Saving Your License with the Department of Motor Vehicles (DMV)
If you are arrested for Driving Under the Influence of Alcohol (DUI), the arresting officer will confiscate your license, give you a temporary license, and immediately forward the police report to the DMV in Sacramento. By law the officer must forward your arrest report to DMV within 5 working days. DMV then initiates an administrative action, called an “Administrative Per Se” or “APS” action, to suspend your privilege to drive.
WARNING: If you do not call the DMV within 10 calendar days of your arrest, the DMV will automatically suspend your privilege.
This suspension will become effective 30 days after your arrest. Always schedule an in person hearing with the DMV to preserve your privilege to drive. You may continue to drive until the outcome of your hearing, but the hearing must be scheduled first!
There are two reasons to schedule a DMV hearing. First, by scheduling a hearing you are taking the first steps towards saving your license and fighting your case. This is especially important if you believe you were not under the influence, or if you want to see all of the evidence against you before you make a decision. If you do nothing, you will automatically lose your license. Second, if your license is eventually going to be suspended, it gives you the opportunity to get your affairs in order by preserving your privilege to drive until the outcome of the hearing.
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There are three issues the DMV must prove to suspend your license. First, the DMV must prove the officer had probable cause (a good reason) to stop or make contact with you. Common examples include responding to the scene of an accident, speeding, swerving, or an alleged traffic infraction. Second, the DMV must prove the officer had probable cause to arrest you. Finally, the DMV must prove you drove a motor vehicle at a time when your Blood Alcohol Content (BAC) was 0.08% or greater.
The DMV usually tries to prove these three elements by alleging that your driving pattern, the officer’s observations of so-called “objective symptoms of intoxication,” your performance on the field sobriety tests, and the chemical evidence against you all show that you were DUI. Fighting Evidence of Impairment Officers almost always write in their reports that you had “slurred speech,” that you moved with an “unsteady gait” that your eyes were “red, bloodshot, and watery,” that you had an “odor of alcohol” on your breath, and that you performed poorly on the Field Sobriety Tests (FSTs).
Many Law Enforcement vehicles have video cameras mounted on them and, depending on the facts of your case, we should be able obtain a copy of the video and audio that was recorded during your arrest. With that video we may be able to prove the officer put false information in his or her report. We have seen many cases where the officer says that our client exhibited slurred speech but when we obtain the recording, our client’s speech is crystal clear. The officer may write in the report that you were swerving, or failed to stop at a stop sign, or your taillight was out; the video may show that report is false. All officers will state that you performed poorly on the FSTs. Again, video can disprove these allegations. If there is no video of your arrest (many Law Enforcement Agencies refuse to use video cameras precisely for the reasons stated above), we can still fight whether you were impaired based on your performance on the FSTs.
FSTs are a series of tests designed to detect alcohol impairment in an individual, and they are frequently used by the officer to try to prove that you were DUI. These tests are unique because the officer giving these tests must be adequately trained to administer them. Frequently, the officer is clueless about how to administer these tests and this will be evident from the police report. Even if the officer is adequately trained to administer FSTS, your performance on the tests may show that you were not impaired despite what the officer says.
We have Experts available in the field of FSTS who can testify on your behalf at the DMV hearing.
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Challenges to Breath or Blood Results
The DMV will use the results from breath or blood tests that were taken long after you were driving to prove that you drove with a 0.08% BAC or greater. There are many ways to challenge the results of such tests. First, whenever a police officer gives you a breath test, he or she must comply with Title 17 of the California Code of Regulations. Officers frequently do not comply with Title 17, and you can attack the chemical evidence if the officer failed to follow the law and obtained your breath sample improperly. Another way to challenge the chemical evidence is to question the accuracy of the breath machine. You have the right and your lawyer should obtain the accuracy or calibration records of the particular machine that captured your breath sample. If the machine is reading high, you can introduce this fact into evidence to challenge the accuracy of the machine in your case. Your lawyer should obtain the calibration records 60 days prior to and 60 days after the date of your arrest.
Remember, the DMV has the burden to prove you were 0.08% BAC at the time of driving. If your lawyer can prove the machine was off by even a small amount you may be able to rebut the chemical evidence. You can also challenge the BAC evidence presented at the hearing through expert testimony.
A common defense in DUI is Rising Blood Alcohol. For example, say you were pulled over at 5:00 pm but the arresting officer did not obtain your breath or blood sample until 6:00 pm. If you had unabsorbed alcohol in your stomach at the time of the stop, then your BAC was likely lower at the time of driving than it was when the officer finally obtained your breath or blood sample.
A DUI conviction or license suspension can have devastating effects on your professional and personal life. Call us today to set up an appointment with attorney Benjamin Scarfe; we offer a free consultation where we will discuss the facts against you, your side of what happened, the possible outcomes, and how we are going to fight to get you the best result in your case.