DMV Victory at an 2nd Offense APS Hearing at the San Bernardino DSO
Case History: California Drivers Advocates was engaged to represent a client whose driver license was in jeopardy of being suspended for one year following an arrest for 2nd offense DUI in the mountain city of Big Bear. Our 59 year old client has been an aircraft mechanic for a major airline for 30 years and is planning on retiring to a second home in Big Bear.
One night in December 2015, our client was in Big Bear completing some construction work on his retirement home. He left his home in the evening to join a friend in watching a sports event at a local bar. Over the course of several hours, he ate a full meal and drank 3-4 glasses of beer. When the evening ended, he walked to his truck and began the two-mile drive to his home.
Almost immediately he noticed that he was being followed by a Sheriff’s Deputy who had been parked in the shadows watching the bar. The deputy followed him for nearly two miles and then stopped our client near his home. The deputy alleged that our client had been weaving and then initiated a DUI investigation. The deputy evidently ignored our client’s complaint that previous physical injuries would make the performance of Field Sobriety Tests difficult, and demanded that our client perform.
Because this would constitute a second allegation for DUI, our client was facing the very real possibility of losing his driving privilege for one-year and although he held a senior position at his place of employment, the extended suspension of his driver license would have cost him his job. He made it clear that he desperately needed to win his DMV hearing.
When we received the police reports, we were not surprised to discover the arresting deputy had documented a series of bad driving events and other allegations that were incorrect and flat-out fabrications. It was clear that our client would have to testify to argue against the allegations.
DMV’s Position: The California DMV’s position was crystal clear. Under the “Official Duty Presumption,” the DMV Hearing Officer presumed the arresting deputy had a lawful reason to stop our client. The DMV hearing officer would also presume that everything in the police report was accurate, honest and that it required the arrest of our client.
When we walked in the door, the DMV presumed our client’s guilt and challenged us to prove them wrong. Essentially our client was “guilty” until proven innocent and the hearing officer intended to suspend our client’s license for one-year.
Our Defense: At our DMV hearing, there were three primary questions to be addressed:
- Was it lawful for the deputy to stop our client?
- Was it lawful for the deputy to arrest our client?
- Was our client’s blood/alcohol concentration a .08% or greater when he drove?
As is always the case in our hearings, the secret to success was a complete investigation, thorough preparation and professional execution.
We began our defense with a thorough interview of our client to learn everything about his driving history, medical history, criminal history and work history. Completely understanding your client and the facts in his case is a key element to any good defense. Very early in our case, we learned that it was highly unlikely that the deputy sheriff would appear at our hearing if subpoenaed.
Based on this, we issued subpoenas for the appearance of the arresting deputy, even though we knew he would not appear. We issued subpoenas for evidence, even for items that were not likely to exist (i.e. audio and video recordings). Then we prepared our client for examination and cross-examination.
Outcome: When we entered the hearing, we were 100% ready to do battle. Our client testified with great credibility and great confidence about the entire event. He rebutted many of the deputy’s allegations by flatly describing that they did not occur. We then presented evidence that we had attempted to subpoena the deputy but that he could not appear. When also presented evidence that we had subpoenaed audio and video evidence, but that the Sheriff’s Department said that no such evidence existed; therefore the DMV could not grant themselves a continuance to search for evidence we knew did not exist.
By having our client testify, we rebutted the allegations made by the deputy sheriff. Because the laws governing Procedural Due Process grant a driver the right to cross-examine and challenge witnesses against him, and because the deputy could not testify, the DMV had no remedy. Essentially, we shut down their case and denied them the ability to proceed.
The hearing officer closed the hearing with a promise to render a decision quickly. The very next day, we received the “Notice of Findings and Decision” in which the DMV hearing officer granted a Set Aside and returned our client to full driving privileges.
As a result of our effort, our client remains employed and is able to provide for his family. He has learned a valuable lesson and is committed to safe and sober driving.
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.