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.

Can A Search Warrant For Blood in a DUI Be Challenged?

Ever since the US Supreme Court announced that forcibly withdrawing blood from a drunk driver is illegal, police all over the State of California have been obtaining search warrants to draw blood in driving under the influence cases.  What I have seen though is many officers are not putting enough information in the warrant affidavits to satisfy the legal requirements of probable cause.  To understand what I am talking about, let’s go into what the law requires for the issuance of a search warrant.

In order for a warrant authorizing a search to be valid the officer seeking it must convince a judge that “probable cause” exists to believe the place or persons to be searched contain evidence of a crime.  Probable cause is generally defined a a “fair probability” that evidence may be found to support a crime.  Probable cause must be established with facts, not conclusions.  What many officers are doing is providing conclusionary statements in the affidavit such as the person was displaying “symptoms of intoxication” instead of articulating the actual observations to let the judge decide.

A “bare bones” affidavit contains nothing more than conclusive statements which lack the facts and circumstances from which a judge can independently determine probable cause. Most affidavits in DUI cases are pre-printed, check the box type forms and therefore officers get lazy in articulating sufficient facts.

As a general rule, a warrant that is issued on insufficient probable cause is subject to a motion to quash.  However, the District Attorney will try to save the warrant by arguing the officer acted in good faith on the judicially authorized warrant and therefore the evidence should not be suppressed.

In response to that argument Counsel should argue that good faith doesn’t apply when the facts show that no reasonable officer would have believed probable cause existed.  This is where the attorney should get into his training and establish he is taught to articulate his or her’s basis to believe probable cause existed, though facts not conclusions.

Torrance DUI Attorney Matthew Ruff has over 25 years experience fighting and winning suppression motions in drunk driving cases throughout California, including Redondo Beach, Los Angeles, Palos Verdes and Manhattan Beach CA.

Can Police Take Blood From an Unconscious DUI Suspect Without a Warrant?

Yes, according to the United States Supreme Court.  In the case of Mitchell vs. Wisconsin the Justices resolved a long standing issue as to whether law enforcement could perform a warrantless blood draw on a DUI suspect if they are unconscious and unable to give valid consent. 

 The facts of the case are not that uncommon:  Police received a report that Mitchell, who was under the influence of alcohol, climbed into a car and drove away. When found, Mitchell was wandering near a lake, stumbling and slurring his words. A preliminary field breath test revealed a BAC of 0.24% and Mitchell was arrested. On the way to the police station for a more reliable breath test, he lost consciousness and was taken to the hospital instead. His blood was drawn and reflected a BAC of 0.22%. After he was charged with drunk driving offenses, Mitchell moved to suppress the blood test results as obtained in violation of the Fourth Amendment. The State relied on its implied consent law to justify the blood draw. The motion was denied and Mitchell's subsequent convictions were upheld in state court. The U.S. Supreme Court granted certiorari. Held: Vacated and remanded. A blood draw is a search of the person. The Fourth Amendment guards against unreasonable searches and generally requires that a warrant first be obtained. However, the exigent circumstances exception to the warrant requirement applies when the compelling need for official action renders a warrantless search reasonable. In drunk driving cases an exigency exists when (1) BAC evidence is dissipating and (2) some other factor creates pressing health, safety, or law enforcement needs which take priority over a warrant application. Both conditions are met when a drunk-driving suspect is unconscious because this creates a medical emergency requiring treatment and will usually involve the drawing of blood anyway. This could delay the application for a warrant which might distort the evidentiary value of a blood draw. There may be an unusual case where a defendant can show that his blood would not have been drawn if police had not been seeking BAC data, and that police could not have reasonably judged that a warrant application would interfere with other pressing duties. Because Mitchell did not have a chance to attempt to make this showing, the case was remanded for this purpose. ( Courtesy of CCAP).

This case will set the tone for state Courts in deciding whether implied consent laws allow for blood draws without a warrant under their individual state statutes.  In California the Supreme Court is currently deciding that issue in the Arredondo Case.