Case Study: DMV Refusal DUI Hearing Win

This is another case study, added to the list along with our case results from DUI cases we have handled.  A case study is a deep dive into the facts, 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 law firm after being released from jail for a second time DUI that was handled by the public defender.  As a second time offender, with a refusal, our client had a one-year suspension of all driving privileges, with no option to get a restricted license.

Our client was very concerned about the potential loss of her driving privileges at the DMV.  Her main goal was to drive again, which the 18-month suspension from her second time DUI, and the one-year driver’s license suspension from her refusal, kept her from doing. As this case study shows, we were successful in obtaining a late hearing for our client from the DMV and then winning the hearing for her, obtaining her driver’s license back again.

The Problem – DMV hearing 10-day deadline was missed.

As we have mentioned before in our detailed guide to DMV procedures, the DMV is very strict about the 10-day deadline.  The DMV requires that you schedule any hearing within 10 days from the arrest.  Here, the arrest took place on May 31, 2017, and we were not retained until over two months later.  We made a request for a late hearing on July 26, 2018.

Requesting a late hearing

We asserted to the DMV that, because our client had been in jail, and was not advised of her hearing rights by her public defender before being sent to jail, she was unable to request a hearing, and was unable to request a hearing.

Our request was granted, and the hearing was set.

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.  The hearing was set, and the police had forwarded a copy of all reports in the case to the DMV for the hearing. We went to work on her case and began preparing for this client’s DMV hearing in the DUI case right away and began reviewing the police reports, driving record, and other evidence in the case.

The facts of the DUI case

The facts revealed that the client was involved in a DUI with an accident in Laguna Hills.  She gave a single breath test, which was a .23% alcohol result, and then refused any further breath or blood tests.  She was arrested.  The police obtained a warrant and drew her blood, which came back at a .23% blood alcohol level – almost three times the legal limit.

This client also had a prior DUI, as described further below.  That meant she was facing an 18 month suspension for the second time DUI, and a one year suspension for the refusal.  She was facing a very long time without any driving privileges.

The DMV Discovery – Proving Breath Alcohol Levels

The DMV admin per se hearing procedure allows 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, the officer certified that he had been trained in the instrument used to measure breath and that it met the requirements of Title 17 (California’s blood and breath testing regulations).  However, Title 17 requires two breath tests, which must match within a .02%, and be separated by two minutes. (The “2/2/2” rule).

This test did not meet the standards of California law, despite the police officer stating it did.  Although, since the DMV was proceeding under on a refusal basis, the one year mandatory suspension (plus the second offender DUI suspension) are still faced, even if the blood test is excluded from consideration.

Challenging the DMV’s proof of refusal

Here is a portion of the DMV form, the DS-367 Officer’s Statement, in this case.  As you can see, the officer wrote as to refusal that after reading the admonishment to the driver, that the “Driver stated she no longer wanted to continue [the] test.”

Unfortunately, there was no actual language used by the licensee, only the verbiage written by the officer, which paraphrased what the driver said.  That is against the spirit and language of the form, and creates a legal conclusion by the officer, instead of providing accurate evidence of what was said, exactly, towards proving refusal, in response to the officer’s admonition and request, “Knowing the consequences, do you wish to provide a blood or breath sample?”

Challenging the DMV’s proof of refusal

Above is the police officer’s “statement of probable cause“.  As you can see if you enlarge the document, the DMV instructs officers to
describe in detail the facts and circumstances that led to the arrest.”  It also states that an officer may “cut and paste” information from the arrest report, but if they do so, this section must be dated and contain an original signature. 

There was no date, or signature anywhere on this page or section of the officer’s statement. 

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.

Asserting Client’s DMV Objections and Argument.

At the hearing, we had presented a written brief and put objections on the record based upon the issues above, and asserting hearsay objections, a lack of foundation, and an improper legal conclusion.

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 DMV issued a set-aside, reinstating the client’s license.

The Win at the DMV.

This client’s license suspension was “set aside”, and her license reinstated.

Case Study Conclusion

With an accident, a prior DUI, a high blood alcohol level of a .23%, and a refusal, this client had many facts against her. 

However, due to the right objections, and an aggressive defense, 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 shows, even with bad facts, the DMV cannot avoid the law and must give a license back when the law requires it.

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 anytime.  We are happy to discuss how we might help you also with your DUI or DMV matter.