Saturday, February 18, 2012

Starting in 2012, DMV Can Revoke a License for 10 Years on 3rd DUI

New legislation has authorized the California DMV to revoke a drivers license for 10 years upon a 3rd DUI conviction.  The new law authorizes a Judge to order the revocation in appropriate circumstances, but the revocation will not be automatic.  If the Court does not make the order, the DMV will not take action.  Currently, the revocation is for 3 years, which will be the default period unless the Court makes any additional orders.  If the revocation is imposed , after 5 years the licensee can apply for an early restriction with IID and proof of completion of a DUI school.  California is not the first state to impose such a harsh penalty.  Those facing a third DUI should consult a lawyer to familiarize themselves with other penalties and California DUI laws in general.

Friday, February 17, 2012

How Does a DMV Hearing Work in a California DUI Case?

A DUI arrest inevitably leads to the imposition of a suspension of the driver's license in California.  In order to challenge any suspension the driver must request a DMV hearing to fight the action. In a DMV Administrative Per Se hearing, the DMV bears the burden of proving by a preponderance of the evidence certain facts, including that the driver was operating a vehicle with a blood-alcohol level of 0.08 percent or higher. The DMV may satisfy its burden of proof by using the presumption of Evidence Code in section 664. Procedurally, it is a fairly simple matter for the DMV to introduce the necessary foundational evidence. Evidence Code section 664 creates a rebuttable presumption that blood-alcohol test results recorded on official forms were obtained by following the regulations and guidelines of title 17. The recorded test results are presumptively valid and the DMV is not required to present additional foundational evidence, such as testimony of the arresting officer. With this presumption, the officer’s sworn statement that the breath-testing device recorded a certain blood-alcohol level is sufficient to establish the foundation, even without testimony at the hearing establishing the reliability of the test.

According to Bruce Blythe, a Bakersfield DUI Attorney, Once the DMV establishes its prima facie case by presenting documents contemplated in the statutory scheme, the driver must produce affirmative evidence of the nonexistence of the presumed facts sufficient to shift the burden of proof back to the DMV. The licensee must show, “through cross-examination of the officer or by the introduction of affirmative evidence, that official standards were in any respect not observed. Once such showing has been made, the burden shifts to the DMV to prove that the test was reliable despite the violation.  The failure to shift the burden back to the DMV will invariably result in an upholding of the suspension.

Sunday, February 12, 2012

California Fills In The Gap For Second Offense Wet Reckless

Thank goodness the legislature finally changed the law regarding second offender wet reckless convictions.  Prior to 2012, anyone convicted of a second offense DUI could get a restricted license for work after 90 days.  However, if the offense was reduced to a wet reckless the offender had no such option and had to wait a full year.  Finally, the lawmakers realized the injustice and inequity of the law and made the appropriate amendments.  The frustration of many attorneys was off the charts and no remedy was available other than to go back to Court and plead guilty to a full DUI.  It took the state a full year to rectify the laws and fix the inherent problem. How a law can become so convoluted and unfair is yet another sign of how Sacramento always leans towards greater punishment rather than leniency and fairness.