The DMV Administrative Per Se Process
The DMV must receive your request for a hearing with 10 days of your arrest if you want to challenge the suspension of your license. Call or fax your request to your local DMV Driver Safety Office. Do not use the mail as it may be delayed and if the DMV receives it after 10 days have passed you will have lost your right to a hearing. Please be aware that many times DMV employees will attempt to talk people out of requesting a hearing. Don’t let them talk you out of it, as it is always in your best interest to request a hearing and there is no penalty to do so.
If you are arrested for suspicion of driving under the influence you are required by law to submit to a chemical test, either breath or blood (urine is only an option if the arresting officer believes you are under the influence of drugs) to determine the alcohol content of your blood. If you refuse to submit to a chemical test your license will be suspended for one year or revoked for two years if you have a prior offense within the last 10 years. In either case, if you refuse to take the chemical test you will be unable to get a restricted license that would allow you to drive to and from work.
Once arrested for suspicion of driving under the influence the arresting officer will take your license and give you a 30-day temporary license and notice of suspension. If you do not request a hearing then your license will automatically suspend on the 31st day following the arrest. If you do request a hearing (or an attorney requests one for you) then the DMV will send you a new temporary license that you can use until the results of the hearing are received.
Sometimes the arresting officer makes mistakes on the paperwork that he/she submits to the DMV. In many of those cases the DMV presumes that you have not received adequate notice of the suspension and they mail you a new notice of suspension that provides a new opportunity to request a hearing if you missed the initial 10 day window. If you have already requested a hearing you can ignore this notice.
If the hearing is lost, or if a hearing is not requested, the suspension on a first offence is for four months. However you will be eligible to get a restricted license that allows you to drive to, from, and during the course of employment. The restriction also allows you to drive to and from a DUI program that you are required to take in order to get the restricted license. If you opt for the restriction the restriction will last for five months. If you have a prior offence within 10 years, then the suspension will be for one year.
At the Administrative Per Se (APS) hearing, which can either be conducted over the phone or in person, the DMV Hearing Officer presents the evidence and decides the case. So essentially, the person who is prosecuting the case also decides the case. As you can imagine, this stacks the deck against you being able to win. Many cases are winnable, however, if you have an experienced attorney who knows what flaws in the documents to look for. Most cases that are won at the DMV are won on technicalities as many times the arresting officer will make mistakes on the paperwork that is submitted to the DMV.
All of the hearings are recorded, and if you lose you do have the right to appeal. There are two ways to appeal an adverse decision. One is called an “Administrative Review”, where the DMV in Sacramento reviews the Hearing Officer’s decision and they generally rubber-stamp whatever the Hearing Officer has decided. The other option is to file a Writ of Mandamus in the superior court, essentially suing the DMV for failure to follow the law. The first is generally a waste of time and money, while the second can be expensive, albeit successful.
The issues at the APS hearing depend on whether the individual took a chemical test or not.
If a chemical test was taken the issues are:
1. Did the officer have reasonable cause to believe that you were driving a motor vehicle in violation of Vehicle Code Sections 23152 or 23153?
2. Were you lawfully arrested?
3. At the time you were driving did you have .08% or more, by weight, of alcohol in your blood?
If a chemical test was not completed or refused two additional issues are addressed:
1. Were you told that your driving privilege would be suspended for one year or revoked for two years if you refused to submit to or failed to complete a chemical test?
2. Did you refuse to submit to or fail to complete a chemical test after being requested to do so by a peace officer?
Evidence in DUI Cases
Each case is different, but fact patterns in DUI cases are generally very similar. There is the fact of driving, the observations of the arresting officer, statements made by the arrestee, performance of field sobriety tests, and finally the chemical test (or lack thereof) showing the individual’s Blood Alcohol Content (BAC). The most damaging piece of evidence is usually the chemical test, followed by the driving pattern and then the other evidence.
The fact that a person was driving is the fundamental element that must be proven in a DUI case. It makes sense, as a person can’t be “driving under the influence” if they were not “driving”. In most cases, it is a person’s driving behavior that first draws the attention of the arresting officer. There are a number of driving patterns recognized by the National Highway Traffic Safety Administration (NHTSA). Weaving is the one that most people think of but officers are trained to expect a DUI driver in any stop they make, especially at night.
If the individual is in an accident or otherwise not actually observed driving by the police then the officer must prove the person was driving by circumstantial evidence. This typically is done by showing that the hood is warm to the touch, the individual is the registered owner of the vehicle or the keys are in their possession, the driver’s seat is adjusted to accommodate them and other such clues. If no driving is observed, a knowledgeable DUI attorney can many times get the case dismissed or charges reduced based on this fact.
After driving, the next evidence is the arresting officer’s personal observations. In a typical case the officer will indicate that he/she smelled the odor of an alcoholic beverage, observed that the individual’s face was flushed, the person had bloodshot/watery eyes, slurred speech, difficulty finding their registration or drivers license, and that the individual had an unsteady gait. At this point, the officer has most likely made the decision to arrest the individual.
However, before the actual arrest, the officer will ask what are known as pre-field sobriety test questions. Supposedly this interview is to gather more information so the officer will make a determination on whether they will arrest the individual, but in reality it is to get incriminating evidence to make it easier to convict the individual. The officers try to get around the Miranda warnings by claiming that the individual is not formally under arrest. The questions usually involve topics such as how much the person drank and when, when did they last sleep, eat, etc., and are there any mechanical problems with the vehicle. Anyone detained for suspicion of driving under the influence should exercise their right to remain silent and respectfully decline to answer any questions beyond identifying information (name, date of birth, drivers license number, etc.).
The field sobriety tests (FSTs) are designed to fail. Uneven surfaces, passing traffic, and bad weather all serve as distractions making it difficult to perform the tests as instructed. The primary purpose of the FSTs are to provide more evidence against the individual to be used against them in court. There are over 20 field sobriety tests that are commonly used, but only three of them have been recognized by NHTSA as “standardized” and thus useful to determining a person’s sobriety. These are the “walk the line”, “one-leg stand”, and the nystagmus test. The nystagmus test measures the degree of involuntary eye movement when tracking an object from side to side. Most officers do not tell people that these tests are voluntary and not required. Anyone detained for suspicion of driving under the influence should politely decline to perform these tests.
The final evidence gathered against a person is typically the most harmful, that being the chemical test to show the person’s BAC. California has a “per se” law, meaning that if a person’s BAC is .08% or greater it is presumptively illegal for them to drive, and a high BAC is usually enough to convince a judge or jury that the person was, in fact, “under the influence”. The tests include the preliminary alcohol screen (PAS) test, which, while not supposed to be evidentiary is usually allowed into evidence by the judge, the breath test, and the blood test. Urine tests were discontinued for BAC in 2000, but are still used if the officer suspects that the individual is under the influence of drugs. Under California law a person arrested for suspicion of driving under the influence must submit to a chemical test or their license will be automatically suspended for one year on a first offence or revoked for three years if there are one or more prior offences. However, only people under 21 years of age are required to take the PAS test.
What to do when contacted by police
Remember at all times that you have the right to remain silent. Use it! If you are pulled over, or contacted following an accident, the police typically will ask you questions such as: “Have you been drinking?”, “How much have you had to drink?” etc. You do not have to answer any of their questions, and any answer you give can, and will, be used against you in court. The best course is to politely decline to answer any questions.
If an officer suspects you have been drinking they will ask you to perform “field sobriety tests”. It is important to note that you are not required by law to perform these tests. As the purpose of these tests is to provide evidence against you should a case be filed you should, again politely, decline to perform any tests, including the “preliminary alcohol screening” or PAS test. Police are required by law to tell you that the PAS test is voluntary, but many times this is overlooked or ignored. Regardless, you are not required to submit to this test.
IMPORTANT: If an officer believes you are driving under the influence of alcohol or drugs you are required to submit to a chemical test of either your breath or your blood. If you refuse to complete a test of your breath or blood your license will automatically be suspended or revoked for one to three years. It is very important to submit to the test because even if you win your case in court your license will still be suspended by the DMV. It is also important to note that you do not have the right to speak to an attorney before taking the chemical test.
Both the breath test and blood test have allowable margins of error. However, the result of a breath test is more easily challenged by a knowledgeable attorney who understands the machines and their flaws.
Alternatives to Jail
Also knows as “house arrest” this involves wearing a bracelet that electronically monitors where the wearer is at all times. The individual is allowed to go to work, church, school, etc. but otherwise must stay at home. This is sometimes combined with a SCRAM (Secure Continuous Remote Alcohol Monitor) which ensures that the individual is not drinking. Both require a set up and daily fee to participate.
This is the most common alternative to jail and it involves working at a site determined by the Probation Department. Typically it involves picking up trash on a roadway or other public place like the Zoo. Usually this is done on the weekends, but if a large number of days are ordered, three or more days per week may be required depending on the County.
This option allows individuals to go to work during the day and return to the jail for the night. Weekends are spent in jail.
Many times a DUI arrest is a symptom of a larger problem. For those individuals who need rehabilitation a Residential (where you are not allowed to leave) drug or alcohol program may be beneficial. A skilled defense attorney can in most instances get the judge to give credit for attending a program and avoid jail altogether.
Field Sobriety Tests
Most people don’t know, and are never told by the arresting officer, that “field sobriety tests” are not mandatory. The officer will use the results of the tests to justify the arrest, and the results will be used against the individual both in court and at the DMV administrative hearing. While presumptively “objective”, the tests are actually very subjective and are, in fact, designed for failure. Remember that it is your right to politely decline to perform any field sobriety tests either on the street or at the station. Remember, however, that you must submit to a chemical test of either your breath or blood.
Standardized (accepted by the scientific community) Field Sobriety Tests include:
• Nystagmus (Horizontal and Vertical Gaze): The officer will position an object, usually a finger or pen approximately on foot from the individuals face and move it side to side while observing the individual’s eyes for any involuntary jerking or trembling. The jerking or trembling is supposed to indicate whether the individual is under the influence of alcohol. Nystagmus may be naturally found in a percentage of the population and may also be indicative of certain medical disorders and thus can present a “false-positive”.
• Walk and Turn: The officer will have the individual walk heel-to-toe along a line, usually nine to twelve steps, turn, and walk heel-to-toe back. The officer is looking to see if the individual can follow instructions, maintain their balance, and stay on the line.
• Stand on One Leg: The individual is instructed to stand with feet together and raise one foot six inches off the ground and count, out loud, until the officer tells them to stop. The officer is observing whether the individual raises their foot the proper distance from the ground and whether they can maintain their balance.
Other, Non-Standardized Field Sobriety Tests Include:
• Rhomberg Balance Test (also known as Modified Position of Attention): The individual is instructed to stand with their feet together, hands at their side, and to tilt their head back and estimate 30 seconds without counting aloud. The officer is testing the individual’s internal clock and observing them to see if they sway, have eyelid tremors, or open their eyes.
• Touch Finger to Nose: The individual is to stand with their arms at their side and touch their index finger to their nose, alternatively as the officer says “left” or “right” in a random pattern. The officer is testing whether the individual uses the correct arm, and whether they touch the tip of the finger to the nose, or use the pad of the finger.
• Finger Counting: Counting one through four thumb to fingertips and reversing.
• Hand Pat: Counting one and two while clapping hands over and under, speeding up as directed by the officer.
Finally, there is the Preliminary Alcohol Screen (PAS) Test. This is a portable, hand held, breath testing devise used to detect the presence of alcohol. This is supposed to be a non-evidentiary test, but the results are commonly allowed in by the court to show blood alcohol content as evidence of guilt. The officer is supposed to tell the individual that the PAS test is voluntary, but many officers conveniently forget this fact.
A skilled attorney who has studied the field sobriety tests can make a big difference in the outcome of a case. Many times the arresting officer has forgotten how to administer the test, or does not follow the NHTSA (National Highway Traffic Safety Administration) guidelines properly. If it can be shown that the arresting officer mishandled the field sobriety tests this can greatly weaken the prosecution’s case.
Special Issues for Women
The DUI investigation system has been developed with men in mind, making it particularly unfair for women. Even today, statistics show that the vast majority of subjects arrested are males (in a 12-county sample out of 22,000 arrests only 3,000 were women). In 1975 only 8% of those arrested were female. Statistics show a near doubling of arrests to 15% since 1975. The blood alcohol machines are, to a certain extent, set with a man’s physiology in mind, making for less accurate results for woman.
A woman’s body composition differs markedly from a man’s, which is highly relevant when it comes to alcohol absorption, distribution and elimination. It is thought that women more readily show the effects of alcohol because their bodies have more fat tissue and less water than a man. The fat tissue is not easily penetrated by alcohol, whereas consumed alcohol diffuses uniformly into all of the body’s water. When you consider a woman’s lower total water content (and higher fat content) a given amount of alcohol becomes more concentrated in a woman’s body than in a man’s. Thus there are studies that have found women become under the influence of alcohol after drinking 20% to 30% less alcohol then men.
Also of interest is that the breath machine has been designed for an average man’s lung capacity so that the breath test reads at higher levels for a woman. That same breath machine is set to expect exhaled breath at 34 degrees Celsius, with every degree above resulting in a false high. As a woman’s body temperature is commonly elevated during the menstrual cycle and menopause, false highs to some degree are a concern. Also, officers are not trained to assess women, making it far more difficult to judge their intoxication level, regardless of experience.
Recently, women have been found to lack an enzyme that is thought to provide a protective barrier in the stomach by breaking down alcohol before it circulates in the body. This may cause a larger proportion of the ingested alcohol to reach the blood system prior to being converted, by enzymes, to acetate which is readily eliminated into carbon dioxide and water.
Out of State Defendants
Persons who reside outside the state of California who are arrested for suspicion of driving under the influence face different issues that those who reside in-state. My office regularly deals with such individuals, and the case is typically handled via phone, fax, and email. In misdemeanor cases the defendant’s presence is rarely required.
Probation can be served anywhere (even out of the country), as well as payment of the fine. In addition, most states have some sort of DUI program (there are even on-line programs) that will satisfy the court. The problem lies with the California DMV which only accepts the in-state programs. If your home state is a member if the Interstate Driver’s License Compact they will enforce the full length of the suspension imposed by the California DMV, typically 6 months on a first offence and two years on a second (or greater) offence. In addition, your home state may impose additional penalties or requirements (For example, California residents who get a DUI in another state are required to take a California DUI program in addition to whatever the other state court orders).
Finally, if there is some sort of jail (or work program) sentence imposed, many jurisdictions will not allow an individual to serve time based on an out of state court order. As such, it may be necessary for the individual to return to California to serve their sentence. It is important to have a skilled and knowledgeable attorney on your side to avoid this additional hardship. Many times the court can be convinced to accept Community Service hour in lieu of jail or work program.