Motion In Support of Elimination of The Permissive Inference Pursuant To VC23152(b)

 

In DUI cases it is important to present evidence to show your client was not driving with a BAC of .08 at the time of driving.  If no evidence is introduced to refute this, the prosecution will ask to have the trier of fact “presume” the BAC reported was the actual blood alcohol level of your client at the time of driving.

California Vehicle Code Section 23152 (b) in relevant part provides: “In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.”

“A rebuttable presumption requires the trier of fact, given a showing of the preliminary fact (here, that a chemical test result showed plaintiff had a BAC of 0.08 percent or more within three hours of driving), to assume the existence of the presumed fact (here, that plaintiff had been driving with a prohibited BAC) ‘unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption.’ [Citation.] In other words, if evidence sufficient to negate the presumed fact is presented, the presumption disappears and “has no further effect”, although ‘inferences may nevertheless be drawn from the same circumstances that gave rise to the presumption in the first place.’” (Coffey v. Shiomoto (2015) 60 Cal.4th 1198, at pp. 1209–1210.)

In this case the testimony of the expert constituted evidence that, if believed, would support a finding of the nonexistence of the presumed fact—that the driver’s BAC was 0.08 or above at the time of driving. The expert’s testimony was founded on the recency of the driver’s drinking and was clear, direct and credible. Thus, the presumption disappeared and the trier of fact was required to weigh all the evidence and inferences to reach a determination regarding the driver’s BAC at the time of driving.  The prosecution was required to rebut the evidence presented and failed to do so.  Here, there was no evidence presented, no expert evidence contradicting the expert’s opinions and conclusions; the prosecution presented no evidence challenging the factual bases of the expert’s opinions.

Based on the evidence presented at the hearing, including the expert testimony, we submit substantial evidence supports the determination that the driver rebutted the three-hour presumption and the weight of the evidence was in the driver’s favor.

Furthermore, in criminal prosecutions special rules apply:

 "The California Supreme Court has held that a jury

instruction phrased as a rebuttable presumption in a criminal case creates an unconstitutional mandatory presumption.

(People v. Roder (1983) 33 Cal.3d 491, 497-505. In accordance with Roder, the jury instructions have

been written as “permissive inferences."

Why Did I Receive A Notice of Suspension If I Haven’t Had My DMV Hearing?

 Oftentimes the DMV will send out a notice of suspension when a DMV hearing has already been set.  Why is this?  When you were arrested and released the officer filled out Paperwork and sent it to the DMV regarding the details of the incident. This is called the “Officer Statement” and DS367.  Sometimes the officer fails to check the right boxes that he gave you a copy of the notice of suspension and when this happens the DMV will send out a new notice to ensure the driver was actually served with the paperwork.  The problem originates from the fact that there are two different offices handling the case.  One is the local Driver safety office where the arrest took place.  The second is Sacramento Main Office where the paperwork gets sent after the incident.  

When you hired us as your lawyer and we set up the DMV hearing with the local office the suspension was stopped and stayed pending that hearing.  The second notice that you got comes from Sacramento because they don’t bother to check as it is all done electronically.  

What does this mean for me?  You don’t need to do anything.  The new notice is just a duplicate and your driving privileges remain in effect because the attorney already set up a formal hearing.  The whole thing is another example of the government not being efficient and one hand not knowing what the other is doing.  The California Department of Motor Vehicles is a huge bureaucracy and this type of thing is common.  As your attorney we are handling everything and appreciate that you let us know about the correspondence though as sometimes there are legitimate issues that need to be addressed, fortunately this is not one of them.  Thank you again for retaining our Law Firm to defend you in your DUI case.

Preparing For Your Testimony at a DMV Hearing

 For close to 30 years I have been defending drivers in DMV hearings in California.  During this period of time I have learned a thing or two about how Hearing Officers think and the manner in which they conduct the case.  

In many cases I have my clients testify about the facts and circumstances surrounding the arrest or contact with Police.  When I present client testimony it is usually to establish some important fact that will assist me in arguing that the officer failed to investigate the case properly or the client’s rights were violated in some way.  

In DUI license suspension hearings I often ask my client to testify about the initial arrest, the breath or blood test or any refusal that is alleged.

What is the most important thing to do to prepare for your testimony?

First, read the officer’s report completely.  Pay particular attention to any statement the officer claims you made.  It is imperative to be consistent when testifying.  If the officer reported that you said you drank two beers, you must be consistent and testify you drank two beers.  You see, hearing Officers are trained to find a witness not credible if they give inconsistent statements.  So if the officer reports you told him you stopped drinking at 2 a.m., you must testify consistent with that statement.  That is, you stopped drinking at 2 a.m.

Read through the report and memorize the statements you gave the officer and stick with those statements.

What Reporting Requirements are there for a Pilot arrested for DUI?

For most folks a DUI can have very severe consequences, however if you are a pilot the ramifications can be devastating.  Top California DUI Lawyer Matthew Ruff has over 25 years defending airmen and commercial pilots on drunk driving charges and DMV suspensions stemming from a DWI arrest.  The arrest can be very worrisome and scary for a pilot due to the stress of the possibility of losing his or her job and career.  Matt understands this and fights the underlying driving under the influence charge in criminal court and at the CA Department of Motor Vehicles.  In order for Matthew to fight both cases effectively, he must be hired early in the case.  If a pilot waits too long to hire an attorney, he or she may prejudice the case and decrease the chances of saving their pilot’s license with the FAA.

Pilots are required to report the incident in a variety of ways.  There are three primary reporting obligations, and something the pilot will need to start in certain cases.

1. A Pilot needs to report any administrative license sanction based on operation of motor vehicle (suspension, revocation, or other deprivation of driver’s license/driving privilege) within 60 days of date of ALS to Civil Aviation Security in Oklahoma City.  If ALS happens on arrest, that starts the clock, even if later stayed by court or licensing agency.
2. The Pilot needs to report DUI conviction within 60 days of date of conviction to Civil Aviation Security in Oklahoma City.
3. The Pilot needs to report the fact of a DUI arrest on AME exam (Airman’s Medical Exam), regardless of whether any thing happened after the DUI arrest (case rejected, diversion granted, no charges filed, tested under legal limit, blood tests returned .00 on everthing).

 

Each report is independent of other reporting obligations.

 

As a practical matter, once FAA (Civil Aviation Security in Oklahoma City or FAA Flight Surgeon/Medical) becomes aware of the DUI arrest, pilot clients typically go into FAA limbo where FAA lets pilot know FAA can’t “establish your eligibility to hold an airman medical certificate at this time” based on the answers to AME questions or reporting of ALS or conviction.  FAA will require a response to determine eligibility to fly.  If, and only if, it is a pilot’s first DUI in his or her lifetime, and airman submits to the chemical test, and chemical test results are below .15, airman’s AME examiner will be able to issue the airman’s medical certificate at time of AME exam so long as airman supplies all the information listed on the attachment to the AME physician.  As such, make sure you have this available.

 

If it is a pilot’s 2nd DUI in their lifetime, and/or if airman tested .15 or above, and/or if airman refused chemical test, airman will “need to submit complete copies of a current Substance Abuse Psychiatric evaluation performed by a Human Intervention Motivation Study (HIMS) psychiatrist, in accordance with the psychiatric portion only of the enclosed specifications. Please note that the evaluation must address your complete alcohol related history of usage and all offenses, and should include copies of all testing performed with a final diagnosis. All materials provided to FAA must also be provided to and commented on by the HIMS psychiatrist.”  This psych evaluation isn’t quick, and if pilot has an ATP license (which requires an AME exam every six months), the pilot needs to start building his or her file and working on the psych evaluation to avoid a lapse in the license.

So what should a Pilot do if he or she has been arrested for DUI in California?  First, understand that your driver’s license will be suspended administratively unless immediate action is taken to stay the suspension through the DMV.  If you ignore the APS and your driving privileges are suspended that triggers a reporting requirement, even before you go to Court.  Call Matthew immediately so he can stop the suspension from going through. 

What about a charge reduced to a “wet reckless” ?  The short answer is a plea to any reduced charge other than DUI or driving above the per se level is going to put the pilot in a better position to defend their pilot’s license with the FAA.  However, even if the DWI is reduced, if the airman loses his or her drivers license at the CA DMV reporting is mandatory.  Therefore, an aggressive two-part strategy is essential in order to put the pilot in the best position to keep flying.  Over the last 25 years Matt has defended drunk driving charges for licensed pilots with great success.

A DUI can be a life changing event for many commercial pilots.  California DUI Attorney Matthew Ruff has over 25 years defending driving under the influence cases for clients.  Matt can be reached on his cell at 310-686-1533.

License Suspended for DUI? Here’s how to get it back.

 In California if you are over 21 and arrested for driving under the influence of alcohol with a .08 or more the DMV will seek to suspend your driving privileges for up to 9 months administratively, assuming you have no priors, not on probation and submitted to a chemical test at the request of a peace officer.

Assuming you have not been convicted in Court for VC23152 or VC23153, once the suspension goes into effect you can get reinstated with a restricted license, here are the options available to you:

Option 1.  Get reinstated immediately with the installation of an IID and a SR22.  This is a device mounted in your vehicle that requires you to produce an alcohol free breath blow in order to start the car.  This option allows for full non commercial driving privileges that allow you to drive anywhere you want anytime you want as long as you have the IID.  This restriction runs for up to 6 months, after that you can get the IID removed and have your full license reinstated.  You will need to also enroll in an approved alcohol program (AB541 at a minimum), obtain the proof of IID installation DL920, provide proof of financial responsibility by way of an SR22, then visit a local DMV office (appointment recommended) and pay the mandatory reinstatement fee of approximately $145

Option 2.  Apply for an employment/treatment program restricted non-commercial license.  This license allows you to drive only to and from and during course of employment and to and from the DUI classes.  The benefit of this restriction is that is does not require an ignition interlock (IID).  The restriction runs for up to 12 months and requires a 30 day “hard” suspension where you cannot drive at all.  After the 30 days you can apply for the restriction as long as you get enrolled in an approved DUI program (AB541 minimum), obtain proof of financial responsibility (SR22), and visit a DMV office to pay the $145 reinstatement fee.  This restriction lasts for up to 12 months after which time you can get your full license back.

It must be understood that both of the options above assume you have NOT been convicted in Court of DUI or DUI with injury.  If you have been convicted in Court or believe you will be convicted in Court you may have similar options but the period of the restrictions run for a longer period of time.

If you choose not to take advantage of any of the restriction options you can simply ride out the suspension which lasts anywhere from 4-9 months and get reinstated thereafter once you have obtained an SR22 and paid the reissue fee.

Note:  If you have a commercial license you must downgrade to a non-commercial license as your commercial driving privileges will be disqualified for a period of one year.  Also, if you have any other holds such as FTA, child support or negligent operator suspensions then the above restriction options may not be available to you.

If you have any questions call Top California DUI Attorney Matthew Ruff for a consultation direct on his cell phone at 310-686-1533.

Getting Your License Back After A DUI Arrest With a Prior

This article will provide information about how to get your license reinstated after a DUI suspension.  This article is intended for people who have multiple DUI convictions on the record if the DMV suspended your driving privilege based on an APS suspension also known as .08 or more you are eligible to obtain a restricted license immediately with the installation of an IID. With this restriction you can drive any time anywhere as long as the vehicle you are driving is equipped with an ignition interlock device (IID).  You will have this restriction for up to one year.  To apply for this restricted license must do the following:

1.    Provide proof of enrollment in a suitable DUI program. This program is called the SB38 program.  The program is for a period of 18 months.
2.    Provide proof of insurance. This is referred to as an SR 22 document that must be filed directly from your insurance provider to the DMV.
3.    Provide proof of in ignition interlock device, this is done using a DL 924 The IID provider will typically file this directly with the DMV however you may need to present it to the DMV along with your other paperwork. 
4.   You must pay a reissue fee of $125, to the DMV.  Lastly, you must have no other holds or suspensions on your driving privileges for child support or any failure to appear.

Once you have satisfied the above requirements you should visit the DMV office, and appointment is recommended. Assuming all of the above have been satisfied you will receive a hard license from the DMV that is very similar to the license you had before your arrest. It is important to understand that this restricted drivers license applies only to the APS  suspension.

California DMV During COVID-19 Pandemic

DUI AB541 and SB-38 Program Enrollment & Counseling

According to DMV sources, DUI program locations are enrolling and scheduling counseling. California is allowing in-person or Telehealth (video) for those following COVID-19 guidelines. AA attendance is taking place online through different web based providers.  It is advisable to check with the classes in your area to determine whether they are participating in the virtual attendance scenario and research and find out which DUI programs in the areas can provide these services. 

California DMV has reopened select field offices to assist customers with transactions for in-person visits, such as DL-920 form (proof of IID installations).

The following 25 field offices a re now open Monday - Friday from 8 a.m. to 5 p.m., with the exception of opening at 9 a.m. on Wednesdays.

California DMV Offices that are open during the COVID-19 Pandemic:

Arleta | Bakersfield | Carmichael | Concord | Fontana | Fresno | Fullerton | Glendale | Inglewood | Lancaster | Los Angeles | Modesto | Montebello | Oakland | Claremont | Palm Desert | Redding | Salinas | San Diego Normal | San Francisco | San Joe DLPC | Santa Ana | Santa Rosa | Stockton | Yuba

During the COVID-19 pandemic, California Department of Motor Vehicles is encouraging customers to use online services, virtual services, and other service channels to complete transactions, including driver license and vehicle registration renewals. 

DMV employees are instructed to maintain physical distancing while serving customers in a DMV field office. DMV staff may direct customers to online services and other available options for transactions that do not require an office visit, New appointments are not currently available. Employees in the remainder of DMV's 170 public offices will provide services through the Virtual Field Office, The DMV plans to open these offices in phases during the coming weeks. 

More information on office openings will be provided on the California DMV website.

If there is no DMV office open in your clients' area, they also may email a scanned copy or picture of their proof of ignition interlock (DL-920) after the install to their provider. Many companies will then fax it to the mandatory action unit (MAU). 

Drivers may still need to contact MAU 

at 916-657-6525 regarding any fees owed.

DMV

P.O. Box 242890

MS - J233-MAU

Sacramento, CA 94290-0001