Case Study: DMV Win DUI With Accident .21% bac

Case Study: DMV Win DUI With Accident .21% BAC

This is another case study, along with our case results from DUI cases we have handled.  A case study is a deep dive into the facts and documents, and defenses that apply to real world cases, showing with documents from actual cases how we win DUI cases for our clients.

Our client came to our DUI defense firm after having been in an accident, tested via breath machine at a 0.21% blood alcohol level (close to three times the legal limit), and having been arrested for DUI.  She was very concerned about the potential loss of her driving privileges at the DMV.  Her main goal was to keep driving continuously with no loss of her license. As this Case Study DMV Win DUI With Accident High BAC shows, we were successful in fighting the DMV and beating them at a hearing.

Our strategy to help our DUI client

As we have written about before, the strategies to successfully win a DMV hearing are unique to the facts of each case.  We went to work, and requested this client’s DMV hearing in the DUI case right away, to make sure that the ten day deadline that the DMV has was complied with.  We fax a request, to prove the date and time of the request, and then follow up with a phone call to schedule the hearing.

The hearing was set, and the police had forwarded a copy of all reports in the case to the DMV for the hearing.  The DMV then, in turn, copied and forwarded the police reports, alcohol testing results, and a copy of our client’s driving record to us, to prepare for the DMV hearing in the case.

The DMV Discovery – What We Look For

The DMV admin per se hearing laws allow for the entire hearing to take place without live testimony. That is the opposite of what happens in a court motion proceeding, or in a trial, where the written reports are not allowed to be used when there is live testimony available.

The DMV has their own form, which can be used by the police officer to provide the basic facts to support a driver’s license suspension after a DUI.  It asks the officer to provide notice of what type of suspension is being sought by the DMV, what the probable cause was for the DUI stop, what symptoms were observed before the arrest, when the time of driving, and the time of the arrest was, the date, city, and certification of the blood testing or the breath testing.

Here is a portion of the DMV form, the DS-367 Officer’s Statement, in this case.  As you can see, on February 20, 2016, at 1:40 a.m., the client tested at a .211% blood alcohol level, a very high blood alcohol level indeed.  The officer here noted his training with the Preliminary Alcohol Screening (PAS) testing breath machine.

The officer signed the fully completed DMV Officer’s Statement under penalty of perjury, completing the requirement that the officer testify in a sworn statement under oath that all the items testified to under penalty of perjury are true and correct.

Here you see the Cal State University Fullerton police officer swore under penalty of perjury, and served a copy of the Order of Suspension on the driver, our client, the same day as the testing and arrest for DUI. That sworn statement sets forth everything the DMV needs to make their case towards suspending our client’s license.

Isn’t the DMV statement hearsay?

Is using the document hearsay in a DMV hearing?  Yes, technically.  The arresting officer’s hearsay reports from a DUI arrest are admissible in DMV license suspension hearings under existing legal exceptions to the hearsay rule.

As long as the arrest reports, or collision reports, or the DMV’s own form, are “inherently reliable”, made as part of the officer’s duties, and are made at or near the time of the event, the reports are public employee records and any driver’s admission (to drinking alcohol, or to driving), tend to show that the officer had reasonable cause to arrest motorist for  (DUI). (Sources: Cal. Vehicle Code §14104.7, 23152(a); Cal.Gov. Code §11513(d); Cal.Evid. Code §1200, 1280).

The bottom line is, that, as long as the documents prepared from an Orange County DUI arrest meet certain requirements, they are allowed to use them in DMV hearings.

The multiple hearsay problem – referring to other unsworn reports

The DMV requires that the police documents that are prepared be “inherently reliable”.  When police use statements that are not made under oath, that use other statements not made under oath, the problems are compounded.

While an officer can refer to another officer’s statements, each officer’s statements have to be separately reliable.

The winning issue: “See Attached Reports”.

The arresting officer here is responsible for describing in detail the “facts or circumstances that led to the arrest” of the driver.  As you can see, the form states that the “narrative must be an original”.

Unfortunately, the arresting officer, the one that certified under penalty of perjury, only put the following on the DUI probable cause section:

“See attached reports.”

That arresting officer then signed, dated, and put the badge number, a printed name, and the name of the police agency on the documents, instead of any details related to probable cause.  Recall that probable cause is one of the essential issues that the DMV must make a finding on.

Who prepared the other reports?

Officer Renteria here is the arresting officer.  The other reports, which here were to be used to testify to the probable cause, were not written by the arresting officer. 

They were both written by, and approved and reviewed by, the same officer – a different officer, (Bedell) who did not testify via documents under penalty of perjury. 

Ultimately, the DMV hearing officer agreed with our argument and our objections – there was no actual admissible evidence as to probable cause, and there was no inherently reliable evidence presented as to what happened.

The Win at the DMV.

Case Study DMV Win DUI With Accident High BAC

The client’s license was returned to them, and needless to say, the client was very happy about not losing their ability to drive due to our efforts towards the DMV win.  As this Case Study DMV Win DUI With Accident High BAC shows, even with bad facts, the DMV cannot avoid the law.

Please check out our other case studies and our case results. And if you have questions for our Orange County DUI Lawyer, contact our firm any time.  We are happy to discuss how we might help you also.