California DMV must take NO LICENSE SUSPENSION ACTION against a driver under certain circumstances after a DUI.
As stated in its own Manual, San Diego defense attorneys point out, specific examples are stated by DMV, including:
1. When the Forensic Alcohol Analysis Report cannot be relied on. That is when those DUI chemical test results were NOT recorded until days after the date of the analysis which fails to meet the hearsay exception to the requirement “at or near the time of the event” per California Evidence Code Section 1280(b). (Glatman v. Valverde, 2006 146 Cal.App. 4th 700 supports this, as DMV points out.)
2. When the DUI chemical test was NOT administered within 3 hours of driving or when the presumption under § 23152(b) VC is rebutted. This includes when the chemical test result does not reflect respondent’s blood alcohol level at the time of driving, lawyers note. (DMV refers the hearing officers to see McKinney v. DMV, 1992 5 Cal.App. 4th 519.)
Here’s the Manual:
The findings reveal how you decided each issue. They restate each issue in a positive or negative way. When additional issues or sub-issues develop during the hearing, make findings on them as well. Findings should flow from the facts and lead directly to the decision. You should avoid merely stating the conclusions without citing the facts.
State your findings on each basic issue in the section for Determination of Issues.
Cause (does) (does not) exist to suspend/revoke respondent’s driving privilege pursuant to §13353.2, and §13558 of the Vehicle Code as set forth in the finding of fact, in that:
1. The officer (did) (did not) have reasonable cause to believe that respondent (name) had been driving a motor vehicle in violation of §23152, §23153, or §23154 VC, or §191 5 PC.
2. Respondent (respondent’s name) (was) (was not) lawfully detained and/or arrested.
3. Respondent (respondent’s name) (was) (was not) driving a motor vehicle when they had 0.08% or more, by weight, of alcohol in their blood. OR
4. Respondent (respondent’s name) (was) (was not) driving a motor vehicle when they had 0.04% or more, by weight, of alcohol in their blood while operating a commercial
motor vehicle. OR
5. Was (respondent’s name) driving a motor vehicle while on DUI probation when he or she had 0.0 1% or more, as measured by a preliminary alcohol screening device or other chemical test?
Listed below are the basic findings in a refusal case:
Cause (does)/(does not) exist to suspend/revoke respondent’s driving privilege pursuant to §13353, §13353.1, and §13558 0f the Vehicle Code as set forth in the finding of fact, in
• The officer (did) (did not) have reasonable cause to believe that (name) had been driving a motor vehicle in violation of §23152, §23153, or §23154 VC.
• Respondent (name) (was) (was not) lawfully arrested.
• Respondent (name) (was) (was not) told that their driving privilege would be suspended or revoked if they refused or failed to complete the required testing.
• Respondent (name) (did) (did not) refuse or fail to complete the chemical test or tests after being requested by the peace officer.
Review Section 12.048, Drug Issues. When the officer reports the driver refused or failed to complete a blood or urine test for drugs, after taking a breath test, you will need to make three additional findings:
1. The officer (did) (did not) have reasonable cause to believe (name) was driving under the influence of drugs.
2. Respondent (name) (was) (was not) told their privilege to operate a motor vehicle would be suspended or revoked if they refused to submit to and complete a blood or urine test.
3. Respondent (name) (did) (did not) refuse to or fail to complete a chemical test of their blood or urine after being requested to do so by the officer.
12.176 Additional Findings
Examples of non-statutory sub-issues and separate findings for the report:
The driver asserts the Forensic Alcohol Analysis Report cannot be relied upon given the recordation of the blood tests results was more than 3 days from the date of the analysis. The driver submitted case law Glatman v. Valverde, 2006 146 Cal.App.4th 700 to support the contention.
Evidence presented by the respondent revealed the Forensic Alcohol Analysis Report cannot be relied on. Concisely, the chemical test results were not recorded until more than 3 days from the date of the analysis; thus, failing to meet the hearsay exception to the requirement ‘at or near the time of the event’ per Section EC 1280. In the absence of evidence establishing the respondent was operating a motor vehicle with a BAC of .08% or more, the action must be set aside.
The driver claims there was an unreasonable time lapse between the arrest and blood test.
Respondent’s evidence does/does not support the chemical test was administered within three hours of driving because (state reason). Therefore, the presumption under .§.23152(b) VC is/is not rebutted. The chemical test result does/does not reflect respondent’s blood alcohol level at the time of driving. (See McKinney v. DMV, 1992 5 Cal.A .4th 519
The decision can only be based upon testimony, documents, etc., which have been admitted into evidence. The decision is a logical extension of the findings of facts located at the conclusion of the Determination of Issues.
12.179 Notice of Findings & Decision
An APS suspension or revocation is a mandatory action. The Notice of Findings and Decision must show all your findings. When making additional findings, indicate on the notice whether additional findings are attached, or available upon request.”
[DMV Manual, Chapter 12, APS Hearings, pages 12-77 through 12-80]