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DMV Victory at an APS Hearing in the San Jose 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 Santa Cruz County. The 48 year old client was stopped by a Santa Cruz Deputy Sheriff for driving at night with his high-beam headlights illuminated and because one tail light was out. During the initial contact, the Deputy claimed our client displayed the symptoms of alcohol intoxication and requested that the California Highway Patrol respond to investigate.

18 minutes later, a CHP Officer arrives at the scene and conducted a full DUI investigation. Our client admitted drinking but denied feeling any of the effects of the alcohol consumed. He performed a series of Field Sobriety Tests and then blew into a hand-held Preliminary Alcohol Screening (PAS) device. The PAS test resulted in readings of .084% and .080%.

Our client was arrested for suspicion of DUI and was transported to an area hospital where he blew into a Portable Evidential Breath Test (PEBT). The readings were .08% and .08%. Our client was then transported to the County Jail for booking and release.

The DMV’s Position: The California DMV’s position was crystal clear. Under California Administrative Law and the “Official Duty Presumption” in the Evidence Code, the DMV was permitted to presume that our client was guilty and then challenged us to rebut the case. We entered the hearing facing a DMV hearing officer who absolutely believed that our client was lawfully stopped, was lawfully arrested and that the blood/alcohol concentration was .08% or greater. The DMV’s position was that our client was guilty of DUI and should just accept a driver license suspension.

Our Defense: When client retained us, we immediately went to work scheduling his Administrative Per Se (APS) hearing and stopping the suspension of his driver license. This permitted the client to continue driving during the next 3.5 months as we prepared for and fought his case.

Early in our investigation, we concluded that the best avenue to victory was to disprove the accuracy of the blood/alcohol concentration. While we prepared attacks on the lawfulness of the stop and the lawfulness of the arrest, but our primary focus was to demonstrate that our client’s blood/alcohol concentration was below .08% at the time of driving. Known as a “rising alcohol” defense, this is one of the most time consuming and technically demanding defenses that can be offered at an APS Hearing. Remember, the DMV is empowered to blindly presume the accuracy of every element of their case and we had to make a plan to take that presumption apart one layer at a time.

Our defense began with a detailed interview of the client to examine moment of the day leading up to and through the arrest. Then, once we received the police reports, we made a plan for creating our rising alcohol defense. We issued subpoenas for additional items of evidence to include the “dash-cam” audio and video from the patrol vehicles involved. We issued subpoenas for written dispatch logs as well as the calibration, maintenance and performance logs of both breath devices used in the case. We also issued subpoenas for the live testimony of two CHP Officers and a Forensic Alcohol Expert. Each of these subpoenas and the evidence they revealed was instrumental in presenting our case.

After months of preparation, we presented our defense before the California Department of Motor Vehicles. The path to success included:

  • Objecting to each of the DMV’s exhibits with specific objections to certain items contained within those documents.
  • Presentation of the dispatch logs to clearly demonstrate the actual time elements involved between when the client was stopped and when the CHP investigation began.
  • Presentation of the calibration, maintenance and performance logs of the PAS device that demonstrated the device was working within acceptable ranges, but was actually reading “high.”
  • Direct examination of the CHP Officer responsible for accurately maintaining the PAS device. Known as a “PAS Coordinator” this officer is responsible for the continual maintenance and accuracy checks of the PAS device. This was important because we wanted the DMV hearing officer to presume that the PAS device was working correctly and that the maintenance logs proved it was reading a “little high.”
  • Presentation of the calibration, maintenance and performance logs of the PEBT device that demonstrated it was also working within acceptable ranges but, that it also was reading a little “high.”
  • Direct examination of the arresting CHP Officer. This was important to establish that he made a lawful arrest, that the client was cooperative and that he had answered all of the officer’s questions credibly during the arrest. It was also critical that the arresting officer establish that he had prepared and administered the PEBT test correctly.
  • Direct examination of a “Forensic Alcohol Expert.” After going on record and qualifying him as an expert, we used this person’s testimony to rebut the DMV’s case. This was the icing on the cake. Our expert provided comprehensive testimony that covered all elements of the presumption of accuracy, the margin of error in all breath analysis and the fact that the history of the both breath devices demonstrated that they were “over-estimating” alcohol levels.   Our expert offered the opinion that our evidence clearly proved that our client’s blood/alcohol concentration was well below .08% at the time of driving and that the DMV did not have a preponderance of evidence otherwise.
  • Finally, we offered our closing argument that brought clarity and “punch” to our entire case. Essentially, we argued that driving with one’s high-beam headlights on and driving with a broken tail light are not indicators of impairment. We argued that because our client had admitted drinking and responded to all of the officer’s questions that he should be deemed credible. We argued that during the entire time our client waited for the arrival of the CHP Officer, the blood/alcohol concentration was rising and that the similar readings on the PAS and the PEBT demonstrated that our client’s alcohol level had “plateaued” which could only mean that the level was lower at the time of driving. We also argued that because both breath devices were reading high and because there is a margin of error in all breath analysis, the presumption of accuracy was lost.
  • Finally, leaving no stone unturned, we argued against the new Supreme Court case of Coffey v. Shimoto that allows hearing officers to use a driving pattern and performance of Field Sobriety Tests to establish an excessive blood/alcohol concentration. Our client’s driving and the performance on FST did not prove an excessive blood/alcohol concentration.

The Outcome: All told, our defense took more than three months and required three appearances before the hearing.

At the conclusion of the APS Hearing, the hearing officer took the matter under submission. Four 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 safely driving and committed to remaining a sober driver.

Also, our client was able to use all of our accumulated evidence and testimony to negotiate a settlement in his criminal case.

Call CDA Today. Let us put you on the road to victory!

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 APS Hearing. Whether your case requires an attack on the probable cause for stop, or if it requires a detailed attack on the science of alcohol absorption, we are ready for the fight.

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