Recent DMV Wins- Set Aside Granted

August 12, 2020

DUI with Accident .11/.12 BAC

Result: DMV License Suspension Set Aside

Documentation: images/dmv-wins/PDF 1.pdf

This was a first time DUI with an accident. This case was a lucky example of a technicality winning the day. The officer wrote both his name and his partner’s name on the signature lines on the sworn portion of the report (DS367). DMV only subpoenaed one of the officers. As it turned out, that officer did not conduct the arrest and did not fill out the DS367.  I objected to any continuance for the DMV to subpoena the other officer since they were on notice that two officers’ names were written on every signature line.  Hearing Officer was fair and set aside the suspension.  Since client’s DUI was reduced to a wet reckless in court she had no suspension and did not need to obtain a restricted license. 

July 14, 2020

DUI with Refusal

Result: DMV License Suspension Set Aside

Documentation: images/dmv-wins/PDF 2.pdf

This was a refusal case where client was looking at a one-year hard suspension.  She was in a bad accident where she injured herself. At the hospital, while being attended to by doctors, the arresting officer asked her to consent to a blood test. She was in a lot of pain and crying and said she rather not. She confirmed to the officer that she was refusing the test.  Later, the same officer came back to her hospital bed and told her that she had to read the client a refusal admonishment. The officer read the DUI refusal admonition in full.  The police officer stated that because she already refused a blood test earlier, that she was going to “get a refusal”. The Officer was required by law to give the client an option to take the test AFTER knowing the consequences (after being read the refusal admonition).  This was never done. The Hearing Officer set aside the refusal suspension.

July 14, 2020

DUI with Accident and Rising BAC Defense

Result: DMV License Suspension Set Aside

Documentation: images/dmv-wins/PDF 3.pdf

This was another accident case, but Client blew a .085/.083 BAC on the breath machine.  Luckily, he had not incriminated himself by telling the officer how much he had drank and when he started and stopped drinking. We presented a toxicologist at the DMV hearing who testified that Client’s BAC was going up (still absorbing alcohol) at the time of driving and therefore he would have been below a .08 BAC at the time of driving. Client also testified to his drinking pattern.  The DMV hearing officer set aside the suspension, because we were able to rebut the presumption that Client was driving with a .08 or higher BAC.

July 14, 2020

DUI With BAC .14

Result: DMV License Suspension Set Aside

Documentation: images/dmv-wins/PDF 4.pdf

This was a lucky break for the Client since the chemical test was conducted more than three hours after the driving, but the DMV did not subpoena a toxicologist.  It was an oversight, but it resulted in a set aside for the Client!

June 15, 2020

Refusal First Offense with Accident

Result: DMV License Suspension Set Aside

Documentation: images/dmv-wins/PDF 5.pdf

This was a case that relied a lot on video and audio evidence.  It was clear from the video that the Client refused to take a blood or breath test but the officer never fully admonished him.  The Officer testified and tried to say it was he read the admonishment and that it would be on the bodycam video.  The bodycam video only showed the client refusing and the officer telling the client that his license would be suspended.  But the rest of the admonition was never summarized or read, and Client was never given an opportunity to take a test after being informed of any consequences.  The Hearing Officer set aside the one-year suspension.

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