DMV APS Hearing -San Bernardino 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 the City of Colton. Our 24 year old client had no prior criminal history and a clean driving record. He was employed as a cable installer so the loss of his driver license would mean the loss of his job.
After a full day at work, our client had stopped to visit with some friends at an automobile specialty shop in the City of Colton. During hours of socializing, our client drank several cans of beer. At the end of the evening, all of the friends went their separate ways. After a full day at work and after consuming alcohol, our client was self-aware that he was both fatigued and impaired. He recognized that he was in no condition to drive.
Our client walked to his vehicle that was lawfully parked in an industrial area. He got inside and turned on the engine to run the air conditioner. At that point, he put his head back and fell asleep. This is an important point. Our client made the conscious choice to protect himself and the public by not driving.
A few hours later, a security guard was making his rounds when he discovered our client sleeping in his vehicle. The security guard made a call to 911 and officers from Colton PD responded. When the responding officers arrived, they found our client’s vehicle legally parked with the engine running and our client in a deep sleep.
When the officers attempted to wake our client, he was slow to respond. In fact, he was so groggy that when the officers attempted to get him out of the vehicle, a scuffle ensued and our client was immediately taken to the ground and was handcuffed. Because of the physical nature of the initial contact, the officers made the decision to not administer Field Sobriety Tests or to administer a Preliminary Alcohol Screening Test. Our client was simply taken out of his vehicle, thrown to the ground and was immediately arrested for DUI.
By the time our client arrived at Colton Police Department, he was fully awake and was cooperative. When advised of his requirement to submit to a chemical test of his blood or breath, he selected a breath test. Our client blew into a breath device which revealed his blood/alcohol concentration to be 0.10%; above the legal limit.
DMV’s Position: The California DMV’s position was crystal clear. Under the “Official Duty Presumption,” the DMV Hearing Officer presumed the arresting Colton PD officer had a lawful reason to contact our client. The hearing officer also presumed that the officer had a lawful reason to arrest our client for DUI and that the chemical breath test revealed that our client had driven a motor vehicle with a blood/alcohol concentration of 0.08% or greater.
As the hearing began, the Hearing Officer presumed our client’s guilt and challenged us to prove them wrong. Essentially our client was presumed “guilty” before one word was spoken.
Our Defense: Good DMV defense will often come down to nuances in the law that can have a dramatic impact on the case. In preparation for our hearing, we had conducted a full investigation. We had issued subpoenas for all audio and video evidence, 911 dispatch recordings, dispatch logs and the calibration and maintenance logs on the breath device.
We had interviewed a witness who saw our client when he originally parked his vehicle before drinking and saw him walk to his vehicle at the end of the evening.
The DMV had issued a subpoena for the live testimony of the arresting officer so we prepared extensively to cross-examine him. Because we planned for our client to testify, we prepared him for both direct examination and cross-examination.
Our defense essentially came down to one thing. The California Vehicle Code makes it unlawful for any adult with a blood/alcohol concentration of 0.08% or greater to “DRIVE” a motor vehicle. Our defense was that our client had not driven within the meaning of the Vehicle Code.
So extensive was our cross-examination of the arresting officer that we did not have to introduce the testimony of our client. We were able to clearly demonstrate that our client had arrived at the location and consumed alcohol after driving. We were able to demonstrate that after drinking he did not drive. Most importantly, we were able to demonstrate that neither the reporting security guard, or the arresting officer witnessed any movement of the vehicle and that there was no inference of driving whatsoever. A full understanding of the case law and a comprehensive cross-examination of the arresting officer is what won the day.
Outcome: At the conclusion of the APS Hearing, the hearing officer took the matter under submission. Five days later, we received official notice that the she 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 safely driving and committed to remaining a sober driver.
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