We remain open and steadfast in our commitment to helping our clients during these difficult days.

Proven Approach With Results Forged Through Experience

Image of attorney Mark L. Deniz

Circumstantial Evidence Can Be Used to Prove DUI: Ruling

On Behalf of | Apr 9, 2015 | Firm News |

Observations can be used to show a motorist had a blood-alcohol level above the legal limit. 

Let that sink in for a second…..really?  What if someone is stopped at 3am for whatever reason I would imagine most would have red eyes.  

San Diego APS hearings are already a tough hearing due to the standard being so low. It is something to think the ruling made their job easier. There was some directions from the court that can be used to help defend someone. San Diego DUI cases are often closer than most realize. The APS hearing gives the chance to really examine the facts to see the case is not as strong as it appears. It will be interesting to see how these new rulings can be used and navigated through.


In a ruling originating out of Orange County, the state Supreme Court today ruled that circumstantial evidence such as an officer’s observations can be used to show a motorist had a blood-alcohol level above the legal limit.

The case began with Ashley Jourdan Coffey suing the state Department of Motor Vehicles, which suspended her driving privileges after she pleaded guilty to a ”wet reckless” charge.

Coffey was arrested Nov. 13, 2011, about 1:30 a.m., after an officer spotted her swerving while southbound on the Costa Mesa (55) Freeway. The officer concluded Coffey was drunk based on her red eyes, a strong odor of alcohol and her difficulty with field sobriety tests, according to the high court’s ruling.

Coffey ”denied having consumed any alcoholic beverages, offering the rather implausible story that she had just turned 21 years old, had been in a bar, but had not herself consumed any alcoholic beverages,” the justices’ ruling says.

A driver wanted for DUI spins out at the end of a pursuit Monday March 30, 2015 on the 101 Freeway in the San Fernando Valley. (Published Monday, Mar 30, 2015)

Coffey also had difficulty with breath tests, requiring several attempts by officers to get a sample.

About an hour after she was pulled over, her blood-alcohol level was measured at .08 percent. Another test three minutes later showed her level had risen to .09 percent, above the legal limit. Blood tests done later showed a level of .095 percent. Coffey later accepted a plea deal to admit misdemeanor reckless driving and then requested a hearing before the DMV to challenge the suspension of her license.

Coffey hired an expert to testify that her blood-alcohol level was below the legal limit when she was arrested, and that the tests proved it was rising while she was in custody.

A DMV hearing officer rejected the expert testimony, saying it was not supported by the evidence provided by law enforcement. An appellate court sided with the DMV, and the state’s high court granted a review of the opinion. The state Supreme Court agreed with Coffey on at least one point — that her expert’s testimony should have been considered and not rejected, but it did not set precedent on that issue because the law is unclear whether it applies to administrative hearings.

The Supreme Court suggested lawmakers consider clarifying the law to make it clear whether it applies to administrative proceedings as well as ”prosecutions.”

Attorney Chad Maddox, who represented Coffey in the lawsuit, said it’s possible the ruling could have a ”ripple effect” in criminal prosecutions. The ruling establishes for the first time some guidelines on how to handle a DUI defense when the chemical tests are not conclusive and other circumstantial evidence is taken into account, Maddox said.

For instance, it can now be argued that a DMV hearing officer cannot just reject testimony from an expert and must consider that evidence, as well, Maddox told City News Service.

”They did throw the defense a bone or two and gave us some silver linings,” Maddox said. The ruling, however, could grant greater weight to circumstantial evidence such as a heavy odor of alcohol, he said. ”The danger is (DMV hearing officers) will think everything is strong enough,” Maddox said.

A suspected DUI driver crashed into another car and then a tree before he was arrested in Gardena Feb. 16, 2015. (Published Monday, Feb 16, 2015)

The ruling also may provide attorneys more guidance on the issue of field sobriety tests, he said.

For instance, they should only be used to decide whether an officer has probable cause to arrest a motorist and then subject him or her to blood or breath tests. The results of a field sobriety tests should not be used to prove impairment without other evidence, Maddox said.

The ruling ”has the potential to weaken criminal prosecutions on the impairment statute only,” Maddox said.

A key difference between an administrative hearing such as a license suspension at the DMV and the criminal courts, Maddox noted, is that the agency must prove its case by a ”preponderance” of the evidence as opposed to a criminal court case which requires the higher threshold of proof beyond a reasonable doubt.

If you are charged with a San Diego DUI or other Criminal offense, you need to call our firm immediately. We are available to take action on your case today. Please email or call us at 858-751-4384 or email me at [email protected] to schedule a free consultation. The key is to be proactive.

The full article can be found here.


A little more information on San Diego DMV APS Decisions

I’ve just been arrested for DUI. What happens now?

The officer is required by law to immediately forward a copy of the completed notice of suspension or revocation form and any driver license taken into possession, with a sworn report to the DMV. The DMV automatically conducts an administrative review that includes an examination of the officer’s report, the suspension or revocation order, and any test results. If the suspension or revocation is upheld during the administrative review, you may request a hearing to contest the suspension or revocation.

You have the right to request a hearing from the DMV within 10 days of receipt of the suspension or revocation order. If the review shows there is no basis for the suspension or revocation, the action will be set aside. You will be notified by the DMV in writing only if the suspension or revocation is set aside following the administrative review.

Back to Top of Page

At the time of my arrest, the officer confiscated my driver license. How do I get it back?

Your driver license will be returned to you at the end of the suspension or revocation, provided you pay a $125 reissue fee to the DMV and you file proof of financial responsibility. The reissue fee remains at $100 if you were under age 21 and were suspended under the Zero Tolerance Law pursuant to Vehicle Code §§23136, 13353.1, 13388, 13392. If it is determined that there is not a basis for the suspension or revocation, your driver license will be issued or returned to you.

Back to Top of Page

The officer issued me an Order of Suspension and Temporary License. What am I supposed to do with this document?

You may drive for 30 days from the date the order of suspension or revocation was issued, provided you have been issued a California driver license and your driver license is not expired, or your driving privilege is not suspended or revoked for some other reason.

Back to Top of Page

The Notice of Suspension that the officer gave me at the time of my arrest states I have ten days to request an administrative hearing. What is the purpose of this hearing and what can it do for me?

A hearing is your opportunity to show that the suspension or revocation is not justified.

Back to Top of Page

For how long will my driving privilege be suspended if I took the chemical test?

If you are 21 years of age or older, took a blood or breath test, or (if applicable) a urine test, and the results showed 0.08% BAC or more:

  • A first offense will result in a 4-month suspension.
  • A second or subsequent offense within 10 years will result in a 1-year suspension.

If you are under 21 year of age, took a preliminary alcohol screening (PAS) test or other chemical test and results showed 0.01% BAC or more, your driving privilege will be suspended for 1 year.

Back to Top of Page

Do I need a hearing to get a restricted license to go to and from work?

No. A request for a restricted license cannot be considered at the DMV hearing. You may apply for a restricted license to drive to and from work at any DMV field office.

Back to Top of Page

The officer stated I refused to take a chemical test. What does this mean?

You are required by law to submit to a chemical test to determine the alcohol and/or drug content of your blood. You did not submit to or complete a blood or breath test after being requested to do so by a peace officer. As of January 1999, a urine test is no longer available unless:

  • The officer suspects you were driving under the influence of drugs or a combination of drugs and alcohol, or
  • Both the blood or breath tests are not available, or
  • You are a hemophiliac, or
  • You are taking anticoagulant medication in conjunction with a heart condition.

Back to Top of Page

How long will my driving privilege be suspended for not taking the chemical test?

If you were 21 years or older at the time of arrest and you refused or failed to complete a blood or breath test, or (if applicable) a urine test:

  • A first offense will result in a 1-year suspension.
  • A second offense within 10 years will result in a 2-year revocation.
  • A third or subsequent offense within 10 years will result in a 3-year revocation.

If you were under 21 years of age at the time of being detained or arrested and you refused or failed to complete a PAS test or other chemical test:

  • A first offense will result in a 1-year suspension.
  • A second offense within 10 years will result in a 2-year revocation.
  • A third or subsequent offense within 10 years will result in a 3-year revocation.
FindLaw Network
Share This