DMV Win at an Administrative Per Se Hearing at the San Bernardino DSO
CategoriesAdministrative Per Se, Recent Victories
California Drivers Advocates was retained to defend a client whose driver license was being suspended by the California Department of Motor Vehicles following an arrest for DUI in which he allegedly was driving with a Blood/Alcohol Concentration more than twice the legal limit.
On the evening of February 26, 2017, our Client was driving in the City of Riverside when he made an inappropriate turn that caused his tires to become wedged in between a set of railroad tracks. This effectively placed him in the center of a very active railroad line and created an incredibly dangerous situation. The matter was further complicated by the fact that the entire driving event was witnessed by two on-duty police officers. The officers immediately extracted our Client from his car and then shut down the railroad tracks to prevent a collision with a freight train that was just minutes away.
After the scene was made safe, our Client admitted consuming alcohol prior to driving and was ordered to participate in a DUI investigation. The Officer's report would later allege that our Client's eyes were bloodshot and watery, that there was a profound odor an alcoholic beverage on his breath and that he dropped his cell phone. The Officer administered a series of Field Sobriety Tests that he felt our Client performed poorly. Our Client was subsequently detained for suspicion of DUI and was transported to the Riverside County Jail where he submitted to a chemical blood test that estimated his alcohol level at .17%.
When he was released, our Client's driver license was confiscated and he was issued an "Order of Suspension" advising him that the DMV was initiating the process to suspend or revoke his license. The order further told him that to defend himself; he was required to contact the Department within ten days to schedule a hearing.
DMV's Position
The California DMV has no discretion in matters of this nature. If a driver is found to have been driving a motor vehicle with a Blood/Alcohol Concentration of .08% or greater, the Department must move to suspend or revoke that person's privilege to drive.
To take a Suspension or Revocation action in a DUI case, the DMV must establish the following issues:
Did the Peace Officer have a lawful reason to come into contact with the driver and upon doing so, have reasonable cause to believe that he had been driving in violation of the Vehicle Code?
Was the driver lawfully arrested?
Was the driver operating a motor vehicle with a blood/alcohol concentration of .08% or greater, by weight of alcohol.
Our Defense
When our client retained us, we immediately went to work to schedule his Administrative Per Se Hearing with the San Bernardino Driver Safety Office. When our request was granted, we also asked the Department to place a "Stay" on the suspension. This means the DMV stops the suspension until the outcome of the hearing. This can be critically important for a driver as a case of this nature could take months to resolve.
Once the Hearing was scheduled and a Stay was granted, our defense began with a detailed interview of the client to determine his complete medical history, driving history, criminal history and the events leading to his arrest.
Once we received the police reports from the DMV (referred to as Discovery), we conducted a critical review of that material. Based upon that review, we issued a series of Subpoenas which directed the Police Agency to release certain items of evidence that we considered important.
One of the most important factors in any DUI hearing is whether or not the DMV possesses sworn evidence of a lawful arrest for DUI and the time that arrest occurred. In reviewing our Client's case, we discovered the arresting officer had erred by not documenting an arrest or a time of arrest in his sworn report. Although the time of arrest was properly documented in another report, that particular document was not admissible as evidence as it had not been prepared in a timely manner, thus there was no evidence of a lawful arrest.
When our hearing began, the DMV Hearing Officer recognized that her evidence was lacking and therefore she subpoenaed the arresting officer to appear for live testimony. This tactic is often employed by the DMV to gather sworn testimony to correct or "cure" the problems in the police reports. When we appeared for the hearing the first time, we were astonished to discover that the police officer did not appear. The DMV Hearing Officer granted the department two more continuances and subpoenaed the officer two additional times, but each time the he did not appear.
At our fourth appearance, the officer again did not appear and the DMV was forced to proceed without his testimony. Without the officer's testimony to explain the deficiencies in the reports, we were able to successfully argue that the DMV lacked sufficient admissible evidence to sustain the suspension of our Client's driver license. As the hearing concluded, the Hearing Officer took the extraordinary step of issuing a "Set Aside" on the spot. Essentially, the case was dismissed and our Client's driving privilege was saved.
This is a perfect example of how attention to detail, knowledge of the law, and perseverance saved the day.
Call CDA Today. Let us protect your driving future. The DMV Defense Experts at California Drivers Advocates include former police officers, DMV Hearing Officers, Investigators and Scientists. Our training, our experience and our reputation provide any driver the best opportunity to win their Administrative Per Hearing.
If your driver license is being suspended or revoked for a DUI arrest, don't give up. Don't let the DMV steal your driver license without a fight. Call CDA today, we can help.
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