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How is a Forensic Alcohol Examination Report Used at an APS Hearing

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What is a Forensic Alcohol Examination Report?

Whenever a driver is arrested for DUI in the State of California and it is suspected that he or she was driving a motor vehicle with a blood/alcohol concentration that was at or above the legal limit, that person faces the very real possibility that their driver license will be suspended or revoked by the California Department of Motor Vehicles (DMV). Under California’s compulsory Administrative Per Se Law, the instant a law enforcement officer arrests a driver for DUI, the DMV must immediately suspend or revoke the accused person’s driver license.

To defend against the immediate suspension of one’s driver license, the accused driver must schedule, conduct and win an APS hearing.   If the driver neglects to schedule an APS hearing, or if they conduct a hearing and lose, their driver license WILL BE suspended for a minimum of 30 days or to a maximum of three years.

To justify the suspension of a person’s driver license, the DMV must establish three elements:

  • Did the person drive a motor vehicle and was he stopped, contacted, or detained?
  • Was the driver lawfully arrested?
  • Did the driver operate a motor vehicle with an alcohol level of .08% or greater (.01% if under the age of 21 or on DUI probation)?

In this chapter, we focus on Issue No. 3….. Did the Driver Operate a Motor Vehicle with a Blood/Alcohol Concentration at or above the Legal Limit?

At an APS Hearing, the DMV hearing officer will seek to establish Issue No. 3 by introducing the results of a chemical blood or breath test (in some rare instances, urinalysis may be introduced).

Whenever the hearing officer seeks to introduce the results of a chemical blood or chemical urine test into evidence, they will invariably introduce a Forensic Alcohol Examination Report (FAER). Frequently referred to as a “lab report” the FAER is an official document of the DMV that is prepared and signed by the Forensic Alcohol Analyst who tested the blood or urine sample. Classically, the FAER will include such information as the driver’s name and driver license number. It will identify the arresting officer and the law enforcement agency case number. It will also identify the date and time the blood or urine sample was collected as well as the date and time the Forensic Laboratory received and analyzed the sample. Finally, the FAER will include the determination of the blood/alcohol concentration.

How Does the DMV Use the Forensic Alcohol Examination Report?

Although the Forensic Alcohol Examination Report (FAER) is considered an “Official Record of the Department,” it still must face scrutiny before it can be introduced as evidence at an APS hearing.   When an APS hearing begins, the DMV hearing officer will introduce a number of exhibits for consideration and will announce that he or she intends to move them into evidence.

Because the FAER is the primary means by which the hearing officer establishes that a driver violated the Vehicle Code, it is a critical exhibit and the hearing officer will do everything in their power to move it into evidence.

The DMV Defense Experts at California Drivers Advocates (CDA) have been fighting at APS hearings for years. We know precisely how to evaluate and attack the admissibility of any exhibit offered by the DMV; especially the FAER.

If the hearing officer is successful in moving the FAER into evidence, then the “three-hour presumption” kicks in. Essentially the law is written to suggest that any blood or urine sample is presumed accurate as long as it is taken following a lawful arrest and as long as the sample was collected within three hours of the termination of driving. So, if a driver is involved in a traffic collision and is transported to a hospital before the police arrive at the scene. And if that driver lay on a gurney in the hospital for 2 hours and 55 minutes before a blood sample is drawn, the results of that blood sample will be presumed to accurately reflect what the driver’s blood alcohol concentration was at the time of driving. Fortunately, this is a “rebuttable” presumption which means your DMV Defense Expert can fight to attack the presumption and to demonstrate that the blood alcohol concentration is not trustworthy or reliable.

Can a Forensic Alcohol Examination Report be Attacked?

Without question the answer is a resounding YES!   Remember, the Forensic Alcohol Examination Report (FAER) is only as good as the information put into it. It is only as reliable as the person who prepares the report. Human beings are fallible. They make mistakes. Things get missed or times and dates get confused.

Even though the DMV will presume the accuracy and trustworthiness of the FAER, it is still subject to scrutiny and attack by your DMV Defense Expert. For an FAER to overcome a hearsay objection, it must:

  • Be accurate and complete
  • Be trustworthy
  • Be prepared “at or near the time of the event”
  • Be approved and signed by Forensic Alcohol Supervisor
  • Be properly certified and delivered from the lab to the DMV.

 There are literally dozens of issues that can cause the FAER to not be admissible. Try as they might to bring everything into evidence, a DMV hearing officer can be defeated if your DMV Defense Expert is highly experienced and motivated.

 Beyond the content of the FAER itself, your DMV Defense Expert also has the opportunity to attack the collection, preservation and processing of the blood or urine sample. How the sample is collected, packaged, stored, handled and tested can all cause huge issues in attacking the trustworthiness of the sample.

What Happens if a Forensic Alcohol Examination Report is Rejected as Evidence?

When this happens, it truly is a cause for celebration. To sustain the suspension of a driver’s privilege, the DMV must possess direct evidence of an excessive blood/alcohol concentration. If the driver’s DMV Defense Expert is successful in omitting the FAER from evidence, it is likely the hearing will be won.

In those instances where the DMV hearing officer must rule to not allow the FAER into evidence, the DMV will not give up until they have explored the possibility of introducing other evidence to establish the blood/alcohol concentration. One familiar tactic used by DMV hearings officers is to attempt to bring in the results of a Preliminary Alcohol Screening (PAS) test as the primary evidence of the blood/alcohol concentration. The PAS test is the small “hand-held” breath device used at the scene of the arrest as just “another field sobriety test.”

If the hearing officer loses the opportunity to use the FAER as their primary piece of BAC evidence, your DMV Defense Expert should that the hearing officer will fall-back on the PAS test to establish their case. Because of this, your DMV Defense Expert must be prepared to switch gears in an instant from attacking a blood test to preventing the introduction of a breath test. Flexibility and pre-planning are key elements to winning and APS hearing.

 We’re Ready to Attack the Forensic Alcohol Examination Report in Your Case.

The DMV Defense Experts from California Drivers Advocates have been fighting for many years to prevent the DMV from introducing Forensic Alcohol Examination Reports as evidence. Something as simple as a clerical error can make a huge difference in an APS hearing.

Good DMV Defense comes down to experience, training and cunning. Most of this can’t be learned in a classroom. In fact, CDA employs the services of former police officers, former DMV hearing officers, investigators and scientists to get the job done. Our experience and training comes from the trenches. Years of making DUI arrests as law enforcement officers and many years going toe to toe with the DMV. You can’t learn that in a classroom.Call CDA today. Let us put our experience to work 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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