We talked about refusals and refusals can be very difficult cases to deal with. We have had people who were voluntarily submitting a blood test. The officers ask if you want to do a breath test or blood test and our client says, “I want to do a blood test.”
The phlebotomist comes in to do the blood draw and sticks our client in the arm but could not get any blood. They stick them again and couldn’t get any blood.
At this point, the officer said, “That’s enough. I don’t want you sticking this person anymore.” It was written up as a refusal even though the person did everything possible to comply with the officer’s order.
There’s another situation where things can go wrong and someone can get charged with a refusal when in fact they were complying completely.
It Is Possible to Refute an Officer’s Claim That the Chemical Test Was Refused
There was another situation where we saw a refusal allegation and in the end it was set aside and no suspension taken. This was an accident case. My client was involved in a single car rollover accident, was transported to the hospital and was under doctor’s care. The officer said that he refused to submit to a breath or a blood test.
We were able to bring in documentation and evidence and photographs of my client in the hospital with the c-collar on his neck, cast on his legs in full traction, just like you see in the old movies with his leg raised in the air and the bar over the bed so he could pull himself up if he needed to.
We were able to get that one set aside as well by showing that there was no way that our client could, in fact, communicate at the time that the officer said that my client refused.
It is Advisable Not to Underestimate the Consequences of an Administrative DMV Action
The Department of Motor Vehicles is a very important aspect of a DUI case. Regardless of what happens in court, the consequences of an administrative action can last years and years. We need to do what we can to stop that and minimize that if at all possible.
It’s very important, just on its own, to defend the administrative hearing and to do those hearings in person if at all possible.
Is Your Attorney Familiar with the Hearing Officers and Knowledgeable on the Right Approach to Use at the Hearing?
DMV Hearing Officers, as I mentioned before, are not lawyers, they’re not judges, they’re just DMV employees and they’re just people. They make decisions based on what their job requires but also based on the people that they’re dealing with.
I find it very beneficial to actually get in my car and drive down to the Driver Safety Office and meet face-to-face with the Hearing Officers. It’s important to know them as people before the hearing and after the hearing and to know how they conduct hearings.
Is Your Attorney Reluctant to Personally Attend the DMV Hearing?
It’s also important to do the hearings in person because you get to see things in the reports. When the DMV sends a copy of the report to the attorney or to the respondent (the client), they don’t get the original documents.
The DMV Hearing Officer has the original documents, and I have gone in to do hearings in person to see the original documents. With faxed or mail-copied documents you cannot see white out. You cannot see different colored pens or the markings on the paperwork.
When you get a document and the Department of Motor Vehicles is trying to suspend the license based on the document alone and the document has white out on it and the dates changed or the times changed, that brings up legal issues with the credibility and reliability of the documents.
We do the hearings in person whenever possible and that definitely helps our client get a better result at the end of the day.
There are a lot of ways to win hearings, but you must show up and fight. Most importantly, you have to know the law as well.
DMV hearings are very technical hearings. They, most of the time, are based on paperwork alone unless we’re subpoenaing witnesses in. We need to know what the legal objections are. We need to know the California Vehicle Code Sections that the department is relying on. We need to know the Evidence Code Sections which can get the documents excluded, and we need to know what the case law says on what is and is not admissible and relevant evidence for a DMV hearing.
The DMV Hearings Are Technical in Nature and It Is Beneficial to Retain an Attorney Well-Versed in the Science of DUI Defense
There are cases when we’re dealing with borderline blood alcohol levels. Someone may blow into a breath test machine and be a 0.08. We need to know what exactly the calibration and accuracy of that machine is because if we can prove that the breath test machine is reading high on a borderline case like that, we should be able to get it set aside and win.
It doesn’t mean the machine is not reliable or not accurate. It just may mean that it’s reading the point 0.001 high, which is a very small amount. But even if it’s reading just a little bit high on the borderline case, we can get it thrown out.
California’s Code of Regulations Title XVII
Another issue with the Administrative Per Se hearings is what is called Title XVII in California. This is California’s Code of Regulations Title XVII, which covers breath testing and blood testing. Title XVII is a pretty large body of law that covers the different aspects of breath and blood testing and what is required for a reliable sample.
If Title XVII is not complied with, this is a violation of the DMV rules. For example, if the officers didn’t do what was necessary and the crime lab technician didn’t maintain the machines in the proper fashion, we can show that to the Hearing Officer. By showing a violation of Title XVII, we’re showing a violation of the DMV rules, and that can result in a set aside or the license being given back.
Personal Attention
