The Department of Motor Vehicles (DMV) has what is called the burden at the hearing. They must prove by a preponderance of the evidence that the answer to the three issues/questions is Yes. The DMV hearing officer will attempt to enter the sworn statement of the arresting officer and other evidentiary documents into the record at the hearing.
A fundamental step by a DUI / DWI Criminal Defense Attorney to prevent the suspension is to work to keep these documents out. Because these documents are created out of court and used by the Department of Motor Vehicles to prove DUI / DWI, they are considered hearsay. A DUI / DWI Criminal Defense Lawyer should be able to effectively wield the law to keep these documents out.
For example, Evidence Code sections 664 and 1280 can be used together or separately to object to the admission of the reports and keep them out of the record. Evidence Code section 664 establishes a presumption that an officer created the arresting documents in the official duty of his job. If it can be found that the officer made the arrest unlawfully, among other grounds, then the presumption does not apply. Therefore, the arresting documents are hearsay and should not be allowed in.
Evidence Code section 1280 allows the documents to be entered into the record if certain facts related to the creation of the documents (or reports) are established. An effective DUI / DWI Criminal Defense Attorney knows how to argue that the certain facts do not exist; therefore, he or she may be capable of keeping the reports out of the record.
Title 17 creates certain requirements that must be met to allow blood and breath result evidence to be trustworthy. This section can be wielded to attack the breath or blood evidence directly. An effective attack on this evidence using Title 17 requirements could block the breath and blood results from coming in. Without this evidence, the DMV has no other way to establish your blood alcohol content. This circumstance would force the DMV to Set Aside their suspension.
Depending on the facts of a case, a DUI / DWI Criminal Defense Lawyer may utilize witness testimony to present your case. They could use your testimony or a passenger witness testimony to effective fight your DMV case.
A DUI / DWI Criminal Defense Lawyer can present this testimony through live testimony or sworn statement (declaration). Again, the facts of the case and/or the strategy needed to present these facts effectively before the hearing officer dictates whether the testimony should be presented live or by way of a sworn statement without you or the witness present.
Once both sides at the DMV APS hearing have presented their case, the DMV Hearing Officer takes the case under submission. Next the DMV Hearing Officer will send the decision to you by mail. It generally takes on to two weeks for you to receive your decision; however, it is not uncommon for it to take one month or more for it to arrive.
There are two possible outcomes to a DMV hearing. First, the DMV Hearing Officer can Set Aside the action (revocation, suspension or restriction of your driver’s license / privileges). This means that your DMV case is over and you are free to go the DMV and obtain from them a duplicate license at no charge.
The second possible outcome is an APS action will be imposed. This could be a revocation, suspension or restriction of your driving privileges. It could also include certain requirements of you before your driving privileges will be reinstated. These requirements generally include the enrollment and/or completion of an alcohol education class. These classes could range from 3 to 30 months in length of time. The length of the class depends on how many DUI convictions and/or APS suspensions you have had in the past.
You may also be required to file with the DMV formal proof of insurance. This formal proof of insurance is filed by filing a form document called an SR-22. This requirement may be imposed upon you for at least 3 years. Again, how many years your are required to file an SR-22 depends on how many DUI / DWI convictions or APS suspensions you have in the past.
The DMV Hearing is a Technicality Driven Hearing
The Department of Motor Vehicles relies heavily on the arresting documents provided to them by the arresting officer after your arrest. You could not convict someone at court based on a report. You need a live witness sitting before a jury to testify under an oath that they will tell the truth, the whole truth and nothing but the truth.
You may or may not need the live witness at the DMV. The DMV will not likely call any, instead relying on the documents generated at the time of the DUI / DWI arrest. They are used to testify on behalf of the arresting officer while he is working somewhere else or off on some far away vacation.
If these documents are not correct or thoroughly completed, than they are insufficient to properly present the arresting officer’s testimony in his absence. In other words, if the arresting officer failed to put checks in all the right boxes, the DMV cannot possibly overcome even this low level burden of Preponderance of Evidence required for them to suspend your driver’s license / privileges.
Therefore, much of the fight at the DMV hearing centers around the Admissibility of Evidence. If you are successful at keeping documents out, than the DMV must Set Aside the suspension of your driver’s license / privileges. It is here where the experience and knowledge of a DUI / DWI criminal defense lawyer makes all the difference. An experienced and knowledgeable DUI / DWI criminal defense lawyer knows where the pitfalls and likely mistakes exist for the DMV. These pitfalls and mistakes can make all the difference between a suspension and a Set Aside of that Suspension at the hearing.
A Good DUI / DWI Criminal Defense Lawyer Does Not Rely on Technicality Alone.
A successful DMV APS hearing does not survive by technicality alone. Knowing the law and science of DUI / DWI defense is also crucial for success at the DMV hearing. In many cases, a Forensic Alcohol Expert is needed to prove certain facts or theories in a case. An expert, when efficiently and properly used, can convince the hearing officer, among other things possible, that your Blood Alcohol Content (also referred to as: BAC) was below .08% at the time of driving.
Like the arresting officer, an expert, when efficiently and properly used, can effectively present your case at the hearing by way of a sworn statement or declaration, as well. An expert can also testify in person at the hearing to make the argument more effective. If the facts of your case require, than you should present live testimony by a Forensic Alcohol Expert at the hearing.
A common theory requiring a Forensic Alcohol Expert’s testimony is the Rising BAC Argument. Alcohol, when consumed does not instantly enter the blood stream or brain thereby causing impairment of your ability to operate a motor vehicle. Once consumed, alcohol must be processed by the body and transferred to the blood and ultimately, the brain before impairment results.
First the alcohol must be absorbed through the walls of your stomach and small intestine in order to reach the blood and ultimately, the brain to cause impairment. This phase of your body processing alcohol is commonly referred to as the absorptive phase. During the absorptive phase, your BAC is still rising. Therefore, a breath or blood test result, even if above a .08% BAC, is not definitive that a person’s BAC was at or above .08% at the time of driving.
Remember, a breath or blood results is always taken sometime AFTER the time of driving; usually, during a DUI / DWI investigation incident to a traffic stop. That test result is only a presumption of a person’s BAC level at the time of driving. This presumption can be rebutted (or shown to be NOT the case) by convincing the hearing officer through Forensic Alcohol Expert’s testimony and effective presentation of evidence that a person was still in the absorptive phase of processing alcohol through their body at the time of driving; therefore, even though a breath or blood test, taken sometime after driving, indicated a BAC at or above a .08%, the BAC at the actual time of driving was much lower and/or, at least below .08%.
When this argument is presented properly to a hearing officer, it can be effective enough to convince the hearing officer that your BAC was below .08% at the time of driving; therefore, the hearing officer must Set Aside the APS suspension and reinstate your driver’s license / privileges.