
California law requires more than odor and bloodshot eyes for a lawful DUI arrest. The cases require additional dangerous or erratic driving or other observations such as stumbling and failed FSTs.
Probable cause may exist when “the facts known to the arresting officer would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime”. People v. Price (1991)1 Cal.4 th 324,410, Cal.Rptr.2d 106. It is an objective standard. People v. Le (1985) 169 Cal.App3d 186,193, 215 Cal.Rptr. 106. In Scott v.U.S., the United States Supreme Court held that the objective standard requires taking into account the totality of the circumstances. Scott v .U.S. (1978) 436 U.S. 128,98 S.Ct. 1717.
Determining whether an officer had cause to arrest requires two analytically distinct steps, each with its own standard of review. First, the court ascertains when the arrest occurred and what the arresting officer then knew; second, the court decides whether the officer’s knowledge at the time of arrest constituted adequate cause. On appeal, a reviewing court must accept the trial court’s express or implied findings on factual issues in the first step of the inquiry if they are supported by substantial evidence, but a reviewing court must use its independent judgment to review the second step of the inquiry. People v. Duncan (1986) 42 Cal.3d 91,227 Cal.Rptr. 654.
If the driver, once stopped, does not appear intoxicated and passes the field sobriety tests, there is no probable cause to arrest for driving under the influence. Driver Safety Manual. Volume 2, page 12.71.
- No Probable Cause to Stop
Officers must have Probable Cause to pull a motorist over initially. A Motion to Suppress Evidence is an aggressive motion that can be filed to try and have charges dismissed in Court. The same challenge can be made at a DMV hearing It is legal for a person over the age of 21 to drive a motor vehicle with measurable amounts of alcohol in their system. It is not legal to drive with a Blood Alcohol Content that is above the legal limit. Quite often, Alcohol is not the cause of the alleged Vehicle Code Violations that lead an office to conduct a DUI stop. If the driving alleged can be shown to be the product of conscious good driving and not affected or caused by impairment from drinking alcohol, an effective challenge to Probable Cause to Stop may lead to a Set Aside of the Suspension by the DMV.
- Field Sobriety Tests Were Performed Satisfactorily
Often Field Sobriety tests are given and motorists perform them to the best of their ability. Such tests may include HGN (Horizontal Gaze Nystagmus-follow the pen or light), Hand Pat Test, Alphabet or Counting exercises, walking a line, Standing on One Foot and numerous others. Field Sobriety tests can be challenged and may be insufficient to show impairment from alcohol. It is important to hire an experienced DUI lawyer, familiar with Field Sobriety Test admonitions and instructions to challenge the results of a Field Sobriety Test in Court and at the DMV Administrative Per Se Hearing.
- The Breath, Blood & Urine Test Are Not Reliable
Similarly, the PAS Device (Preliminary Alcohol Screen) and the Blood, Breath or Urine test all have their pitfalls and may be discredited. Under Title XVII, alcohol results are only reliable if certain laws and regulations are followed. Sometimes violations of Title XVII by Officers result in inaccurate Blood Alcohol results. Sometimes the PAS Device or Breathalyzer are not working properly, malfunction, lack maintenance or are prone to high readings. When someone takes a breath test, the machine maintenance and calibration records as well as the officer's radio logs should be requested to see if the machine is working properly and whether the officer spent the required 15 minutes of observation time prior to the breath test (required by Title 17 of the California Code of Regulations). When someone takes a blood test, their attorney should request a "blood split" and have the sample sent to an independent lab for testing for preservative and to confirm the blood alcohol level. Also, if it has only been a short time since the last drink was consumed (usually within an hour of the traffic stop or accident), then some of the recently consumed alcohol may still be in the stomach and not yet even be digested or absorbed into your system. However, when a blood sample is taken an hour or so after driving that alcohol reading is actually higher than it really was at the time of driving. This is called a "Rising Blood Alcohol Defense" and is very persuasive in low blood alcohol level cases.
- Alcohol Test Results Inadmissible for Lack of Foundation
The officer, in the DS 367, always states “I am qualified to operate this equipment and that the test was administered pursuant to the requirements of title 17 of the California Code of Regulations.” The statement from the officer is qualified, in the DS 367, does not include a statement he was trained by a licensed laboratory as required by title 17. Further, the statement is a self-serving unfounded legal opinion. It is vague. The reference to “qualified” could mean only that he read the operator's manual from the manufacturer. Nothing more.
The reference to Title 17 relates only to the procedures regarding the operation of the machine. That part of the statement is not based on personal knowledge and is hearsay. Further, it is nothing more than an impermissible legal opinion.
Most times, there is no evidence the machine was maintained by a licensed forensic laboratory approved for this machine. There is no evidence the officer was trained on this machine by the laboratory licensed for this machine and that he followed the procedures approved by the State for this laboratory.
In People v. Williams, (2002) 28 C.4 th 408 the California Supreme Court held that the results of a PAS test are admissible in a DUI case for purposes of establishing the person’s BAC if a sufficient foundation is established under either People v. Adams (1976) 59 C.A.3d 559 or by proving compliance with Title 17 in the administration of the test. Thus, the California Supreme Court has determined the PAS test has similar evidentiary value to any post-arrest blood, breath or urine test.
