Recent DMV Wins- Set Aside Granted

November 18, 2019

First Time Dui with .08/.09 BAC

Result: DMV License Suspension Set Aside

Documentation: images/dmv-wins/PDF 9.pdf

Client blew a .08/.09 breath test at the station after being arrested for a DUI in a checkpoint.  At the scene, Client was either not asked by the officer or did not reveal the time he started and stopped drinking, which helped the case.  At the DMV he testified that he had just finished his last drink about 15 minutes before the stop, since he left the restaurant within a couple minutes of finishing his last drink.  He did tell the officer he had two mixed drinks.  At the hearing, a toxicologist testified that if the Client drank the amount he testified to and started and stopped drinking at the times he testified to, then he would have been below a .08 at the time of driving.  The DMV Officer found the presumption that the Client was a .08 or more at the time he was stopped was rebutted, and set aside the suspension.

September 23, 2019

First Time DUI with accident .16

Result: DMV License Suspension Set Aside

Documentation: images/dmv-wins/PDF 10.pdf

This case involved an accident and hit and run, where Client drove home. Cops arrived about an hour later and knocked on his door. Client appeared to be drunk and having just woken up. He claimed he did not know about any accident and refused to answer any other questions. The alleged victim only got the license number of the vehicle that hit her, and could not identify the driver.  Although the client’s vehicle sustained damage that appeared to match the damage caused to the other vehicle, the cops could not prove he was driving at the time because Client exercised his right to remain silent.  The DMV set aside the suspension due to lack of time of driving and identity.  Case was ultimately rejected by city prosecutor. (Many cases would not be filed if suspects did not incriminate themselves.)

August 19, 2019

Second Time Dui with Accident .12 BAC

Result: DMV License Suspension Set Aside

Documentation: images/dmv-wins/PDF 11.pdf

Another technicality case—Officer failed to write in the time and date of the contact.  Usually the DMV will subpoena an officer to testify to fix the clerical error.  But without the officer, the DMV cannot make a finding regarding the time of driving, and therefore they cannot rely on the legal presumption that the driver had a chemical test of a .08 BAC or more that was conducted within 3 hours of driving. The rest of the unsworn evidence, such as the narrative arrest report, cannot come in, as it is hearsay.  The Officer was not subpoenaed, so due to an error by the DMV, the suspension was set aside. While client was lucky they made a mistake and that the officer failed to fill out the form properly, many DUI suspects never request a DMV hearing or don’t know the legal requirements, so it is always important to have a good lawyer review all the evidence!

May 08, 2019

DUI with a .08/.08 PAS and .09/.08 Breath-Rising Defense

Result: DMV License Suspension Set Aside

Documentation: images/dmv-wins/PDF 12.pdf

Client had a good rising defense.  The PAS calibration and accuracy records showed the machine was reading about .004 high, bringing the .08 down to a high .07.  The client did not testify.  A toxicologist testified at the DMV hearing that based upon the numbers alone, the Client must have still been absorbing alcohol at the time he was pulled over for speeding. The Toxicologist opined that Client’s BAC at the time of driving was certainly below a .08.  DMV issued a set aside.

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