Appealing a DMV Decision In A Refusal Case

A DMV refusal suspension is the most serious suspension the department imposes.  The reason behind this goes back to the agreement we all made when our license was issued in California, that is we all agreed to "implied consent" which means if we are arrested for DUI we would agree to submit to a breath or blood test at the request of a peace officer.  The DMV is the exclusive agency responsible for imposing sanctions for failure to submit to a chemical test, therefore the outcome of any concurrent court action will have no effect on any DMV decision regarding a refusal.  Put another way, if the DMV decides to suspend your license for a refusal (versus say having a BAC of .08 or higher), then no criminal court judge or jury can overrule that decision in any concurrent criminal dui case.

What this means is that your underlying criminal court case can be thrown out, dismissed, reduced, or you can be found not guilty and acquitted by a jury and the DMV will still not set aside the suspension for a refusal, unlike cases where you take a test and the issue is where you above a .08 at the time of driving.

There are appeal rights, however.  There are two options following a refusal finding:

1.  You can request an internal review of the decision by way of an administrative review.  This option has a cost of anywhere between $120 to $750 dollars depending on whether you decide to use the services of a lawyer.  The case goes to Sacramento and takes 2-8 weeks.  There is no right to a stay of the suspension pending the review.  You have 14 days from the date of the decision to file this appeal.

2.  You can file what is called a Writ of Mandamus to the Superior Court.  This is essentially a lawsuit against the DMV and the costs to pursue this are substantial.  Attorneys who do this type of work charge between 3-5 thousand dollars plus costs.  A civil judge will hear the case.  The time to do this can be long, anywhere from 2-6 months.  A stay of the suspension can be requested but is rarely granted.

What about a restricted license?  Unfortunately, the DMV has no procedure to request a restricted license in a refusal case.  There is no legal right to a work related license or any other limited license in refusal suspension cases.  The suspension can range anywhere from 1-5 years depending on the licensee's record and age.

What about the issue of need when it relates to a refusal?  Again, unfortunately the DMV does not consider a drivers need when it comes to a refusal suspension.  Therefore, issues such as medical conditions, critical need regarding work, school, etc., are not considered in the case.

Doesn't the DMV need to prove I was actually driving in order to suspend  my  license for refusing to submit to a chemical test?
Surprisingly, no the state only needs to show the officer had a "reasonable belief" that the person was driving in order to trigger the requirement to take a test.

Can I Appeal A DMV Decision?

The law in California allows a person who loses a DMV hearing to file an appeal.  There are essentially two options:  The first is to file what is called an internal administrative review.  This is an appeal that goes to Sacramento and is reviewed by a seperate unit that independently looks at the evidence and decides if the suspension should be upheld.  Many attorneys feel this avenue is a waste of time, however, as a lawyer who has 22 years experience I have had numerous cases overturned by this method and the cost is minimal.  Moreover, should the review be unsuccessful the licensee can still file a writ to the Court.

The second method of appeal is to sue the DMV by filing a court action by way of a writ.  This type of appeal is costly and time consuming.  The average cost to file a writ is well over $5000 and if the appeal is lost you could be on the hook for attorneys fees and costs for not only your side but the DMV as well.  However, this type of appeal is more neutral because an actual judge hears the case, not an employee of the DMV.

Can I Drive A Company Vehicle During Work Without An IID?

If you were sentenced in Los Angeles County for a first time DUI, a second or third offender chances are you were ordered to install an ignition interlock ,aka. IID, in your car and drive only vehicles equipped with an IID for a minimum period of 5 months.  What if you are required to drive a company vehicle or drive an employers car during work?  The law allows you to drive a work vehicle without an IID as long as certain conditions are met.

If the defendant is required to operate a vehicle owned by the defendant’s employer as part of his or her employment, the defendant may operate the vehicle without the installation of an ignition interlock device, as long as the defendant has notified the employer that his or her driving privilege has been restricted under California Vehicle Code section 23575 and 23700, and has proof of that notification in his or her possession or with the vehicle. Veh C §23576(a). 

It should be noted that this exemption does not apply with respect to a vehicle that is owned by a business entity, which is entirely or partly owned or controlled by the defendant. Veh C §23576(b).

How Can An Expert Assist In A DUI Case?

The defense of a drunk driving case is often multi faceted with many issues that can be pursued to develop a reasonable doubt.  Most of these issues involve science or the violation of regulatory requirements set forth by the state of California.  In fact, under California law if the government fails to perform the breath or blood test correctly it may rebut the presumption of reliability in the sample.

Most DUI Defense attorneys will tell you that defending a drunk driving case can be complex because of the science involved.  You see, in order to be effective in fighting DWI charges the lawyer must pierce the presumption that the breath test or blood test numbers from the police or lab are indeed accurate and reliable.  Here is how one well known attorney has described it:

"DUI cases can be quite complex when it comes to the chemical test aspects of the defense.  Both breath and blood tests often involve very unique scientific calculations that are difficult for the laymen to understand.  This is where an expert can help. The most common experts used in a drunk driving defense are forensic toxicologists who specialize in the interpretation of an individual’s blood alcohol level at a given point in time.  You see the breath or blood test you took will only tell you the level you are at when the sample was collected.  However, what is important is what the BAC was at the time of driving This is where a toxicologist can assist the attorney.  No one’s blood alcohol level remains constant over time, it changes, either going up or down within a certain period of time.  Importantly, when a person has drank alcohol close in time to the stop, he or she will usually be rising which means their particular BAC  will be lower at the time of driving, this helps the defense. Adjudging what a true blood alcohol level is at a certain time involves complex formulas that take into account absorption rates, burn off rates, and metabolism."

In addition to issues of rising blood, many cases involve situations where a cop or other person does not follow the proper procedures when collecting a blood or breath sample.  For example, the phlebotomist may fail to properly disinfect the puncture site or the collection might violate other state regulations.  Here, as well, an expert can be used to show how the procedures were not followed and explain why the violation affects the integrity and reliability of the sample. Hiring an expert can also be helpful in raising other defences such as contamination of a breath test by mouth alcohol or people that suffer from medical conditions such as GERD.

In some cases an expert in breath and blood testing can establish that the arresting officer failed to follow official standards such as California Code of Regulations Title 17 which dictates how breath and blood samples are to be collected, maintained and tested.  For example, in a breath case the officer may not comply with the mandatory continuous observation period prior to the breath test, codified in Cal Code of Regulations 1219.3.  If the officer does not follow these regulations the attorney can use that both at the DMV and Court to show the breath test results are unreliable.

Your Car's Computer Can Be Used Against You In A DUI Crash

In every DUI related car crash information about the speed of the vehicle, whether brakes were pressed prior to impact and other relevant evidence is often crucial in proving gross negligence.  In recent years the police have been getting creative in downloading data from the cars computer or SDM ( sensing diagnostic module) during their investigation. An SDM can provide important information about how the car was being driven moments prior to impact.

In one recent published opinion, People vs. Diaz, the Court noted the following:

"Every vehicle with air bags has an air bag control module that monitors a developing crash and, based on the information received, decides whether to deploy the air bags.   In addition, the module runs a diagnostic examination to make sure that its system is operating properly.   The module also has a function that records data and, after a crash, stores some of that data in the EDR, which is a component of the air bag control module.   For General Motors Corporation vehicles, this module is known as a sensing diagnostic module (SDM)․  In addition to recording such matters as the warning lamp status (which, when lighted indicates problems) and whether the driver's belt is buckled, an EDR captures information about the severity of a crash, known as the delta force or the change of speed, and the duration of the crash.   Moreover, the EDR records and stores four matters for a five-second period before a crash event—the vehicle speed, the engine revolutions per minute (RPM), the brake switch status (whether the brake has been applied), and the throttle position.“The SDM, which is controlled by a microprocessor, has multiple functions:  (1) it determines if a severe enough impact has occurred to warrant deployment of the air bag;  (2) it monitors the air bag's components;  and (3) it permanently records information.   The SDM contains software that analyzes the longitudinal deceleration of a vehicle to determine whether a deployment event has occurred based on testing that was done previously to determine what events would require protection by an air bag.   When the SDM senses an event (either a deployment event or an event that is not severe enough to require an air bag—that is, a near-deployment event), that information is recorded to the microprocessor's electrically erasable programmable read-only memory (EEPROM).   When the air bag is deployed, the SDM records the event as a ‘Code 51.’)   If the data from an EDR is properly evaluated, it can provide an impartial source of evidence for the reconstruction and biomechanics community to utilize"

Can Drug Withdrawal Equate To DUI?

It has long been accepted that a person who drives while impaired by a drug can be convicted of DUI.      In this recent case, however, the Court decided that a driver who is affected by the symptoms of drug withdrawal can also be impaired under the current laws in California.  As a Torrance DUI Attorney I have seen many cases where the Courts have allowed a prosecution for DWI when drugs were involved, this case stretches the limits of those laws and was likely influenced by the fact that 2 people died in the case.  Here are the facts of People vs. Jimenez:

Approximately 12 hours after he ingested methamphetamine, defendant drove his car. As defendant withdrew from the effects of the drug, he fell asleep, lost control of his car, and struck two pedestrians, killing them. A jury found him guilty of two counts of second degree murder and other offenses; it sustained allegations of prior DUI convictions. The trial court found a strike and other priors true. On appeal he claimed that "withdrawing" from the effects of methamphetamine does not constitute driving "under the influence" of the drug. The appeals court upheld the conviction. A person is under the influence of methamphetamine when, as a result of using the drug, his mental or physical abilities are impaired to a degree that he no longer has the ability to drive his car with the caution characteristic of a sober person under the same or similar circumstances. 

The Court found that Substantial evidence showed defendant smoked methamphetamine at some time before the accident and subsequently went into drug withdrawal, which resulted in defendant falling asleep at the wheel and killing two people. The prosecution did not need to prove that the defendant was in the first "excited" phase of intoxication. Defendant had three prior DUIs, had received judicial admonitions about the dangers of driving under the influence, and had attended classes in which he was warned of the dangers of drug-impaired driving. Substantial evidence supported the finding defendant drove while drug impaired with conscious disregard for life.   (Thanks CCAP).

DUI Hangover? What's Your Next Move.

For anyone facing the prospect of a looming DUI Court appearance the thoughts can be very terrifying and anxiety filled.  However, with the help of some good advice by a DUI Lawyer the future can look brighter and hopeful.

Most anyone who drives, at some point in their life they can be faced with a stop and arrest for being impaired by either alcohol or drugs or both.  In today's society the use of prescription drugs and even marijuana is prevalent and potentially illegal if mixed with the use of a motor vehicle.  Although the laws for substances other than alcohol are still in a state of flux, this doesn't stop the police from arresting anyone with the slightest appearance of over indulgence.

Here are the things you need to know right know:

1. If the arrest took place in California you need to take immediate action to protect your driving privilege.  Chances are you were given a temp license and that states you have 30 days to drive, but that doesn't mean you can't fight the suspension. Contact a lawyer right away so a hearing can be arranged with the DMV.
2. If the DUI involved alcohol there is an excellent chance your BAC may have been rising and therefore lower at the time of driving vs. the time you took the chemical test.  There are things you can do to increase your chances of success in Court and an attorney can spell these things out.
3. If you have a commercial license the consequences can be exponentially worse than if you have a non comm license.  Contact a lawyer immediately so he can arrange important dates to give you a better chance of prevailing and keep your commercial license.