Recent DMV Wins- Set Aside Granted

April 21, 2021

DUI with Refusal

Result: DMV License Suspension Set Aside

Documentation: images/dmv-wins/April_2021_set_aside.pdf

Client was detained for speeding and arrested for DUI after Officer Hawkins noticed objective symptoms of impairment.  This was a case where the video, combined with cross examination of the arresting officer, revealed that Client was never properly admonished about the consequences of failing to complete a chemical breath or blood test. After Officer Hawkins informed Client that he was required to take a test, Client chose a breath test. At the police station Client failed to complete that test because he was not blowing hard enough into the machine. At this point, the Officer asked Client if he would take a blood test and Client responded that he was afraid of needles. Instead informing Client of the mandatory suspension period and other consequences of failing to complete a test, the Officer simply proceeded to book the Client as a “refusal” DUI.  This was not a valid refusal. The law requires an officer to admonish (warn) the accused about the consequences of failing to complete a chemical test and then, after the accused is informed of the consequences of refusal, an opportunity must be given to the accused to complete the chemical test. Many officers seem to not understand that a DUI refusal (with its mandatory hard suspension period) only occurs if an accused fails or refuses to provide a test AFTER being properly informed about the consequences of a refusal. Since this Client’s refusal DUI was set-aside, he did not have any hard suspension imposed on his driver’s license. 

November 25, 2020

DUI with .14/.14 BAC and Accident

Result: DMV License Suspension Set Aside

Documentation: images/dmv-wins/November_202_set_aside.pdf

Client was arrested for a first time DUI after a collision in which multiple cars were damaged. Officers claimed defendant was impaired and exhibited all the objective signs of impairment. At the station, Client blew a .14/.14 BAC. Due to the length of time of the collision investigation, Client’s breath test was conducted more than 3 hours after the time of driving.  DMV was therefore required to present a toxicologist to testify that Client was still above a .08 BAC at the time of driving.  This is required because the law does not allow the DMV to presume a driver was driving a vehicle with a BAC of .08 percent or more unless there is a chemical test that was conducted within 3 hours of the time of driving that shows a result of .08 percent or more.  The toxicologist who testified at the DMV hearing had to admit that she did not have enough evidence to conduct retrograde extrapolation because the Client’s drinking pattern was deficient. The hearing officer had to set aside the suspension.

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.

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