Sunday, March 30, 2014

California Court Clarifies Driving While Texting Law

Recently, the California lawmakers made it illegal to text and drive.  Many DUI drivers violate this statute.  The law was instantly applauded by safety groups as innovative and necessary in the age of technology .  But what about those drivers that use their devices for looking at maps?  The law seemed to apply to those drivers, not so says a Central Valley appellate court.  In this case a CHP officer cited The driver for prohibited use of a wireless telephone while driving after the officer saw him check a traffic map on his phone. (Veh. Code, § 23123, subd. (a).) driver claimed he was not "using" the phone within the meaning of the statute. 

The defendant appealed the ruling by the trial judge and the appeals court overturned the conviction. Section 23123, subdivision (a) prohibits a driver from using a wireless telephone unless it is configured for hands-free "listening and talking" and is used in that manner while driving. Based on the wording of the statute, it does not require that the phone be used in a manner that allows for "hands-free looking," or "hands-free operation." The legislative history of the law reflects it was focused on prohibiting a driver from holding a wireless telephone while conversing on it. This interpretation is supported by subsequent laws, such as section Vehicle Code 23123.5, which prohibit texting while driving, as they would not have been necessary if section 23123 applied to all non-hands-free "uses" of wireless telephones while driving. (Thanks to CCAP).

This statute will likely be used often in the context of DUI enforcement.  Indeed, in one recent case,  Torrance DUI Attorney Matthew Ruff represented a motorist that was pulled over for this reason, we took the case to trial and the driver was acquitted.  Time will tell how police apply the law to those seen staring at there phone while driving.

Saturday, March 8, 2014

DMV Appeal For DUI Suspension

The law in California allows a person to appeal an adverse DMV decision for APS hearings.  The technical name for the appeal is called a departmental review.  Thousands of hearings are conducted every month throughout the state for driving above a .08 or refusal to submit to a chemical test such as blood of breath.  The consensus among attorneys handling these types of cases is that the odds are generally against the licensee.  With that being said, there are instances when the DMV takes away someone's driving privilege without a sufficient legal basis and it is in these cases when an appeal is appropriate.

The framework of an administrative hearing, commonly referred to as an APS, is quite complex and not easy to understand from the lay men's perspective.  For starters, the same person that is assigned to be the judge is also appointed as the prosecutor and jury, for lack of a better word.  This inherent conflict gives rise to many bad decisions that are influenced by a lack of objectivity.  Many would argue that the system needs to be revamped to allow a neutral fact finder to oversee the proceedings, but these attempts have all been shot down by the Department.

So, back to the topic of an administrative appeal.  First, the review itself must be requested within 14 days of the final decision by the hearing officer.  Failure to comply with this time deadline is fatal to the appeal.  Second, the cost to file an appeal of a APS decision is $120.  This fee is non refundable even if the appeal goes in the drivers favor.  Once the review is filed it often takes several weeks to complete.  The file is sent to Sacramento along with a copy of the tape recorded hearing.

Any administrative reviews are denied, the DMV will not allow for new evidence or witnesses to be presented.  The evidence that was submitted at the hearing is what is considered, period.  For hearings held in El Segundo California, the process usually takes a couple weeks and the drivers license suspension will not be stayed pending the review .

I hope this article is helpful to those considering filing a appeal for a license suspension for DUI, driving with a .08 or higher and refusal cases.