Friday, March 7, 2008

California DMV process - California DUI Test Refusal Cannot Be Prior to a Lawful Arrest

A California DUI - Department of Motor Vehicles APS hearing is extremely complex and technical, and is usually based on California DUI police and California DUI chemical test reports, not live witness testimony as in a California DUI criminal trial. The California DUI - DMV evidence typically introduced at a DMV hearing is hearsay, which is generally admissible if it meets the requirements of an exception to the Hearsay Rule.

It is imperative to be represented by a California DUI - DMV lawyer who is knowledgeable about the DMV hearing process. A California DUI attorney will challenge the evidence based on the hearsay rule and other legal bases, and if the evidence cannot be legally introduced, the DMV cannot suspend the driver’s license.

How an APS hearing unfolds depends on several factors, such as whether the accused driver submitted to a chemical test of the blood, breath or urine to determine blood alcohol content (BAC), or refused the test. If the driver was under age 21 at the time of arrest, there are additional issues at stake. Driver Safety Officers are employed by DMV to hold hearings and make important decision.

If, for example, the DMV evidence appears to show a refusal took place before the time of a lawful arret, the California DUI attorney should refer to CVC 23612(a)(1)( A): "A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152 or 23153." Accordingly, implied consent laws do not apply or activate until after a lawful California DUI arrest.

A California DUI attorney will refer to CVC 14100 et. seq. for the statutory law on DMV hearings:

CVC 14105 mandates the Driver Safety Officer to make findings and order a decision .

CVC 14112 states that all matters in a hearing not covered by this chapter shall be governed, as applicable by Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code.

Any Order of Suspension should recite findings of fact and the conclusions of law. Could a Driver Safety Officer find imply through the evidence presented at hearing that the refusal followed a lawful arrest, and that the police officer gave the proper mandatory warnings of the dire consequence of refusal? Gov.Code Sec. 11425.50(b) requires specific findings to identify specific evidence from which the hearing officer could form the conclusion of law.

If the only evidence admitted by the Driver Safety Officer at the DMV APS hearing is the Officer's (sworn) Statement [DS367] and the California DUI police report -- both of which clearly show the alleged refusal was prior to lawful California DUI arrest, and perhaps related only to the PAS refusal -- then California DUI attorney should win on any Petition for Writ of Mandamus, i.e. "No reasonable hearing officer could have so concluded based on the evidence below, in impliedly finding (blank circumstance) by a preponderance of evidence, to support the conclusion that the request for test/advisement per 23612 occurred after the arrest". See Hughey v. DMV (1991) 235 Cal.App. 3d 752, Headnote (3): Before the DMV may suspend a license for a driver's failure to submit to a chemical test under the implied consent law it must make four findings: (1) the officer had reasonable cause to believe the driver was violating Veh. Code 23152; (2) the driver was arrested (3) the driver refused to submit to or complete the test and (4) the driver had been notified of the consequences of refusal to submit. If any one of the required findings is deficient, the suspension of the license must be overturned.

Standard on Writ: Is there substantial evidence supporting the findings below?

Findings of fact made by the Driver Safety Officer may reveal the insufficiency of evidence to support the legal conclusion reached by the Driver Safety Officer. That depends upon the record, and the record of California DUI attorney objections to the introduction of any of the DMV's evidence.

California DUI attorneys must make proper and timely objections to the use of facts which might support the Driver Safety Officer's conclusion. California DUI attorneys must object to the admission of that evidence or waive objections. If admitted over a California DUI attorney's objection, the Driver Safety Officer should not be able to utilize this information in forming a conclusion; and such a conclusion should be overturned on a writ after a California DUI attorney's petition.