Case History: California Drivers Advocates was hired to assist a client whose driver license was in jeopardy of being suspended following a DUI arrest in the mountain city of Big Bear. Our 47 year old client was distraught because of marital strife and the recent death of a family member when she left her home on the morning of July 13, 2015. Leaving the house, she intended to purchase donuts for her children and then return home. Before buying the donuts, however, she stopped at a local liquor store where she purchased a bottle of vodka and a large can of beer. She then made the stop to purchase the kids’ donuts and headed for home.
On the way home, she was overcome by a wave of emotion and turned off onto a side street to calm down. She pulled to the curb and parked. The act of pulling to the curb caught the attention of a passing motorist who would later prove instrumental in the case.
Once our client got her vehicle stopped, she put her seat back and had a good cry. She decided to remain there for a while to recover her emotions. She decided to open the bottle of vodka and take a few drinks to calm down. Well, a few drinks turned into her sitting there for an extended period of time listening to music. She ended up drinking all of the alcohol she had purchased and passed out in the driver’s seat.
1.5 hours later, the motorist who had taken note of her pulling over, returned to the area and noticed our client’s car still parked at the side of the road. Curious, the motorist walked up to our client’s vehicle and noticed her sleeping in the car. The motorist called 911 and both the fire department and CHP were dispatched to investigate.
When the CHP officer arrived, he found our client sleeping behind the wheel of the car with two empty alcohol beverage containers in the seat with her. Ultimately, he arrested her without the benefit of any Field Sobriety Testing or any PAS testing. Finally, an evidentiary breath sample was taken and revealed our client’s blood/alcohol concentration to be .33%, which is extremely high.
DMV’s Position: The California DMV’s position was crystal clear. Under the “Official Duty Presumption,” the DMV Hearing Officer presumed the responding CHP Officer had a lawful reason to detain our client. The hearing officer also presumed it was reasonable to infer that our client had driven drunk when she parked her car at the side of the road and therefore, the suspension of her driver license was warranted.
When we walked in the door, the DMV presumed our client’s guilt and challenged us to prove them wrong. Essentially our client was “guilty” until proven innocent.
Our Defense: At our DMV hearing, there were three primary questions to be addressed:
- Was it lawful for the officer to contact our client?
- Was it lawful for the officer to arrest our client?
- Was our client’s blood/alcohol concentration a .08% or greater when she drove?
Although our case presented interesting elements, such as a complete lack of Field Sobriety Testing and/or PAS testing, the “Magic Bullet” was the amount of time that passed between the time of driving and the time of evidentiary testing. Also, the fact that drinking occurred after driving was critical.
The DMV is permitted to presume the accuracy of any chemical blood or breath test, if it is taken from the driver within three hours of the termination of driving. In our case, the passing motorist established an actual time of driving that occurred 1.5 hours before the matter was even reported to the CHP. Also, once the fire department and the CHP arrived, a delay in their investigation caused the chemical breath test to be taken nearly four hours after the time of driving. We were able to establish this by issuing subpoenas to produce the 911 audio recording, the Cal Fire Dispatch Records and the CHP records. Since the chemical breath test was taken more than 3 hours after the termination of driving, the DMV could not presume its accuracy, no matter how high the results.
Also, because the client testified that she had begun drinking after parking the car, and because the responding CHP Officer found evidence of recent drinking by finding the empty liquor bottles, the DMV could not determine that our client had any blood/alcohol concentration at the time of driving.
Outcome: This case very detailed and took a great deal of effort to resolve. It took nearly a year and three hearing appearances to resolve, but we were able to prevail.
At the conclusion of the APS Hearing, the hearing officer took the matter under submission. Three weeks later, we received official notice that the hearing officer had “Set Aside” the suspension and our client’s driving privilege was fully reinstated. Our client suffered no APS suspension, was not required to attend a DUI school, and was not required to purchase an SR-22 Form. This was similar to being found “Not Guilty” by a jury. As a result of our effort, our client remains employed and is able to provide for her family. She has learned a valuable lesson and is committed to safe and sober driving.
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The DMV Defense Experts at California Drivers Advocates have been fighting and winning DMV Administrative Per Se hearings for years. We excel at every type of administrative hearing handled by the DMV and have a history of winning. Call us and let us get you back on the road.