DMV Hearing Issues after DUI

Think you’re ready to “represent yourself” at a DMV hearing? Think you do not need a San Diego California DUI / DMV Defense Attorney to use his or her experience to try to avoid a suspension of your license? Take a look at these DMV / DUI issues. Lawyers understand the real issues are in the sub-issues…not just the ones listed at the bottom but more importantly, the ones your San Diego DUI Attorney raises!

12.040 APS ISSUES

The hearing officer will need to ensure the issues for the type of APS case can be established. Explore the issues to guarantee the issues are supported and determine whether an action can be upheld based upon the evidence or if the action must be set aside for lack of evidence. (also refer to Section 12.049, Sub Issues that Require Consideration)

12.041 Age 21 or Older 0.08% or More BAC ISSUES

1. Did the peace officer have reasonable cause to believe the driver was driving a motor vehicle in violation of §23152 or §23153 VC?
2. Was the driver lawfully arrested?
3. Was the driver driving a motor vehicle with 0.08% BAC or more by weight of alcohol?

12.042 Age 21 or Older Operating a Commercial Motor Vehicle 0.04% or More BAC ISSUES

1. Did the peace officer have reasonable cause to believe the driver was driving a motor vehicle in violation of §23152 or §23153 VC?
2. Was the driver lawfully arrested?
3. Was the driver driving a motor vehicle with 0.04% BAC or more, by weight, of alcohol while driving a commercial vehicle?

12.043 0.01 % or More BAC While on DUI Probation ISSUES:

I. Did the peace officer have reasonable cause to believe the driver was driving a motor vehicle in violation of §23154 VC?
2. Was driver lawfully detained and/or lawfully arrested?
3. Was driver driving a motor vehicle with 0.01 % BAC by weight of alcohol while on DUI probation?

Note: If the BAC while on DUI Probation is in combination with another APS action, state both sets of issues.

12.044 Under Age 21 PAS Hearing Issues ISSUES

1. Did the peace officer have reasonable cause to believe the driver was driving a motor vehicle in violation of §23136 VC?
2. Was the driver lawfully detained and/or lawfully arrested?
3. Was the driver driving a motor vehicle while under 21 years of age with a blood alcohol concentration of 0.0 1% or more, as measured by a preliminary alcohol screening device or other chemical test?

12.045 Refusal Issues Age 21 or Older ISSUES

1. Did the peace officer have reasonable cause to believe the driver was driving a motor vehicle in violation of §23l52 or §23153 VC?
2. Was the driver lawfully arrested?
3. Was the driver told his or her driving privilege would be suspended or revoked for one, two or three years if he or she refused to submit to, or failed to complete a chemical test?
4. Did the driver refuse to submit to or fail to complete a chemical test after being requested to do so by a peace officer?

12.046 Refusal Issues Violation of Probation ISSUES

1. Did the peace officer have reasonable cause to believe the driver was driving a motor vehicle in violation of §23154 vc.
2. Was the driver lawfully detained?
3. Was the driver told his or her driving privilege would be suspended or revoked for one, two or three years if he or she refused to submit to, or failed to complete a chemical test?
4. Did the driver refuse to submit to or fail to complete a chemical test after being requested to do so by a peace officer?

Note: If the Violation of DUI Probation Refusal is in combination with another APS action, state both sets of issues.

12.047 Refusal Issues Under Age 21 ISSUES

1. Did the officer have reasonable cause to believe driver was driving a motor vehicle in violation of §23136 VC?
2. Was the driver lawfully detained and/or arrested?
3. Was the driver told his or her driving privilege would be suspended or revoked for one to three years?
4. Did the driver refuse to submit to or fail to complete a PAS test or other chemical test after being requested to do so by a peace officer?

12.048 Drug Test Refusal Issues

Under §23612(a)(I)(B) VC, a person who drives a motor vehicle is deemed to have given his or her consent to a chemical testing of his or her blood or urine for the purpose of determining the drug content of his or her blood, if lawfully arrested for an offense allegedly committed In violation of §23140, §23152, or §23153 Vc. The officer must have reasonable cause to believe the person was driving a motor vehicle in violation of §23140VC (Drivers under age 21 with a 0.05% or more BAC), §23152 or §23153 vc.

If the officer believes the person is under the influence of a drug, the officer must first administer a breath test to rule out the presence of alcohol. Once alcohol is ruled out, the driver must submit to and complete a blood or urine test. The officer will state the drug admonition statement and complete the Drug Admonition Supplement on the back of the Officer’s Statement.

Review the drug section on the back of the DS 367 form before starting the hearing. If the officer indicates the driver refused to take the blood or urine test, there are three more issues to cover during the hearing.

The following additional drug test refusal issues apply:

• Did the officer have reasonable cause to believe (respondent) was driving under the influence of a drug, or a drug and alcohol?
• Did the officer administer a breath test to (respondent) to determine the blood alcohol content?
• Did the officer tell (respondent) a blood or urine test was required and explain the consequences of a refusal?
• Did (respondent) refuse to take or fail to complete a blood when asked to do so by an officer?

12.049 Sub Issues that Require Consideration

You must decide other issues before you can decide a main issue. You need not formally state these other issues during the hearing. The attorney or driver may bring them out informally.

If you detect other issues, resolve them during the hearing and state it in the hearing report. An example is the reasonable cause issue. It is divided into parts or sub-issues such as whether the officer had reasonable cause to believe:

• the person was driving,
• the person was under the influence of alcohol or drugs, and
• the person was driving and under the influence at the same time.

Other issues may be important enough to require separate findings. Usually, this is when the driver’s defense relies on the sub-issue. As an example, consider the driver’s statement that more than three hours passed from the time of arrest until a test was taken. Even though the BAC results were far in excess of 0.08%, the test is to be provided in a timely manner. When the driver states the time was not reasonable, decide whether it was and state it as a separate finding. The following is a suggested finding:

• It is (is not) reasonable to presume that (name of respondent) completed
• the chemical test within three hours because (state the facts why it is or is
• not reasonable to presume).

There is no limit to the number of other issues that may develop during the hearing. However, usually only a few develop. Below are some examples of the type of common issues that require separate findings.

The respondent states:

– his/her blood alcohol concentration was rising at the time of the stop and had not yet reached .08%.

– the lab that analyzed the blood sample was not licensed.

– the officer had not been trained to operate the intoxilyzer machine.

– there was no stated requirement to choose or to take a test before consulting and attorney.

– all three tests were not available.

– there was no advice that a refusal of the test could cause the filing of criminal charges against him/her in a court of law.

– there was no observation of driving.

Issues effective January I, 1999:

• Officer offered the urine test in error and the driver takes and completes the urine test? Counsel objects to the admissibility of the urine test result because the officer violated statue by offering the urine test.

Urine test result is admissible because it is still the type of evidence a reasonable and prudent person would rely upon in serious matters.

Hearing officer can overrule the objection and indicate the urine test result is not invalid, provided there is no evidence of non-compliance with Title 17 requirements.

• What if the officer submits a DS 367 with a revision date prior to the January I, 1999 revision?

The administrative per se suspension/revocation action is still valid. The officer offered driver more than he was entitled to by statute. There is no effect on completion of the chemical test or refusal. Officer may be needed to clarify any issues/sub-issues.

• Officer offered the urine test in error and respondent selected the urine test. The officer realizes his error and tells the driver that he/she must submit to a breath or blood test, not the urine test. The driver insists on the urine test and refuses to take a breath or blood test. Counsel may argue that this was not a refusal because his client was offered the urine test and then denied the opportunity to take that test.

Is this a refusal?

Yes. §23157 VC was amended to delete the offering of the urine test except for specified circumstances. Officer may be needed to clarify any issues/sub-issues.

• Must the officer offer an explanation as to why the urine test is being offered when the blood and breath tests are unavailable? (In cases where the officer has prior knowledge that both the breath and blood tests are unavailable)

Yes. The chemical test admonition has been revised to reflect the changes as a result of the amendment of §23157. Officer may be needed to clarify any issues/sub-issue

• Must the form indicate that the blood and breath tests were unavailable if the urine test was completed?

Yes. Officer is needed if not clearly indicated on the DS 367.

Will the amendment to §23157 affect non-consensual forced blood tests?

No. A person lawfully arrested for driving under the influence may still have blood forcibly removed without his/her consent, provided it is done in a reasonable, medically approved manner. The driver is still considered to be a refusal.

The foregoing excerpts are from the updated DMV Administrative Per Se Hearings Manual [Chapter 12] for California DMV Hearing Officers.