McGregor &
Ernenwein:
When a driver is arrested for driving under the influence of alcohol
in California the police officer will normally confiscate the driver's
license. After confiscating the license the police officer will give a
"Temporary License Endorsement". This temporary license
generally allows the driver to drive for a period of 30 days. Within
ten days of the issuance of the temporary license the driver or his
lawyer must contact the DMV to request a hearing. Once a hearing has
been scheduled a "stay" of the driver's license will be
permitted allowing the driver to drive past the 30 day period. An
"interim driver's license" will be forwarded to the client
allowing driving until the date of the hearing.
Three issues are
addressed at a typical hearing before the DMV after an arrest for
DUI:
- Was there reasonable cause to determine that the client was
driving a motor vehicle?
- Was the client lawfully
arrested for driving under the influence of alcohol and/or drugs?
- Did the client submit to a breath or blood test with a
blood-alcohol concentration of 0.08% or greater?
While
these issues may seem fairly straight forward, in reality they are not.
Documentary evidence will generally be presented in support of these
three issues. That is, the DMV will submit various documents including
a copy of the Temporary License Endorsement, a document entitled
"Officer's Statement", arrest and police reports, traffic
collision reports if applicable, intoxilyzer test records, blood test
records, laboratory certification records in cases of blood testing,
report of blood alcohol concentration in cases of blood testing and
various other documents. The law in these administrative cases is that
although documentary evidence is admissible as "hearsay" it
must be "reliable and trustworthy". Many times the documents
the officers submit to the DMV contain ambiguities or omissions such as
misplaced dates and times, missing signatures or officer information,
as well as a wide variety of mistakes. In many hearings the client will
prevail or "win" the hearing if the documents fail.
Therefore, even if the client drove while under the influence, was
lawfully arrested, and had a 0.08% or greater blood-alcohol
concentration in a breath or blood sample the DMV hearing may very well
be won. McGregor & Ernenwein have successfully represented clients
in hundreds of these hearings.
In cases where the client refused
to take a blood-alcohol test the DMV must still prove the three issues
above. Additionally the DMV must prove that the client was properly
advised of his obligation to take a blood-alcohol test and that the
client knowing the consequences willfully refused. It can often be
shown that the client was not properly advised of the obligation to
take a blood-alcohol test under a variety of circumstances including
the officer failed to adequately advise the client, the client did not
understand English sufficiently and was not provided an interpreter,
the client was injured or otherwise unable to understand the
advisement.
In cases of an accident or other cases where an
officer does not actually observe the driving of the vehicle the
officer must submit to the DMV documents describing how the time of
driving was determined. It is presumed that the blood-alcohol
concentration accurately reflects the blood-alcohol concentration at
the time of driving only if the officer can establish that the driving
occurred within three hours of the time of breath or blood testing.
This is an important issue in accident cases. Often the officer will
simply indicate on the arrest and accident reports the time of driving
as the time the officer was dispatched to the scene. This generally
will not suffice for DMV purposes. In cases where the officer did not
observe driving but, for example, received a 911 call or an anonymous
tip to go to a certain location where the client is observed outside
the vehicle or in a stopped vehicle it is very difficult for the DMV to
establish that the client was driving and that the blood-alcohol test
occurred within three hours of the time of driving.
If, in
addition to all other criteria, it is found that the client was
adequately advised of the obligation to take a blood-alcohol test and
willfully refused the driver's license will be suspended for a period
of one year without eligibility to obtain a restricted license.
McGregor & Ernenwein provide a careful defense of clients charged
in these types of matters and have had success in these hearings.
There are potentially significant DMV consequences for clients who
have suffered multiple driving under the influence convictions or prior
DMV actions. The length of the suspension or revocation of the driver's
license increases with the number of DUI's or prior DMV actions a
driver has. The suspension time increases even further if the case
involves a refusal to take a blood-alcohol test.
If the client does not prevail at the DMV hearing, the client may
be eligible on a first offense case for a restricted license. After a
30-day "hard suspension" wherein driving is not allowed the
client is generally able to obtain a restricted license allowing
driving to and from work, in the course of employment, and to and from
an AB541 first offender alcohol program, which is 36 hours in length.
In order to obtain this restriction the client must submit an SR22
proof of insurance form, proof of enrollment in an AB541 alcohol
program and pay a fee of $125.