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Ways to win at an San Diego APS DMV Hearing

by | Nov 19, 2013 | DUI Cases |

When Someone is arrested of a DUI in San Diego the police officer will take away someone’s drivers license and give them a pink paper that is a temporary license. This license is good for 30 days. At that point, the person has 10 days to contact the San Diego DMV and request a hearing to challenge whether or not the license will be suspended. If you do not call the San Diego DMV and set the hearing in 10 days right to challenge the suspension will be forfeited. If you do call within 10 days, your license remains valid until the decision of after the hearing (which can be months).

So, the question is asked…how can someone win an APS hearing. Here are some of the ways:

Lets start with what is at issue at the hearing

The scope of a DUI DMV hearing is quite broad.  There are a handful of issues that the hearing officer will consider:

  1. Did the arresting officer have probable cause to believe you were driving under the influence,
  2. did the officer place you under a lawful arrest, and
  3. were you driving with a blood alcohol concentration (BAC) of 0.08% or greater?

    ∗It must be noted that driving with a BAC of 0.08% or greater is a separate offense from driving under the influence.  The first is prohibited under Vehicle Code 23152b whereas the latter is the more general offense prohibited under Vehicle Code 23152a.

If you allegedly refused to submit to a chemical DUI blood or breath test, the last question becomes a moot point.  Instead, the final questions to answer are

  1. Did the officer tell you that if you refused to submit to a blood or breath test that your driving privilege would be suspended for one year or revoked for two or three years, and
  2. did you, in fact, willfully refuse to submit to a chemical blood or breath test after the officer asked you to provide a sample?

What are some ways to win a San Diego APS>DMV hearing?

1. You weren’t driving

If the officer didn’t personally observe you driving, and

a) the DMV doesn’t subpoena any witnesses who did, or

b) there is no other evidence that could reasonably establish you were driving,

2. You were arrested at an illegal San Diego DUI / driver’s license checkpoint

Similarly, if you are arrested at a San Diego DUI checkpoint that doesn’t conform to the strict legal requirements set forth under San Diego DUI law, the arrest is illegal.  This means that even if you were technically driving under the influence, the unlawful arrest would override that fact…and you should win the hearing.

3. The officer didn’t have probable cause to pull you over

If the officer didn’t have probable cause to detain you for driving under the influence, the DMV must set aside the action.   Your San Diego DUI defense lawyer could argue any number of reasons why the officer lacked probable cause to arrest you.  Perhaps you were

  • obeying all traffic laws and were truly only pulled over because you were the victim of racial profiling or other prohibited reason
  • involved in an accident but didn’t begin drinking until after you returned home (which is when the officers came to interview you).

There are almost an infinite number of ways to argue that the officer lacked probable cause at the time they stopped you.

4. The officer didn’t conduct a proper 15-minute observation period

Title 17 of the California Code of Regulations governs how breath and blood tests must be administered, collected, stored and analyzed.  If the officer doesn’t strictly adhere to Title 17 regulations, the arrest is subject to scrutiny.

One of these regulations is that an officer must observe the suspect for at least 15 minutes immediately prior to conducting a breath test.  This is to ensure that the suspect doesn’t vomit, eat, drink, smoke, regurgitate or do anything else that may compromise the results of the test.

The failure to conduct this observation jeopardizes the results and may mean that the arrestee’s blood alcohol concentration “BAC” wasn’t a 0.08% or above at the time of driving…a fact which could result in a “win” at the DMV DUI hearing.

5. The breath testing instrument wasn’t calibrated or wasn’t working

Title 17 also regulates the maintenance and operation of breath testing instruments.  Current law provides that these instruments must undergo an accuracy check every ten days or 150 “blows”.  If you provided your samples on instruments that failed to adhere to these standards, your BAC may be inaccurate.

Similarly, if the instrument was malfunctioning, that, too, could produce false high breath test results.

6. There were physiological explanations for your false high “BAC” level

There are a variety of reasons why you could produce a BAC of 0.08% or greater that are unrelated to the amount of alcohol that you consumed.

  • High-protein, low carb diets can trigger false high BAC results,
  • Medical defenses like GERD, acid reflux, and heartburn can produce inaccurately high BAC results and
  • residual “ mouth alcohol” can act as a San Diego DUI Defense may have caused a falsely high reading.

If you suffered from any of these conditions at the time you provided your breath sample, you may not have truly been driving with a BAC of 0.08% or greater, despite the results of your breath test.

7. The officer didn’t properly advise you of the consequences for refusing to submit to a chemical blood or breath test

If you refuse to submit to a DUI chemical blood or breath test, the officer must advise you that your driver’s license will automatically be suspended for one year.  This admonition is in writing and the officer is supposed to read it verbatim (that is, word for word).  If he/she fails to do this, you could win your DMV hearing.

Because many officers make numerous drunk driving arrests, oftentimes, they simply “go through the motions”.  If the officer

    • forgets to give this admonition,
    • deliberately chooses not to give it, or
    • recites his/her own interpretation of the admonition instead of reading it…and confuses you to the point that you don’t know what is expected of you…or
  • tells you that your refusal could result in a mandatory suspension, instead of telling you that your refusal will result in a suspension,

the action against your license could be set aside.

8. You didn’t refuse to submit to a chemical test

Perhaps you didn’t actually refuse to submit to a chemical test.  Maybe you tried to “blow” but your breath samples weren’t sufficient.  Maybe you weren’t offered a blood draw as an alternative.  Maybe you were simply asking questions about the procedure and the officer misinterpreted your inquiries as hostility and assumed you were refusing.

If you didn’t refuse, this allegation should be dismissed.  If there’s no refusal…and no BAC results…the DMV hearing officer can’t sustain the action.

9. There were fatal flaws with the officer’s paperwork

When an officer makes a DUI arrest, they must fill out certain mandatory reports and paperwork.  If the officer forgets to sign the paperwork, writes the wrong dates on the documents, fails to report the BAC results, or records the wrong BAC results and cannot independently recall the facts of your arrest to correct these mistakes, these errors could prove fatal to the case against you.

10. You were arrested for violating the “under 21 zero tolerance law” and the officer didn’t lay the proper foundation for your BAC results

Drivers who are under 21 are forbidden from driving with any measurable amount of alcohol in their bodies.  This is known as California’s “zero tolerance” law.  Most of the time, officers administer preliminary alcohol screening “PAS” tests to these drivers.

PAS devices are not regulated by Title 17.  This means that if an officer is going to testify about the BAC level in an under 21 cases case, they would need to lay the proper foundation as to why the PAS is a reliable breath testing instrument.

In other words, the officer must supply the proof as to why the PAS results should be used as evidence against the driver.  Despite the fact that the officer may be able to do this, many times he/she will not know how to do this.

Bottom line, an experienced San Diego DUI attorney can help you with your case and can utilize the San Diego APS DMV hearing to aid your defense. These were just a few ways one can dissect the government’s case.

Hire a Proactive, affordable, and quality defense when you are facing San Diego DUI charges. Whether you have been charged of a San Diego DUI, Poway DUI, La Mesa DUI, Santee DUI, Mission Valley DUI, Clairemont DUI, Point Loma DUI, La Jolla DUI, Carmel Valley DUI, Mira Mesa DUI, Pacific Beach DUI, Del Mar DUI, Carmel Valley DUI, Encinitas DUI, Oceanside DUI, Ocean Beach DUI, Escondido DUI, Vista DUI, San Marcos DUI, Carlsbad DUI, El Cajon DUI it is vital you need to hire an attorney who knows how to defend your rights and can determine if the government can prove their case. Contact the Law Office of Mark Deniz now for a free case evaluation.

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