DMV Victory – APS Hearing -San Diego Driver Safety Office

Case History: California Drivers Advocates was engaged to assist a client whose driver license was in jeopardy of being suspended following a DUI arrest in San Diego, CA.  Our 50 year old client was attending a birthday celebration for a friend at a restaurant in the Harbor area of San Diego.  After a night of partying and drinking, our client walked to his car that was parked in a public parking lot across the street.

Our client recognized that he was too impaired to drive and made the correct decision to not endanger the public.  It was a cold November night near the ocean and so when he got into his car, our client turned on the engine to run the heater.  At that point, he put his seat back and fell asleep.

Hours later, a patrol officer with the San Diego Harbor Police discovered our client’s car parked in the same location with the engine running.  The officer contacted our client to check on his welfare.  Despite our client’s protest that he had not driven the vehicle after drinking, the officer arrested him for DUI.  Later in the jail, our client submitted to a chemical breath test which resulted in a blood/alcohol reading of .16%.

DMV’s Position: The California DMV’s position was crystal clear. Under the “Official Duty Presumption,” the DMV Hearing Officer presumed the arresting officer had a lawful reason to contact our client.  The DMV Hearing Officer further believed that our client had “functional control” of the vehicle because he was in the driver’s seat with the engine running.  Finally, the DMV believed that our client had been driving a motor vehicle with a Blood/Alcohol  concentration that was twice the legal limit. When we walked in the door, the DMV presumed our client’s guilt and was challenging us to prove them wrong.  Essentially our client was “guilty” until proven innocent.

 Our Defense: The defense of our client began with us immediately contacting the DMV to request a hearing at the San Diego Driver Safety Office.  We were also successful in getting an immediate “Stay of Suspension” so our client was permitted to continue driving as we took the next 5 months to prepare his case.

A key element of any good DMV defense is a complete investigation of the evidence.  After receiving the police reports from the DMV, we issued a series of subpoenas asking for the production of such items as Dispatch Logs, Audio/Video Recordings and the Calibration and Maintenance Records of the breath device used in the arrest of our client. We conducted a “scene inspection” to be familiar with the location and other facts, such as the distance from the restaurant to where our client was parked.

As the hearing date grew near, the DMV recognized the weaknesses in their case and notified us that they had subpoenaed the arresting officer in an attempt to cure the problems in the case through his testimony. Twice we appeared at the San Diego Driver Safety Office ready to begin the hearing and twice the arresting officer did not appear.  The DMV Hearing Officer twice granted herself a continuance in order to re-subpoena the arresting officer for his live testimony.

Finally, on the third appearance, the Hearing Officer actually convened the hearing.  The arresting officer had again failed to appear but this time; the hearing officer sustained our objection for any further continuances and proceeded in the case.  There is very strong case law that mandates that driving be proven.  In our case, the officer did not see movement of the car, our client denied driving, and there were no independent witnesses.

In 1991, the California Supreme Court heard the matter of Mercer v. DMV.  Ultimately, the high court ruled that in order to satisfy the element of driving, there must be evidence of “volitional movement” of the vehicle.  Without that evidence, driving is not proven and there can be no lawful arrest for DUI.  Using our collected evidence and arguing case law, we presented a case that without some movement of the vehicle, the DMV could not lawfully suspend our client’s driver license.

Conclusion

At the conclusion of the APS Hearing, the hearing officer took the extraordinary action of telling us on the spot that we had won and that she would not be suspending our client’s driver license.  Two weeks later, we received official notice that the hearing officer had “Set Aside” the suspension and our client’s driving privilege was fully reinstated.    Our client suffered no APS suspension, was not required to attend a DUI school, and was not required to purchase an SR-22 Form.  This is similar to being found “Not Guilty” by a jury.    As a result our client is driving safely and remains committed to sober driving.  The lesson here is that even when a driver chooses to do the right thing. Even when a driver decides to obey the law and not drive while impaired, things can go wrong.  Correcting such an error requires quality DMV defense.

Call CDA Today.  Let Us Go to Work on Your Case.

The DMV Defense Experts at California Drivers Advocates have been fighting and winning DMV Administrative Per Se hearings for years.  We excel at every type of administrative hearing handled by the DMV and have a history of winning.  Call us and let us get you back on the road.