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DMV Victory – “Rising Alcohol Case” – San Bernardino Driver Safety Office

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Case History: California Drivers Advocates was engaged to defend a young man whose driver license was in jeopardy of being suspended following a DUI arrest in Riverside County.  The 27 year old client was driving on the 60 freeway near Glen Avon when he missed his exit.  Unfamiliar with the area, he was following the directions provided by GPS and so when he took the next off-ramp, he inadvertently drove into a restricted construction zone.  CHP officers who were stationed at the construction site for security, immediately stopped our client and called for a back-up officer to conduct a DUI investigation.

 The initial officers noted the “Objective Symptoms” of intoxication but did not conduct any investigation until the back-up officer arrived.  The back-up officer arrived, and conducted an investigation for DUI.  During the investigation, our client blew into a Preliminary Alcohol Screening (PAS) device which registered .08%.  He was immediately arrested and transported to jail.

Because our client’s employment was directly tied to his privilege to drive, his employment future was on the line.  In fact, the loss of his driver license would mean the loss of his job….. Period!

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 blindly presumed the accuracy of the police reports and the accuracy of the breath devices.   The DMV’s position was that our client was guilty of DUI and should just accept a driver license suspension.

Our Defense: When the client retained us, we immediately went to work to schedule his Administrative Per Se hearing and stopped the immediate suspension of his driver license.  This permitted the client to continue driving during the next 8 months as we prepared for and fought his case.  His employer honored his temporary driving privilege so he could remain employed.

Early in our investigation, we concluded that the best avenue to victory was to attack the presumption that our client had been driving with an alcohol concentration above the legal limit.

Our defense began with a detailed interview of the client to examine every moment of the day leading up to the arrest and chemical breath testing.  Once we received the police reports, we  issued subpoenas for additional items of evidence to include the “dash-cam” audio and video, dispatch logs and the calibration/maintenance logs on both breath devices used in our client’s arrest.    Contrary to popular belief, we wanted to prove that the breath devices were working perfectly and were measuring alcohol levels accurately.  This was essential in our argument that our client’s blood/alcohol concentration was below .08 at the time of driving and had risen to the .08 level by the time the arresting officer arrived.

The Outcome: 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.
  • Direct examination of the arresting officer.
  • Direct examination of the officer responsible for calibrating the breath device.
  • Direct examination of a forensic alcohol expert.
  • Cross-examination of the DMV’s forensic alcohol expert.
  • Introduction of calibration, maintenance and performance records on both breath devices.
  • Finally, we offered our closing argument that brought clarity and “punch” to our entire case. Our argument was that because our client’s blood alcohol level was .08 at the time of PAS testing and was also .08, 34 minutes later in the station, that his blood/alcohol concentration had plateaued.  This would mean his alcohol level was below .08 at the time of driving.

Our defense took more than eight months and required four appearances before the hearing officer.

At the conclusion of the APS Hearing, the hearing officer took the matter under submission.  Five weeks later, we received official notice that the hearing officer had “Set Aside” the suspension and our client’s driving privilege was fully reinstated.   The hearing officer ruled that our case had successfully rebutted the DMV’s presumption and it could not be proven that our client’s blood/alcohol concentration was .08% or greater at the time of driving.


 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, especially commercial drivers, the best opportunity to win their Administrative Hearing.  Whatever legal or scientific defense your case requires, CDA is ready to fight for you.

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COVID-19 Update: The California DMV is OPEN!!!The California Department of Motor Vehicles - Driver Safety Office is Open & SUSPENDING Licenses

If you received a notice from the California Department of Motor Vehicles, Driver Safety Office you must act now.

The Driver Safety Offices are still doing business as usual, which means suspending your license. 

Hearings are still being processed and you can still defend yourself. 

California Drivers Advocates is a team of expert DMV Defense advocates. We represent drivers throughout California when their driver license comes into question with the California Department of Motor Vehicles.

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