Some DUI Defenses are Buried Deep

It should come as no surprise to learn that the DMV’s process for suspending your driver’s license after a DUI arrest is very, very unfair.

For starters, the hearing officer is both prosecutor and judge; they are concerned with only one thing: making sure your license gets suspended. It is widely understood that hearing officers are disciplined for overturning suspensions. You also need to know that the rules of evidence go right out the window; the DMV does not adhere to the strict rules of evidence required in any real court.

For these reasons and more, any reputable DUI attorney will tell you that winning a DMV hearing after a DUI is very difficult.  Very difficult, but not impossible…if your lawyer knows where to look.

In California, the DMV will almost always base its case for suspension on the officer’s report without ever calling the officer to testify; if the officer wrote it, it happened and it is true – according to the DMV.

But, what if the officer didn’t write it? What of the officer wrote it wrong?

For example, among the things the DMV must prove is that there was probable cause for the officer to stop you or contact you. For that determination, the hearing officer will look to the officer’s probable cause statement, also called a DS367.

Smack in the middle of the DS367 is an open space for a narrative description of the probable cause for the stop or contact. It will usually say something like “blah, blah, blah…witnessed vehicle speeding…” or “blah, blah, blah…witnessed vehicle weaving” whatever the reason for the stop, that is where the DMV will look to determine whether there was probable cause for the stop.

If that space is blank, the DMV will have a difficult time meeting their burden of proof and your lawyer should pounce on that opportunity to get the suspension overturned.

Often, the officer will just copy and paste the narrative section from the arrest report on to the DS367. However, when that happens, the pasted narrative must be accompanied by the officer’s handwritten initials. Sometimes they forget.

These are easy places that any decent DUI attorney will know to look for opportunities to win.

There are better and more compelling mistakes to be found when one looks deeper into the reports.

For example, in the DMV hearing underlying the case of Freitas v. Shiomoto ((2016) 3 Cal.App.5th 294), there was compelling evidence that the driver “appeared intoxicated” and the BAC was way more than twice the legal limit. In the same hearing, there was also undisputed testimony established that gas chromatography (the device used to determine BAC) is accurate if the device uses two columns. However, the attorney noticed and an expert confirmed that the crime lab here used only one column to test and render a conclusion about the BAC. After initially losing the DMV hearing, the attorney appealed the suspension and, on appeal, the Court ruled that not using both columns on a two-column device rendered the results invalid, and ordered the reversal of the DMV license suspension.

Another example deals with alleged refusals; if the officers says you refused to submit to a chemical blood alcohol test, either breath or blood, the DMV usually believes them blindly and will suspend the license for a whole year.

However, before a driver can “refuse” a test, the driver must first be properly admonished about the consequences of refusal and that admonition must be properly documented. A close look at the paperwork and examination of the officer by your DUI lawyer can often show that the admonition was incomplete, improper, or never given at all. If the admonition is faulty, there is no refusal; if there is no refusal (and there is no BAC), there is no DUI as far as the DMV hearing is concerned.

These are just a couple of examples of how a skilled DUI attorney can take advantage of hidden opportunities to win DMV hearings and prevent license suspensions.

If you or someone you care about has been arrested or accused of DUI, be sure to hire a DUI Attorney who will take the time to look deep for every chance to win.