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.

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.

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.

Dealing With An Unfavorable DMV Decision

The decision after a DMV hearing following a DUI arrest can be either a set aside or an uphold of the suspension.  When the decision is unfavorable to the driver the next step can be either to appeal the finding or move on.  For first offenders who took a test the suspension period of four months typically does not justify a decision to appeal the hearing officer's decision.  The driver can usually get a restricted license after waiting 30 days.  Foe second offenders an appeal may be more tenable given the one year
 re-issue date.  In either event the decision must be one that takes into account the costs and benefits of the entire situation.  The alternative to a full scale appeal can be something called a Departmental Review, more information about this approach will be discussed in a future post.

How a Person's Core Body Temperature Can Skew Breath Test Results

Breath testing in DUI cases relies on the presumption that every subject has a "normal" body temperature.  But what if a subject has a fever? One study (Fox & Hayward, 1989) did reveal problems with DUI breath tests for those with higher than normal body temperature levels.  For example, when the core temp was elevated one degree Celsius, the corresponding breath test for alcohol increased by nearly 9 percent. This means that if a person had an elevated body temp and was stopped for drunk driving, his breath test would falsely inflate his true blood alcohol level by almost 10%.  For a .10 level, this would drop him to a .09 and if he blew a .08, his true BAC would actually be .07.

 For more information on this issue, contact DUI Attorney Matthew Ruff who practices in the state of California.

A Bakersfield Speeding Ticket Attorney Explains Trials by Written Declaration

In California, as in many states, a defendant may elect to have a trial by written declaration on any Vehicle Code infraction or speeding ticket. If the clerk  receives from the defendant a written request for a trial by written declaration on or before the appearance date indicated on the notice to appear, the clerk must, within 15 calendar days of receiving the request,extend the appearance date 25 calendar days, and must give or mail the defendant notice of the extended due date on a Request for Trial by Written Declaration with a copy of the Instructions to Defendant and any other required forms. The defendant must file the Request for Trial by Written Declaration with the clerk on or before the appearance date indicated on the notice to appear (or any extended appearance date). This form must be filed in addition to the defendant’s written request for a trial by written declaration, unless that request was made on this form. A defendant who makes this election must submit bail in the amount established in the Uniform Traffic Bail and Penalty Schedule under Veh C§40310 at the time of submitting the declaration.  If the defendant is found not guilty or the charges are otherwise dismissed, the amount of the bail mustbe promptly refunded to the defendant.

On receiving the defendant’s Request for Trial by Written Declaration and bail by the due date, the clerk must deliver or mail to the arresting officer’s agency a Notice and Instructions to Arresting Officer and Officer’s Declaration, with a copy of the notice to appear and a specified return date for receiving the officer’s declaration. On receipt of the officer’s declaration or the close of the return date, the clerk must submit the case file to the court for decision with all declarations and other evidence received.  According to one Bakersfield Speeding Ticket Attorney, testimony and other relevant evidence may be introduced in the form of the notice to appear, a business record or receipt, and the sworn declarations of the arresting officer and of the defendant. After the court decides the case and returns the file and decision, the clerk must immediately mail the Decision and Notice of Decision to the defendant and arresting agency. The defendant may request a trial de novo by filing a Request for New Trial Form within 20 calendar days after the date on which the decision was mailed. The Court clerk must set a trial date within 45 calendar days of receipt of the defendant’s request and deliver or mail to the defendant and to the arresting officer’s agency the Order and Notice to the violator.

The case is closed if the defendant fails to make a timely request for a trial de novo. Although the rules state that a new trial must be set within 45 days of the receipt of the request, the remedy for failure to set within 45 days is not automatic dismissal. For example in one case, a trial was set 57 days after receipt of notice. The court may deny a trial by written declaration to a defendant who does not file a Request for Trial by Written Declaration or deposit bail with the clerk within the specified time limits.  The Judge is not limited to imposing a monetary penalty in the amount of the bail the defendant has deposited with the clerk, unless this amount is the maximum and the only lawful penalty. A person who fails to appear as provided by law may be deemed to have elected to have a trial by written declaration on any alleged Vehicle Code infraction. Relevant evidence may be introduced in the form of a notice to appear, a business record or receipt, a sworn declaration of the arresting officer, or a written statement or letter signed by the defendant. 

Bruce Blythe is a Bakersfield Speeding Ticket Lawyer who practices throughout Kern County and beyond for all criminal, DUI and traffic cases.

Hematocrit Defense in DUI Cases

 Hematocrit represents the fraction of whole blood composed of red blood cells and is correlated with the aqueous content of the blood.  The higher the hematocrit, the lower the concentration of water in the blood and vice versa, according to California DUI Attorney Matthew Ruff.  How does this issue play into a DUI case you may ask?  Put simply, the higher a hematocrit level, the higher a person's blood alcohol concentration.  With breath tests, the normal variation in the hematocrits of test subjects "can produce errors in ...results in the 10-14% range", according to some scientific studies.  When facing a DUI charge, it may be useful to have a test done to determine if this may be an issue. The hematocrit issue can vary the amount of alcohol present in the blood and not all humans are the same.  The breath machines do not factor in this variability.