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Scientific Evidence at a DMV Administrative Per Se/DUI Hearing

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What is Scientific Evidence at a DMV Administrative Per Se/DUI Hearing?

A driver who is arrested for DUI in the State of California faces criminal prosecution at the local Superior Court. That same driver, however, must fight with the California Department of Motor Vehicles (DMV) at what is known as an Administrative Per Se (APS) hearing to prevent the suspension/revocation of his or her driver license. To suspend a person’s driver license, the DMV must prove three issues:

Was the driver lawfully stopped or contacted

Was the driver lawfully arrested?

Was the driver operating a motor vehicle with a blood/alcohol concentration which exceeded the legal limit?

If the DMV fails to prove any of these issues, the suspension action must be terminated and the driving privilege must be reinstated.

Here we focus on Issue No.3……Was the driver operating a motor vehicle with a blood/alcohol concentration above the legal limit? In California, the legal limit for blood/alcohol while driving is:

  • .08% or greater if over the age of 21.
  • .04% or greater if operating a commercial vehicle at the time of driving.
  • .01% or greater if under the age of 21.
  • .01% of greater if driving while on DUI probation.

One of the most crucial issues at an APS hearing is whether or not the DMV can establish that a driver’s blood/alcohol concentration was at or above the legal limit permitted for that individual.  For the most part, the DMV will rely upon the scientific analysis of a blood or breath test.  In some rare instances, a urine test may be the basis for a license suspension.

Additional items of scientific evidence may be medical or physical conditions that may affect the way a person’s body processes alcohol.  There may be scientific issues focusing specifically on how the blood/alcohol concentration in a person’s body changes over time.  There may also be issues regarding the accuracy of the device used in the testing of one’s blood/alcohol concentration.  Basically, any evidence that establishes or disproves the alleged alcohol level is scientific evidence and is relevant at a DMV Hearing.

What is the Importance of Scientific Evidence at a DMV Hearing?

As stated above, the accuracy of one’s blood/alcohol concentration is a critical element of a DMV Administrative Per Se (APS) hearing.  Under the provisions of California Administrative Law, any scientific evidence presented by the DMV is automatically “presumed” accurate.  That’s right.  If the DMV presents the results of a blood, breath or urine test, it is automatically presumed that the evidence was collected, analyzed and evaluated properly.  That is the nightmare of a DMV Hearing.  You are presumed guilty until you prove yourself innocent.  Fortunately, the “presumption” of accuracy is a rebuttable presumption; which means, your representative is given an opportunity to demonstrate why the DMV’s evidence is not accurate or trustworthy.  The way scientific evidence is collected.  The way it is handled and stored; and the way it is tested and evaluated are all issues to be scrutinized.  Just because a blood test is “presumed” accurate doesn’t mean that it is.  Because scientific evidence is such a critical aspect of a DMV Hearing, successfully attacking that evidence can mean the difference between winning or losing your APS hearing.

How We Use Scientific Evidence to Fight the DMV?

Our experienced and knowledgeable team clearly understands the importance of scientific evidence.  It is not enough to know how and where to find scientific evidence. Once scientific evidence is discovered, one must know how to develop it, and most importantly, must know how to present the evidence in a format acceptable at an APS hearing. Just because you possess evidence that either establishes or disproves a blood/alcohol concentration does not mean you can introduce it at an APS hearing.

During the investigative and preparatory stage of your case, we inspect every step of how your case developed and how scientific evidence may help us win your case.  In some instances, we are attacking the accuracy of the DMV’s scientific evidence; but in some instances, we may introduce our own scientific evidence.  Because we understand the DMV process better than most, we know how to introduce scientific evidence in a format that will best establish the truth.

It is critical that you be represented by a DMV Defense Expert to insure that the DMV Hearing Officer correctly reviews and considers all of the evidence.

What are the Types of Scientific Evidence Used at an APS Hearing?

When a driver is arrested for DUI in the State of California, the “Implied Consent Law” mandates that he or she submit to a chemical test of their blood or breath to establish the alcohol concentration in their blood. With few exceptions, a driver in California is presumed “impaired” if they drive with an alcohol level of .08% or greater.

Today, there are three primary scientific means by which the DMV can establish the blood/alcohol concentration of the accused driver:

*Blood Test: Following a lawful arrest for DUI, a driver may select to have a sample of blood draw. Most often, the blood sample is drawn by a phlebotomist or nurse at a hospital or local jail facility.   It is becoming increasingly more common for a “blood tech” to actually drive to the scene of the stop where the blood sample is then drawn.

*Breath test: Following a lawful arrest for DUI, a driver may select to provide an air sample by way of their exhaled breath into a breathalyzer. Considered less invasive than a blood test, the breath samples may be collected virtually anywhere that an officer has access to an evidentiary breath device.

*Urine test: In years past, the urine test was one of the primary tests to be offered by an arresting officer at the time of arrest. In 1999, the California Vehicle Code (CVC) was amended to limit the instances in which a driver must be given the urine test as an option.

Remember, when the DMV introduces the blood/alcohol concentration as measured by a blood, breath or urine test, it is first “presumed” that the estimated blood/alcohol concentration is correct. This is a “rebuttable” presumption, however, that provides your DMV Defense Expert an opportunity to attack that presumption. Just because the DMV will hide behind science and administrative law does not make it right. A driver should never agree to the presumption of accuracy in these tests and should work to attack that presumption.[/fusion_tab][/fusion_tabs]

How Was the Legal Limit for Alcohol Established in California?

In the earliest days of DUI investigations, police and prosecutors would arrest and prosecute drivers based largely on the observations and opinions of police officers. In the 1980’s several government studies began to correlate the direct effect of impaired drivers with the high numbers of highway deaths in the United States.

In 1938, a joint commission of the American Medical Association and National Safety Council established a .15% blood alcohol concentration as the level where the “average” person would presumably be impaired. In 1960, that very same commission published a new opinion in which the presumed level of impairment dropped to .10%. For decades, prosecutors not only had to prove that a driver had alcohol in their blood stream but that they were, in fact, impaired by that alcohol, as there was no national standard which presumed impairment. Today, this standard of proof has been significantly eroded.

After several very public attacks on State Legislatures by prosecutors and Mother’s Against Drunk Driving; the Federal Government adopted the policy that any adult with a blood/alcohol concentration of .10% or greater was automatically “presumed” impaired, regardless of the actual effects of alcohol on that individual. This “Per Se” section of the law allowed prosecutors, and the DMV, to entirely ignore the actual effects of alcohol on an individual so long as their blood alcohol concentration was above .10%. Eventually, continued pressure by prosecutors and politically action groups caused the Federal Government to drop the legal level for a blood/alcohol concentration to the now current, .08%. This “Per Se” section of the law permits prosecutors and DMV Hearing Officers to automatically presume the impairment of a driver irrespective of their body weight, muscle mass, physical conditioning or tolerance. Simply put, everyone is drunk at .08%

Initially, several individual States resisted the reduction to such a low level, however, when the Federal Government threatened to cut-off Federal Highway Funds to those States who did not adopt the lower concentration level, all of the States in the country fell into line and today, we have the national standard of .08%.

In California, a citizen can be prosecuted for DUI, if they are impaired by any intoxicating substance, (VC Section 23152(a)), or; if their alcohol level is .08% or greater, (VC Section 23152(b)).

At a DMV Administrative Per Se (APS) hearing, VC Section 23152(a), does not apply. While impairment issues such as driving pattern and performance of FST is entered as evidence of a lawful arrest, it is VC Section 23152(b), which enables the Department of Motor Vehicles (DMV) to seize a person’s driving privilege; again presuming that “everyone is drunk at .08%.” There is actually no accurate science that supports this conclusion, but it is current law.

Call Us Today. We Can Attack the Presumption of Accuracy in the DMV’s Scientific Evidence.

As stated earlier in this chapter, it is not enough to know that the DMV’s evidence is wrong. It is not enough to know that the scientific evidence is flawed. Knowledge is one thing………presenting it as evidence is something entirely different. To accurately attack the DMV’s presumption of accuracy in their chemical tests requires the presentation of documentary evidence and the testimony of expert witnesses. The California Government Code and the California Evidence Code have very specific requirements that must be met before any evidence may be permitted at an Administrative Per Se hearing.

The DMV Defense Experts at California Drivers Advocates utilize a team of former police officers, DMV Hearing Officers, Investigators and Scientists to examine and attack the DMV’s presumption of accuracy in its scientific evidence. We have a strong history of training and experience that ensures we know how to collect evidence and how to present it properly at an APS hearing.Don’t attempt this on your own. Call CDA today and let our team of experts go to work for you.

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