Articles Posted in Driver License Suspension/Denial/Revocation

It is simply a fact that many, if not most, drivers lose at their Administrative Per Se (APS) Hearing. The APS hearing is an administrative hearing and unlike criminal hearings, the driver is not afforded the same due process rights a guaranteed by the Constitution in criminal trials. The legal standards are not as strict in an administrative hearing and the DMV officer who makes the decision about the suspension of the driver’s license to drive sits as prosecutor and judge. While this doesn’t sound very “Constitutional,” the appellate courts have long held that certain Constitutional rights do not apply to administrative hearings.

But you do have the right to challenge the administrative court’s decision. The procedure by which the decision can be challenged is by petitioning a higher court for a Writ of Mandate, also called a Writ of Mandamus. This writ is a civil procedure by which you can petition a court of law to review the administrative court’s decision. If the higher court determines that the administrative decision did not proceed in accordance with the law or that the administrative decision was not supported by the evidence, the higher court can order the administrative court to rehear the matter in accordance with the higher court’s findings or even order the administrative court to reverse its decision.

When challenging a DMV APS hearing finding, the petition for Writ of Mandate is filed with the superior court. This is a civil matter, not criminal.

california supreme court holds that circumstantial evidence of intoxication may be considered in dui hearings

A driver was pulled over in Orange County by the CHP when the officer observed her car swerving erratically. Upon contacting the driver, the officer observed indications that she had been drinking alcohol. The officer performed various field sobriety tests on the driver, the result of which further indicated to the officer that the driver was under the influence of alcohol. The driver was placed under arrest and it was determined by a breath test that she had a blood alcohol level near the threshold legal limit of .08%. A later blood draw indicated a blood alcohol level slightly over the limit at .096%.

She exercised her option to have a DMV Administrative Per Se Hearing to challenge the automatic suspension of her driver license. At the hearing, an expert testified on her behalf. According to the expert, the blood alcohol tests suggested that here blood alcohol level was rising and that at the time of the stop, her blood alcohol level was not at the legal limit of .08%. The expert’s testimony is technical and not relevant for purposes here. Suffice it to say that the gist of the driver’s argument was that she introduced evidence of a fact that rebutted the presumption that she was driving under the influence but the administrative hearing officer and the trial court discounted that evidence (the expert’s testimony) in part by relying on the reports made by the CHP officers who stopped her. The Supreme Court was ultimately tasked with deciding whether the trial court erred by considering the circumstantial evidence established by the officers’ reports of their observations. On April 6, 2015, the Supreme Court issued its ruling where it held that the trial court did not err.

Continue reading →

In California, when a driver is arrested for driving under the influence, they are given a temporary, 30-day license from the Department of Motor Vehicles. On that notice, it states that the license is good for only thirty days and that after that time, the driver’s license will be suspended unless an Administrative Per Se hearing is requested. This request must be made within 10 days of the date of the arrest. The following is a list of situations for which the DMV may suspend your license:

  1. Driving with a blood alcohol level of .08% or higher;
  2. Refusing to submit to a chemical test or, if under 21 years of age, refusing to submit to a PAS test;

Anyone who is arrested for driving under the influence faces the possibility that his or her driving privilege will be suspended by the Department of Motor Vehicles. So, not only will you have to defend your case in Court, you will also have to defend yourself to the Department of Motor Vehicle. There are two separate hearings and, one has nothing to do with the other. The Department of Motor Vehicles hearing is an Administrative hearing, not a criminal court proceeding.

The Department of Motor Vehicles’ role is not to determine whether or not you have committed a crime, only to determine whether you were driving under the influence of alcohol or drugs, a violation of the Vehicle Code. This subjects you to suspension or revocation of your driving privilege.

When determining whether or not your driving privilege will be revoked or suspended, the DMV focuses on the following only:

California Vehicle Code Section 14601 makes it illegal to drive while your driving privilege is suspended or revoked. However, the reason for the suspension or revocation plays a roll in the sentencing should you be convicted. As an Orange County DUI defense attorney, practicing criminal defense law in Orange County, CA for 20 years, one commonality with these types of offenses is that clients don’t realize the seriousness of driving on a suspended license and are surprised at how harsh the Courts can be.

According to ]California Vehicle Code Section 14601.2(a) which is the code section that deals with driving on a suspended license where the license was suspended due to a conviction for DUI, the minimum punishment is 10 days in County Jail for a first offense and a minimum 30 days in County Jail for conviction of a second offense. California law also requires the installation of a California Ignition Interlock device also known as “IID”. This is a device installed into your car, which prevents the operation of the motor vehicle, until and unless an alcohol-free breath test is passed.

Here in Southern California, the inability to drive can be incredibly crippling for a person. There is of course the bus, taxis, and driving companies. However, trying to get to work or an appointment on time using the bus system is risky. Taxis and driving companies can be very expensive if you need to utilize these services for any length of time. A new alternative however, is becoming more and more prevalent. It is the old fashion ridesharing with a new twist. Ridesharing web sites are popping up all over the United States. The sites vary in the process of matching drivers with passengers. Security and how payment is calculated and made vary from site to site. Some sites allow it’s participants to agree on the cost between themselves, some sites calculate and come up with the amount based on the miles travelled and the profit-making sites take a percentage of the fee charged to the riders.

A company by the name of eRideShare, which was started in 1999, is currently testing a mobile app for the iphone and android phones, which would make it easy for a person to quickly find websites for ridesharing in their area. Another company, Carpooling.com is slowly making its way to Southern California and may be a good source for people whose license has been suspended or revoked. Long distance commuters are currently using sites like Zimride.com, Ridejoy.com, Avego.com, Nuride.com, Rideshare.com and eRideShare.com.

Driving on a suspended license is a misdemeanor, and as mentioned above, can have serious consequences. Consulting with an experienced criminal defense lawyer, before pleading guilty to this type of offense, could make the difference between doing jail time and alternative sentencing.

Continue reading →

A man was found drunk and unresponsive in his car in the Las Floras area of Orange County. The car was parked and the engine turned off.

California law is very strict when it comes to driving under the influence. To prove that a person is guilty of DUI in Orange County, and California in general, the prosecution must prove that the defendant drove a vehicle and that he/she was under the influence of alcohol or drugs when he/she drove.

The law makes it pretty clear what constitutes “under the influence”, but what about “driving” under the influence. The law defines driver and driving as follows: “A driver is a person who drives or is in actual physical control of a vehicle; and “A person drives a vehicle when he or she intentionally causes it to move by exercising actual physical control over it. The person must cause the vehicle to move, but the movement may be slight.”

In the situation here, where the man is found slumped over and unresponsive in his car, will or can he be found guilty of driving under the influence as it applies to Vehicle Code Section 23152(a) and 23152(b). In the well established case of Mercer v. Department of Motor Vehicles the Supreme Court upheld “decades of case law” holding that the word “drive” when used in a drunk driving statute, requires evidence of a defendant’s volitional movement of a vehicle. They further go on to say that the everyday usage of the phrase “to drive a vehicle,” is understood to mean movement of a vehicle.

However, there are exceptions. If an intoxicated person is stopped near or at an accident scene, or when a vehicle is found protruding into the street. Further, if the driver is seen driving by witnesses prior to being stopped. In these situations, the officer has reasonable cause to believe that the occupant of the stopped car was driving while intoxicated and can then be arrested.

In the Mercer case, the Superior court issued a writ of mandate directing the Department of Motor Vehicles to set aside its order revoking Mercer’s driving privilege. The Superior Court held that Mercer had not been lawfully arrested because Mercer was legally parked next to a curb and the arresting officer had not observed volitional movement of the vehicle. Several Courts have held that observed volitional movement of a vehicle is required before a person’s driving privilege may be suspended or revolked.

In the Mercer case, the DMV appealed the Superior Court’s order and the Court of Appeal reversed and directed the Superior Court to reinstate the revocation order. The Supreme Court then granted review and upheld the Superior Court’s order for Writ of Mandate, directing the DMV to once again set aside it’s order revoking Mercer’s driving privilege.

Anyone who has been arrested for driving under the influence should seek immediate assistance from an experienced DUI Defense Attorney who also has experience in dealing with the Department of Motor Vehicles.

Police Officers must follow procedures when detaining, questioning and arresting someone on suspicion of driving under the influence. It is the job of an aggressive criminal defense attorney to look for mistakes or misconduct when it comes to the actions of a police officer in making an arrest.

Continue reading →