DMV’s Driver Safety Manual discusses the issues California DMV must decide in various DUI-related situations. San Diego DUI Attorneys have no limit in the number of sub-issues. Even DMV recognizes this in the sub issue section of DMV’s own Manual (below).
Consequently, critical contentions must be strategically utilized by one’s San Diego California DUI / DMV Lawyer at the administrative hearing.
DMV must make affirmative findings on ALL the issues in order to suspend one’s driving privileges in California.
“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?
12.049 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.”