Dept. of Motor Vehicle Issues
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The trial court erred by upholding the DMV’s driver’s license suspension after the defense presented unrebutted evidence that the blood alcohol testing measurement was flawed.The DMV suspended defendant’s driver’s license after the administrative hearing provided to suspected drunk drivers. The trial court erred in denying defendant’s writ petition seeking to overturn the hearing officer’s decision. The defense presented the unrebutted testimony of an expert who opined that the testing procedure used to measure the blood alcohol content was scientifically invalid.id: 24901
Defendant was entitled to a new drunk driving DMV administrative hearing based on the fact that the original hearing officer acknowledged that she had been taking bribes.The DMV hearing officer admitting taking bribes for several years. Defendant, who had lost an administrative hearing, petitioned to have his driver’s license reinstated. Defendant was entitled to a new administrative hearing because the original hearing took place before a hearing officer who lacked impartiality. He was not entitled to automatically receive reinstatement of his license.id: 24914
The DMV was required to provide a transcript of the administrative hearing to the indigent defendant who was appealing his license suspension. The defendant lost his driver’s license at a DMV administrative hearing based on his refusal to submit to a chemical test to determine his blood alcohol concentration. The DMV’s duty to prepare a record for the appeal of the matter included the duty to provide a copy of the administrative hearing to the indigent defendant.id: 22979
DMV failed to meet its burdens of showing defendant drove with an excessive blood alcohol content once defendant showed the breath test device reported excessive results and the DMV produced no evidence of reliability.The trial court properly determined the DMV failed to meet its burden of proving defendant was driving with a blood alcohol content of .08 or greater. Although the DMV met its initial burden when it produced the official blood alcohol test results, defendant presented affirmative evidence that the breath test instrument reported excessive results when tested and thereby defeated the presumption of validity. The burden then shifted back to the DMV to prove the test was nonetheless reliable but it produced no evidence to meet its burden. id: 21834
Preliminary alcohol screening test of a minor must be preceded by a lawful detention to support a license suspension.The DMV suspended the minor's driving privilege after a preliminary alcohol screening test established his blood alcohol concentration was greater than .01. However, the initial detention was based upon less than reasonable suspicion. The DMV argued that minors have a lower privacy interest and the detention standard should be more flexible. The court found that Vehicle Code section 23136's requirement that the testing shall be incidental to a lawful detention means the detention must be supported by reasonable suspicion.id: 10610
DMV's suspension of drunk driver's license was invalid where there was no showing of the reliability of the Intoximeter.The Department of Motor Vehicles sought to suspend appellant's driving privileges based on a claim that he drove with excessive blood alcohol content. At the administrative hearing he objected to the admission of the Intoximeter 3000 test results challenging their reliability and presented his own evidence that the testing laboratory had not been specifically licensed and authorized by the state Department of Health Services to operate the instrument. There was no showing that the machine was in working order at the time of the test; there was no showing of how the test was administered; and there was no showing regarding the qualifications of the operator. The evidence was insufficient to support the findings necessary to uphold the license suspension.id: 10583
Acquittal on drunk driving charge mandates reinstatement of a driver's license earlier suspended pursuant to section 13353.2Defendant was charged with drunk driving and the Department of Motor Vehicles immediately suspended his driver's license pursuant to Vehicle Code section 13353.2, subdivision (a). Defendant was then acquitted on the charge of driving with a blood alcohol level of .08 percent or more. This acquittal mandated reinstatement of defendant's earlier suspended driver's license.id: 10552
DMV may not suspend a drunk driver's license where the blood test results were put in evidence only through the hearsay statement of an officer.At appellant's Department of Motor Vehicle hearing to suspend his driver's license for driving with a blood alcohol content greater than .08 percent, the blood test results were put in evidence only through the hearsay statement of a police officer. The officer's sworn statement that he saw the test results and was accurately reporting them could not attest to the accuracy of the test results themselves or the propriety of procedures employed in obtaining them. The officer's statement was inadmissible as the sole proof of appellant's blood alcohol concentration.id: 10581
Evidence did not support driver's license suspension by DMV where the blood alcohol test did not specify the time the test was prepared.The blood alcohol test results provided to the Department of Motor Vehicles in the proceeding to suspend appellant's driving privileges based on a claim of drunk driving, improperly failed to indicate the time the sample was collected or analyzed. Moreover, based on respondent's testimony regarding amounts and times of alcohol and food consumed, her expert testified that he believed her blood alcohol level would have been less than 0.08 percent at the time of driving because at least the last drink that she consumed would not yet have been absorbed.id: 10591
DMV's failure to enforce its subpoena for the arresting officer's presence at the hearing required recision of the driver's license suspension.Appellant's driver's license was suspended by the Department of Motor Vehicles for failing to submit to or complete a chemical test to determine his blood alcohol level. However, he was denied his constitutional and statutory rights to confront and cross-examine his accuser, the arresting officer, by the D.M.V.'s refusal to enforce its subpena for the officer's attendance at the hearing. The suspension was therefore rescinded.id: 10569
Evidence was insufficient to establish defendant's BAC at the time of driving was over the legal limit where there was no showing as to when the blood test was given.The trial court did not err in finding the Department of Motor Vehicle's evidence was insufficient to establish that defendant's blood alcohol content at the time of driving was 0.08 percent or more. The DMV submitted evidence that defendant was driving erratically, smelled of alcohol, had bloodshot/watery eyes, slurred speech, and an unsteady gait. It also submitted the laboratory report showing that a blood sample the laboratory received three days after the arrest had a BAC of 0.17 percent. However, the DMV submitted no evidence to establish when defendant gave the tested blood sample. On this record the trial court reasonably could have determined that the defendant's BAC at the time of driving was lower.id: 10595
Driver's license suspension was set aside where the lab report on the blood alcohol test was undated.The Department of Motor Vehicles relied on the report prepared by the forensics lab to suspend defendant's driver's license for drunk driving. However, the report was not dated and there was no other information which the trial court could rely on to deduce its date of preparation. The absence of evidence showing the report was made at or near the time of the event precluded application of the official record exception to the hearsay rule. The suspension of the driver's license was properly set aside.id: 10584
Drivers license suspension was properly reversed where the forensic trainee was not supervised when she performed the forensic alcohol test.Following an administrative per se hearing the DMV suspended defendants driving privilege for driving with a blood alcohol concentration in excess of the legal limit. However, the superior court granted defendants writ after finding the forensic report was inadmissible. Given that the forensic analyst signed a report stating she performed a forensic alcohol test before the urine sample ever made it to the laboratory, and the forensic trainee was not supervised when she performed the test, the courts finding was supported by the record.id: 15518
License suspension was set aside where the forensic report was prepared by an unsupervised forensic analyst trainee.A forensic alcohol report becomes an official record of the DMV, and thus admissible at an administrative per se hearing, if it complies with the requirements governing the admission of evidence. However, the instant trial court properly set aside the suspension finding the tests were performed by unsupervised, and thus unqualified, forensic analyst trainees.id: 15522
Forensic alcohol report was prepared several days after the accident and may not have qualified as an official record under section 1280, but when coupled with the police report, the evidence showed defendant drove while intoxicated.Defendant argued the alcohol analysis report showing the amount of alcohol in his blood was erroneously admitted into evidence at his DMV hearing. While the blood was analyzed on November 1st, the report was not typed until November 7th. Thus, defendant argued it did not qualify under the official records exception to the hearsay rule (Evidence Code section 1280) because the writing was not made at or near the time of the act. However, there was circumstantial evidence relating to defendant's blood alcohol content in the police report. This evidence, together with the forensic report- which the trial court found reliable - provided substantial evidence that defendant's blood alcohol content exceeded the legal limit at the time of the accident.id: 17064
DMV erred by suspending defendant's commercial license for a year after he was convicted of non-commercial drunk driving.Vehicle Code section 15300 permits a one-year suspension of a commercial driver's license upon conviction of driving a commercial motor vehicle under the influence of alcohol. While defendant was originally charged with driving a commercial vehicle while intoxicated under section 23152, subd.(d), he pled guilty to a violation of the regular drunk statute -section 23152, subd.(b). The DMV exceeded its jurisdiction in suspending defendant's commercial license for a year because section 15300 does not authorize that penalty for a conviction of non-commercial drunk driving.id: 17048
The emblem on the investigative report did not constitute a seal and therefore the report was not sufficiently authenticated to merit admission into evidence at the DMV hearing.At the DMV hearing to determine whether defendant's license should be suspended for drunk driving, the DMV offered a Sheriff's Scientific Investigation Division (SID) report which reflected a blood alcohol level of .16 percent. However, the report was not sufficiently authenticated to merit admission into evidence. The report was not signed by anyone, and therefore the emblem stamped on the report does not meet the statutory definition of a seal. The trial court properly found the report had not been properly authenticated.id: 14891
DMV license suspension was properly set aside where the DMV lost part of the original record and refused to pay to reconstruct it for purposes of the challenge.The Department of Motor Vehicles suspended defendant's driver's license following an administrative per se hearing where it was determined that he drove while intoxicated. When he challenged the suspension in court the DMV was unable to file the complete administrative record because it had lost a portion of the hearing and refused to bear the cost of reconstructing it. The trial court did not err in setting aside the suspension.id: 14888
Forensic alcohol test submitted by DMV was not competent evidence because it was not prepared by a person with an official duty.The forensic alcohol analysis submitted by the DMV was not sufficient competent evidence to support the driver's license suspension, because the DMV failed to establish that it had been prepared by a person with an official duty, and therefore did not qualify for admission over a hearsay objection in a civil action.id: 16930
Evidence supported the trial court's finding that the DMV improperly suspended defendant's driver's license because the preliminary alcohol screening tests were
unreliable.Evidence supported the trial court's finding that the PAS test results were not sufficiently reliable to support the DMV hearing officer's finding that defendant drove with a
blood alcohol content in excess of 0.08 percent. The court reasonably concluded the arresting officer did not conduct the PAS test to determine blood alcohol content. But he intended only to learn whether there was alcohol in defendant's system. The record also showed the officer's noncompliance with title 17 requirements would have produced a false positive test.id: 19171
DMV cannot suspend a driver's license without a valid chemical test showing the driver's blood alcohol content exceeded .08 percent.Under the "Administrative Per Se" law the DMV may suspend a driver's license when a motorist has been arrested for drunk driving before the motorist has had the benefit of a criminal prosecution for drunk driving. Because the law operates in a summary fashion, the DMV must show the motorist had a blood alcohol content of .08 at the time he or she was driving. A valid chemical test is necessary for the DMV to sustain its burden.id: 16826
A driver may defend in an implied-consent hearing by proof of lack of capacity to refuse to submit to a chemical test.Department of Motor Vehicles argued that the determination of whether a driver is capable of refusing to submit to a chemical test should be subject only to the reasonable judgment of the arresting officer. However, a driver may defend in an implied-consent hearing by proof of lack of capacity to refuse a test. Moreover, substantial evidence supported the trial court's finding that despite how the officer may have interpreted respondent's remarks and conduct at the scene, his severe injuries rendered him incapable of refusing consent.id: 10548
Observed volitional movement of a vehicle is required before a person's driving privilege may be revoked for refusing to submit to chemical testing.A police officer found defendant slumped over the steering wheel of his car while the lights were on and the car was running. The car was parked and when defendant awakened to see the officer, he began pulling the gears as if he were driving or about ready to drive. Such conduct did not constitute driving a vehicle for purposes of the instant statutes. Under Vehicle Code sections 23157 and 13353, as presently written, the state may not suspend or revoke a driver's license for failure to submit to chemical testing in the absence of observed volitional movement of the vehicle.id: 10603
Officer’s testimony supported the required 15 minute observation before breath tests despite contrary notes on the DS-367 form. Defendant who was arrested for drunk driving, argued his blood alcohol test results were inadmissible because the time entries on the notice indicated the two breath tests were administered before the officer observed him for 15 minutes as required. However, the officer testified that he was aware of the requirement and complied with it, suggesting the notation on the form was just an estimate he provided after he had returned to the station. The dispatch logs supported his claim.id: 26506
Defendant, at the DMV administrative hearing, failed to show the officer who performed the chemical test was not properly trained to use the equipment.The DMV suspended defendant’s driver’s license for drunk driving. After an administrative hearing officer upheld the suspension, defendant petitioned for a writ of mandate arguing that she had presented evidence showing the police officer who administered the chemical test was not properly trained in using the test equipment. The trial court granted the writ. However, defendant’s evidence did not rebut the presumption that the test was performed properly. The laboratory’s affidavit was not sufficient to show the officer was unqualified to administer the tests, thus returning the burden to the DMV. Defendant could have examined the officer on that point, and when the officer failed to appear in response to the subpoena, defendant could have sought a continuance or asked the DMV hearing officer to issue a subpoena.id: 26881
Defendant’s purported consent to a blood test (after police obtained a search warrant) and failure to submit to a breath test constituted a refusal to submit to a chemical test. The DMV suspended defendant’s driver’s license for one year in a drunk driving case. The record supported the implied finding that she refused to submit to a chemical test. She argued that she had a right under Missouri v. McNeely (2013) 133 S. Ct. 1552, to force police to obtain her consent before taking her blood for testing. However, although she had a right to be free from a warrantless coerced blood draw following a lawful arrest, she had no such right with respect to a breath test. Her consent to a blood draw (after a warrant was obtained) to the exclusion of a breath test, constituted a refusal to submit to a chemical test.id: 25059
Drunk driver was entitled to credit against his sentence for the time his license had been suspended by the DMV but not for the period where his license had been restricted.Defendant was arrested for drunk driving and the DMV suspended his driver’s license for four months after a hearing. 51 days later, he applied for and received a restricted license allowing him to drive to work and classes. He was later convicted of the drunk driving offense in court. While he was entitled to full credit for the time his license was suspended by the DMV (51 days) he was not entitled to credit for the time the licence was merely restricted. Defendant was not treated in an arbitrary and capricious way simply because of the delay between the DMV suspension and the criminal conviction. id: 23947
The trial court did not err by discounting the defense expert’s testimony at an administrative DMV hearing and considering circumstantial, nontest evidence of defendant’s intoxication.In an administrative hearing to review the defendant’s driver’s license suspension, the court did not err by considering, in addition to the results of the breath and blood tests, other circumstantial behavioral evidence of intoxication to conclude by a preponderance of the evidence that defendant’s blood alcohol content was over .08 percent.id: 24037
Presumptive validity of the BAC test results cannot be rebutted by testimony that all “Intoxilyzer 500" results have an inherent margin of error.A defense expert’s conclusion that there is a margin of error inherent in a blood alcohol level scientifically measured with an “Intoxilyzer 500”, an approved DMV breath testing device, may not be used to defeat the legislative determination that a person who drives with a reported blood alcohol concentration of .08 or higher will suffer suspension of driving privileges.id: 22070
Because the DMV does not impose criminal sanctions following the administrative hearing, “relaxed” standards of due process apply. Defendant argued the DMV finding that he drove a motor vehicle with an excessive blood alcohol content does not satisfy due process so as to be deemed a conviction under Vehicle Code section 15300 which disqualifies him from operating a commercial vehicle for a year. However, because the DMV hearing is not conducted to impose criminal sanctions, “relaxed” standards of due process apply. It is presumed that the hearing officer had the education, experience and ability required by the California State Personnel Board.id: 22021
A person who held a commercial driver’s license at the time of a traffic violation, but then surrendered the license is barred from completing traffic school in lieu of adjudicating the traffic offense.A person who held a commercial driver’s license at the time of violating a traffic offense, but who surrendered the license is barred from completing traffic school in lieu of adjudicating the traffic offense pursuant to Vehicle Code section 42005, subd.(c), notwithstanding that the section refers to the present tense “holds a ... commercial ... license.” id: 21705
Drunk driving defendant’s failure or refusal to complete the breath test was not vitiated by his belated compliance with a blood test.The drunk driving defendant’s driver’s license was suspended by the DMV for refusing to complete the breath test. He argued the trial court erred by finding he would not change his mind and elect a blood test before attempting the breath test. However, one cannot legally refuse any test, then agree to the officer’s choice of a test, fail to complete that test and avoid the consequences of his prior conduct by agreeing to take the initially rejected test.id: 21601
Defendant refused to take a chemical test by remaining silent when the officer listed his options and failed to complete the breath test by refusing to blow a second time. The drunk driving defendant moved to set aside the DMV suspension of his license for refusing to submit to a chemical test when stopped. However, defendant refused to take or failed to complete a chemical test where he refused to choose a test after multiple requests by the officer at the scene, and then later after agreeing to a breath test refusing to blow a second time after an ineffectual first attempt. id: 21600
04 blood alcohol level was sufficient to suspend a commercial driver’s license and sustain the suspension after an administrative hearing. Defendant at an administrative hearing argued that while the DMV can immediately suspend the driver’s license of a person with a blood alcohol content of over 0.04, who drove a vehicle that requires a commercial license, it cannot sustain an order of suspension following the administrative hearing unless that person had a blood alcohol content of more than 0.08. (Vehicle Code section 13557 (b)(2)(c).) However, despite the wording in the statute, a blood alcohol content of .0.04 or more was sufficient both to suspend defendant's licence and sustain the order of suspension following the administrative hearing.id: 21117
Lab report showing blood test results was admissible at the DMV hearing under the public employee records hearsay exception.The lab report of the suspected drunk driver’s blood test results was admissible under the public employee records exception to the hearsay rule and should have been admitted at defendant’s DMV hearing.id: 21157
The trial court reviewing the DMV hearing did not err in excluding the lab report of the blood test results or the breath results obtained using the PAS device. The trial court did not err when it excluded at review of defendant’s DMV administrative hearing, the lab report of the blood test results or the breath test results that were obtained using the PAS device. The former did not meet the requirements of Evidence Code section 1280 (public records hearing exception) because the report was not prepared near the time of the testing. Moreover, the DMV could not rely on the section 664 presumption to establish the foundation necessary for the admission of the PAS test results. id: 20903
Citizen's valid arrest of drunk driver for vandalism and malicious mischief constituted an implied arrest for drunk driving and supported the license revocation.The officer did not see defendant's car move and, therefore, she could not arrest defendant for drunk driving. However, a citizen witnessed defendant's drunk driving and subsequently signed a citizen's arrest for malicious mischief and vandalism. While the witness did not expressly arrest defendant for drunk driving, his conduct constituted an implicit arrest which supported the driver's license revocation by the DMV.id: 10561
DMV cannot restore a drunk driver's license until it receives proof he or she has attended a drinking driver program.Defendant was convicted of drunk driving and upon receipt of the abstract of judgment, the Department of Motor Vehicles immediately suspended his driving privileges for one year as required under Vehicle Code section 13352. The court erred in ordering the driving privileges reinstated because the DMV was under a mandatory duty to require defendant to present proof that he completed a drinking driver program before it could reinstate his license.id: 10578
Lab's failure to forward chemical test results to DMV in 15 days did not render the results inadmissible in a license suspension proceeding.A forensic laboratory's failure to forward the results of a chemical test to the Department of Motor Vehicles within the prescribed 15 calendar days does not automatically render the test results inadmissible in an administrative license suspension proceeding.id: 10601
DMV can rely on unsworn police reports or unsworn forensic lab reports at the administrative hearing to suspend the license of a suspected drunk driver.In an administrative per se review hearing, the DMV presents sufficient evidence to show the individual arrested was driving the vehicle, when the only evidence that satisfies a hearsay exception is contained in an unsworn police report. Moreover, the DMV presents sufficient evidence to show the person driving did so with a prohibited blood alcohol content when the only evidence is an unsworn forensic laboratory report documenting the results of a chemical test of the driver's urine.id: 10577
Blood collection procedures following drunk driving arrest are presumed proper under section 664 and it is up to the defendant to prove otherwise.Defendant was arrested for drunk driving. The Department of Motor Vehicles suspended his driver's license after a hearing. Defendant challenged the suspension in a writ petition arguing the DMV failed to prove the blood sample was properly collected. The superior court granted the petition for writ of mandate. However, the blood collection procedures are presumed proper under Evidence Code section 664, and it was incumbent on the defendant to show the procedures were not properly performed. The court's order was reversed.id: 14886
Evidence supported the court's finding that the blood was drawn within three hours of the accident where the police arrived at the scene approximately two hours before the blood was drawn.Defendant challenged the DMV's suspension of his driver's license. He argued there was no proof that his blood was drawn within three hours of the accident as required by Vehicle Code section 23152, subd.(b). However, defendant was found floating in the bay at around midnight and his blood was drawn at 2:15 a.m. There was no evidence to challenge the trial court's conclusion that the police were called to the scene near the time of the accident which would have satisfied the three hour requirement.id: 17065
Defendant waived his objection to the unsworn reports of the arresting officer by failing to appear at the DMV hearing he requested.Defendant argued the arresting officer's unsworn reports were inadmissible at the administrative hearing to suspend his driver's license. However, defendant did not appear at the DMV hearing and therefore waived his objection to the unsworn reports.id: 17051
Arresting officer need not have direct and unbroken eye contact for 15 minutes with a suspected drunk driver before administering a breath test.The Department of Motor Vehicles suspended defendant's driver's license after finding he was driving with a high blood alcohol content. The trial court thereafter granted defendant's writ of mandate based on the arresting officer's failure to comply with the requirement of a 15 minute period of continuous observation before administering a breath test. (Cal. Code Regs. title 17, �1219.3.) However, the regulation does not require direct and unbroken eye contact for 15 minutes so long as the officer remains present with the subject and is able to use all of his or her senses in making the determination . The trial court's finding, based on a misinterpretation of regulation 1219.3, was erroneous as a matter of law.id: 17188
Defendant's failure to request an administrative hearing precluded him from obtaining judicial review of the DMV's decision to suspend his license.A driver's license is suspended for operating a motor vehicle with a blood alcohol level of 0.08 percent or more. A person may not seek judicial review of the DMV's automatic review of his suspension under Vehicle Code section 13557. A driver who wishes to obtain judicial review of a suspension decision must first request an administrative hearing before the DMV under section 13558.id: 17022
Blood alcohol test results were admissible at the DMV hearing where the lab trainee who performed the test was adequately supervised.Defendant challenged the DMV's suspension of her driver's license. She claimed the DMV did not establish the requisite foundation for admission of the blood alcohol concentration evidence. Specifically, she claimed the crime lab did not comply with California Code of Regulations, title 17, because the forensic trainee who analyzed the test was "unsupervised." However, senior analysts were in the same lab room and available to answer questions. Moreover, the trainee was instructed to follow certain guidelines and notify the supervisor if any deviations were detected. Finally, quality control procedures required a comparison of the trainee's results with those of a another experienced analyst who performed a second test. There was ample evidence to support the court's conclusion that the trainee was adequately supervised.id: 17043
Section 1219.3 does not require a single person observe the suspected drunk driver for 15 minutes prior to the breath test.California Code of Regulations, title 17 section 1219.3 does not require a single person to observe the breath test subject for 15 minutes prior to the test. The continuous observation requirement can also be met when two or more observers split the observation of the test subject.
id: 17687
Officer who observed defendant prior to the breath test was not required to be a certified intoxilyzer operator.The regulatory requirement that a breath test subject not regurgitate, vomit, eat, smoke or ingest alcohol or any other fluid for at least 15 minutes before the collection of a breath sample (Cal. Code Regs. Title 17, � 1219.3) does not require the officer observing the subject, as opposed to the person who eventually administers the breath test, to be certified in the use of the breath test device. Substantial evidence therefore supported the DMV's decision to suspend defendant's driver's license following the failed breath test.id: 17658
Section 664 presumption applied to establish the arresting officer properly administered the breath test to the suspected drunk driver.The DMV suspended defendant's license following his arrest for drunk driving. However, the arresting officer failed to sign the portion of the sworn arrest report certifying that he obtained defendant's breath samples in the regular course of his duties, that he was qualified to operate the equipment and that he administered the test in accordance with applicable regulations. Despite these problems the Evidence Code section 664 presumption of official duty was sufficient to establish the foundational requirements for reliability of the test results.id: 17524
Virginia drunk driving conviction should have been given reciprocal effect in California.Defendant was convicted of drunk driving in California. The DMV then suspended his driver's license. The order cited an earlier Virginia drunk driving conviction as a basis for the suspension. The trial court erred by then granting defendant's writ petition refusing to treat the Virginia offense as a drunk driving conviction under California law. The out-of-state conviction should have been given reciprocal effect in California. id: 17598
Court erred in setting aside the license suspension where the officer's sworn report established probable cause to arrest and the report was supported by live testimony and other unsworn reports.Following an administrative hearing, the DMV suspended defendant's driver's license. The trial court then set aside the suspension after finding the arresting officer's sworn report did not contain sufficient facts to establish probable cause to arrest. However, the sworn police report showed a witness watched defendant attempt to drive her damaged car from an accident scene in the early morning hours. The officer observed the defendant had bloodshot eyes and smelled of alcohol. Moreover, facts from the officer's accompanying unsworn report and the witness's live testimony were consistent with and supported the sworn report. The suspension order was reinstated.id: 17436
DMV may consider arresting officer's unsworn statement at the administrative hearing.Upon arresting someone for driving under the influence of alcohol or drugs, the arresting officer is required to make a sworn statement to the DMV setting out all of the relevant information. At an administrative per se review hearing, the DMV may, in addition to considering the officer's sworn statement, also consider an unsworn statement by the arresting officer. , ____ Cal.4th ____, ____ Cal.Rptr.3d ____, (2004) January 8, 2004. <$!IMacDonald v. Gutierrez, ____ Cal.4th ____, ____ Cal.Rptr.3d ____, 2004 D.A.R. 253 (2004) .>
id: 17691
The implied consent law and provision allowing suspension of a driver's license for refusal to submit to testing do not require proof of actual driving. The consent to chemical sobriety testing requirement pursuant to Vehicle Code section 23612 does not require proof of actual driving immediately prior to lawful arrest for driving under the influence of alcohol or drugs. Moreover, license suspension under section 13353 for refusing to submit to chemical testing under the implied consent law does not require proof that the person actually was driving immediately prior to the arrest.id: 19584
Fire captain's reported observations were admissible at the DMV administrative hearing to prove defendant was driving the car.Defendant was arrested for drunk driving. He argued there was insufficient admissible evidence introduced at the administrative
DMV hearing to show he was driving the vehicle. However, the fire captain's reported observations were properly admitted at the hearing because the police officer's statement and unsworn arrest report qualified as public employee records to the extent they reported the fire captain's observations. Moreover, defendant's admissions recounted by the fire captain came
within the party admission exception to the hearsay rule.id: 19745
DMV may suspend a driver's license even absent proof that the person was actually driving at the time of the offense.A person's driver's license may be suspended for failing to submit to a chemical test absent a finding that the person was actually driving at the time of the alleged drunk driving offense.id: 18358
Colorado's drunk driving law is substantially similar to the California law and should have been used as a prior to extend defendant's license suspension.Colorado's drunk driving statute is substantially similar in substance, interpretation, and enforcement to Vehicle Code section 23152 and therefore defendant's Colorado conviction should have been used as a prior to enhance his suspension to one year under California administrative license revocation scheme which permits enhancements for repeat offenders. The differences between the Colorado and California statutory schemes, including the varying levels of impairment, do not prevent this conclusion.id: 15514
Defense did not rebut the presumption of reliability of the blood alcohol test at the DMV hearing by showing the seal on the sample was broken six days before the test.The DMV appealed the trial court's order requiring the DMV to set aside it's order suspending defendant's driver's license. The defense expert had earlier concluded that the integrity of the blood sample was compromised when the seal had been cut some six days before it was tested. However, there was no evidence that the vial was opened or that the contents were mixed with other ingredients. Therefore, the trial court's findings were not supported by substantial evidence.id: 15516
DMV may suspend a drunk driver's license based on breath-alcohol concentration.The Department of Motor Vehicles may suspend a person's driving privilege pursuant to Vehicle Code section 13353.2 for a breath-alcohol result expressed as grams of alcohol per 210 liters of breath instead of blood-alcohol concentration.id: 15517
In deciding whether to suspend a driver's license, the DMV may look to the facts underlying an out-of-state conviction.Appellant was convicted of drunk driving in California. The Department of Motor Vehicles erred in relying on appellant's prior Florida drunk driving conviction to suspend his driver's license pursuant to Vehicle Code section 13352, subdivision (a)(3). The DMV failed to provide sufficient evidence to show he was convicted of drunk driving in Florida. The only documents presented were the police report and traffic citation. The DMV should not have considered the police report, and the traffic citation, standing alone, was insufficient to establish a conviction. However, the court did find that in cases involving out-of-state convictions, California may look to the facts underlying the conviction to determine whether the offenses are congruent.id: 15521
Trial court erred in finding the duress defense applicable to an administrative per se hearing.The duress defense did not apply in the administrative per se proceeding conducted to review the suspension of a driver's license for drunk driving.id: 15525
Urine sample collected 32 minutes after initial voiding of the bladder was proper despite a second voiding prior to the collection of the sample.Defendant, a suspected drunk driver, voided his bladder not once, but twice before the urine sample was collected. The sample was collected 32 minutes after the initial voiding. California Code of Regulations, title 17, section 1219.2 requires that the sample be collected no sooner than 20 minutes after the first voiding of the bladder. Contrary to defendant's argument, this provision does not require a 20 minute delay following each voiding - just the first. The urine test was properly administered in the present case.id: 15526
When a suspected drunk driver selects the urine test the suspect must void the bladder by urinating in the presence of the officer administering the test.The procedure for obtaining a urine sample is set forth in California Code of Regulations, title 17, section 1219.2, subd. (a), which requires that the sample be collected no sooner than twenty minutes after first voiding the bladder. Defendant argued the subject should be permitted to establish his bladder is void of urine by saying so without actually urinating in the officer's presence. However, the requirement of first voiding the bladder is satisfied only when there is a demonstrable urination by the test subject in front of the officer administering the test. Defendant's inability to complete the urine test required him to select one of the two remaining intoxication tests - blood or breath. His refusal to submit to either constituted a violation of his obligation under Vehicle Code section 23157 thereby supporting the DMV's suspension of his driver's license.id: 10633
Hearing Officer erred in admitting the declaration of defendant's forensic toxicologist where defendant neglected to notify the DMV of his intent to admit the document at the hearing.At the DMV hearing dealing with the suspension of the defendant's driver's license the hearing officer erred in admitting the declaration of defendant's toxicologist asserting defendant's blood may have fermented resulting in a high blood alcohol content. However, the DMV did not receive a copy of the affidavit and notice to admit it into evidence ten days before the hearing. Failure to comply with the notice requirement precluded its admission and an objection by the DMV was not necessary to preserve the issue for review.id: 10598
Mandate against the DMV based on claimed invalidity of an out-of-state drunk driving prior conviction is not available.The trial court properly denied defendant's petition for a writ of mandate seeking to challenge the constitutional validity of the out-of-state prior drunk driving conviction. The Department of Motor Vehicles has neither the duty nor the power to pass on the validity of a prior conviction and mandate does not lie against the DMV for the purpose of determining the validity of a prior conviction.id: 10602
Officer's handwritten notes regarding the results of the intoxilyzer test were not hearsay and were properly admitted at DMV hearing.Appellant argued the Department of Motor Vehicles erroneously suspended his driving privileges where the agency relied on the officer's sworn statement indicating a breath test result of .128 and .129 and the intoxilyzer printout showing the same numbers because they were hearsay and introduced without proper foundation. However, the officer's handwritten entries recording the results of the breath test were not hearsay. Moreover, contrary to appellant's assertion, the DMV was not compelled to lay a Kelly-Frye foundation as a condition precedent for the admission of the intoxilyzer test results.id: 10606
Officer's statement relying on another officer's report was sufficient to establish defendant was the driver of the car for purposes of license suspension proceedings.The trial court erred in finding that an officer's sworn statement incorporating the sworn report of another officer was sufficient to establish that defendant was the driver of the car for purposes of the license suspension proceedings. The statement was admissible under Evidence Code section 1280, the public employee records exception to the hearsay rule.id: 10607
Officer's sworn report at DMV hearing including personal observations of the detaining officer was sufficient to prove defendant was the driver.Defendant was arrested for drunk driving. He argued that at the Department of Motor Vehicle hearing to suspend his driver's license, the evidence was insufficient to establish that he was in fact driving. However, the Highway Patrol Officer's sworn report qualifies under Evidence Code section 1280 as an admissible public employee record even to the extent that it reported the deputy sheriff's personal observations, and thus was sufficient alone to provide defendant was driving.id: 10608
Proceeding with drunk driving charges following the DMV license suspension did not violate double jeopardy.Defendants were charged in the municipal court with drunk driving. At the same time the Department of Motor Vehicles administratively suspended their drivers' licenses for the same conduct. The superior court erred in ordering the criminal charges dismissed because proceeding with the criminal charges after the licenses were suspended by the DMV did not violate double jeopardy principles.id: 10612
Provision that declares the driver's license of a four-time drunk driving offender shall be revoked for four years is mandatory.In 1987, the DMV revoked defendant's driver's license for four years pursuant to Vehicle Code section 13352, subdivision (a)(7), which requires license revocation upon a fourth drunk driving conviction. Defendant petitioned for a writ of mandate seeking an order requiring the DMV to consider and accept his application for reinstatement of his driver's license. The court granted the petition on condition that defendant enroll in a one-year program as section 13352, subdivision (a)(7) prescribed in 1987. The trial court erred in granting the writ because section 13352, subdivision (a)(7) imposed a mandatory duty on the DMV to revoke defendant's license for four years and not reinstate it until he completed an approved program.id: 10614
Rebuttable presumption contained in section 23152, subdivision (b) is applicable to DMV hearingsVehicle Code section 23152, subdivision (b) established a rebuttable presumption that a person's blood alcohol content at the time of driving was at least 0.08 percent if a chemical test given within three hours of the driving shows a blood alcohol content of at least 0.08 percent. The trial court erred in holding the rebuttable presumption contained in section 23152, subdivision (b) is inapplicable to DMV hearings. Since defendant submitted no evidence to rebut the presumption the DMV's driver's license suspension order was reinstated.id: 10615
Testing officer's sworn statement regarding the breath test was properly admitted as a public record and supported the DMV driver's license suspension.CHP officer determined that defendant had driven with a blood alcohol concentration of .13 percent. The officer submitted his sworn report to the Department of Motor Vehicles for the administrative proceeding regarding license suspension. The report stated the blood alcohol result was based upon the result generated by the breath testing instrument used by that officer to test defendant. Defendant objected to the sworn statement on hearsay grounds. However, the officer's sworn statement was a record of the event in question prepared by a public employee and was thus properly admitted at the DMV hearing under the official record hearsay exception pursuant to Evidence Code section 1280. Pursuant to Evidence Code section 664 the DMV can rely upon the rebuttable presumption that the officer regularly performed his duty.id: 10621
The fact that defendant was sentenced as a second time drunk driving offender did not alter the DMV mandatory duty of revoking his license after three offenses within seven years.Defendant was convicted of his third drunk driving offense. However, the court struck one of the priors and sentenced him as if he had only one prior. The court then ordered that his license be restricted as a probation condition. Vehicle Code section 13352, subdivision (a)(5) requires a revocation of the driver's license after a third drunk driving condition within seven years. Defendant argued that since he was sentenced as a second time offender the court should vacate the revocation order and issue the restricted license. However, the fact that he was sentenced as a second time offender did not alter the DMV's mandatory duty to treat him as a third time offender under section 13352, subdivision (a)(5) and revoke the license.id: 10622
There is no conflict between the DMV administrative license suspension provisions and the pre-existing second-offender probation provisions providing for license restriction.Respondent was convicted of drunk driving as a second offender. He argued there was a conflict between the administrative laws mandating suspension of driving privileges for second offenders (Vehicle Code sections 13353.2 and 13353.3, subd. (b)(2)) and pre-existing second-offender probation statutes providing for driver's license restrictions (sections 23165, 23166, subd. (b), 13352, subd. (a)(3)). However, when a second offender suffers both the administrative license suspension and the restriction pursuant to probation, the dispositions run concurrently. At the conclusion of the one-year suspended term, the remaining six month portion of the restricted term shall continue to run. Finally, imposition of the two licensure suspensions for one offense does not violate the proscription against multiple punishment.id: 10625
Defendant's arrest in her house two hours and fifteen minutes after the nearby accident was supported by reasonable cause.Evidence supported the trial court's finding there was reasonable cause to arrest defendant for drunk driving. Defendant's home was a relatively short distance from the accident. The accident occurred in a remote area, involved no injuries, and the responding officers were delayed by other incidents. Defendant admitted she was driving. She showed the usual signs of intoxication and denied drinking after the accident. Her arrest two hours and fifteen minutes after the accident and in the neighborhood where it occurred was not unreasonable as a matter of law.id: 10572
Defendant's intentional act of driving his car into two vehicles blocking his driveway was an accident supporting the order suspending his driver's license.Defendant argued that his drunk driving arrest was not lawful because the crime was not committed in the presence of an officer. The DMV argued it was lawful under Vehicle Code section 40300.5 which permits an officer to arrest a person involved in an auto accident when the officer has reasonable cause to believe the driver was under the influence of alcohol. There was no dispute that defendant intentionally drove his car into two vehicles and pushed them away from his driveway. This intentional act constituted a traffic accident within the meaning of section 40300.50.id: 10573
Determination in the criminal proceeding that the drunk driving arrest was unlawful did not preclude relitigation of the issue in the administrative proceeding.A determination in a prosecution that a defendant had been illegally arrested for driving under the influence did not preclude relitigation of the same question in the DMV's administrative proceeding to suspend the license. Such a dismissal is not the equivalent of an acquittal since there was no judicial determination in defendant's favor regarding the factual elements. Moveover, Penal Code section 1538.6, subd. (d), does not itself prohibit relitigation of the legality of the arrest in the administrative proceeding.id: 10574
Dismissal of drunk driving charges following a hung jury is not tantamount to an acquittal for purposes of reinstatement of driving privilege.Dismissal of criminal charges following a hung jury was not tantamount to an acquittal. Therefore, the trial court did not err in denying appellant's petition for a writ of mandate ordering the Department of Motor Vehicles to delete from its files reference to her driving with excessive blood-alcohol and suspension of her driver's license pursuant to Vehicle Code section 13353.2, subdivision (e).id: 10575
Dismissal pursuant to a plea bargain of the drunk driving charge is not an acquittal requiring reinstatement of driving privilege.Defendant's license was suspended under Vehicle Code section 13353.2, subdivision (a) after he was arrested for drunk driving. Dismissal pursuant to a plea bargain of the drunk driving charge is not an acquittal as contemplated by section 13353.2, subdivision (e) requiring reinstatement of the license. The court erred in concluding the dismissal of the charge was the equivalent of an acquittal as there must be a resolution of the drunk driving charge on the merits before the driver's license must be reinstated.id: 10576
DMV is not required to prove the lawfulness of a sobriety checkpoint unless the licensee raises the issue.The trial court granted a writ of mandate directing the DMV to reinstate defendant's driving privileges following her arrest at a sobriety checkpoint. The court reasoned the DMV failed to establish the lawfulness of the sobriety checkpoint by proving the eight factors set forth in <i>Ingersoll v. Palmer</i> (1987) 43 Cal.3d 1321. However, the DMV is not required to prove the lawfulness of the sobriety checkpoint unless the licensee raises the issue.id: 10579
DMV is not required to reinstate a driver's license if the person is found factually innocent of refusing to take a chemical test.The DMV does not have a mandatory duty to reinstate a person's driver's license suspended pursuant to Vehicle Code section 13353 if that person is later found factually innocent of a criminal charge of willfully refusing to take a chemical test.id: 10580
DMV need not prove that a person was actually driving at the time of the arrest in order to justify license suspension for failing to submit to a chemical test.Appellant argued he was not the driver at the time of the arrest and was therefore not required to submit to a chemical test. He claimed the DMV must prove that a person was actually driving a vehicle in order to justify suspension of the person's license for failing to submit to chemical testing under the implied consent law (Vehicle Code section 13353). However, the arresting officer need only have probable cause to arrest for driving under the influence before submission to chemical testing is mandatory.id: 10582
Drunk driver challenging the constitutionality of an out of state conviction must do so in the state of conviction and may not do so in a mandate proceeding directed against the DMV.Defendant's driver's license was suspended by the DMV pursuant to Vehicle Code section 13352, based on his drunk driving conviction in New York. He petitioned for a writ of mandate in the superior court to direct the DMV to set aside the suspension on the ground that the out of state conviction was invalid because he had not been advised of his rights prior to the guilty plea. However, defendant may not challenge the constitutionality of the out of state conviction in a mandate proceeding directed against the DMV. Instead, he must challenge the conviction in the out of state forum.id: 10586
Evidence of drunk driver's statement to the arresting officer was sufficient to support the finding that he was driving and justified the license suspension.The DMV suspended defendant's driver's license for driving under the influence of alcohol. He argued there was no evidence apart from hearsay in the officer's statement and the unsworn arrest report to show that he was driving or in control of the vehicle. However, defendant's statement to the officer, contained in the arrest report, that defendant was driving the vehicle constituted competent evidence under hearsay exceptions for public employee records and admissions by a party and this would be admissible in a civil action. Hence, this statement was sufficient to support the finding that defendant was driving. Defendant's alternate claim that there was no evidence of the time he was driving also failed since the evidence established the breath test was performed less than two hours after the radio call about the traffic accident.id: 10592
Evidence supported suspended license at DMV hearing notwithstanding the failure to record the time the intoxilyzer test was given.At the Department of Motor Vehicles hearing regarding suspension of defendant's driver's license for drunk driving, the only evidence submitted was the statement of the arresting officer detailing the detention, defendant's objective symptoms and performance on the field sobriety test, as well as the intoxilyzer test result reporting defendant's blood alcohol concentration. Defendant argued the evidence was insufficient because it did not state the time of the test and it did not establish his blood alcohol exceeded .08 percent at the time he was driving. However, the DMV made a prima facie showing at the hearing that defendant's blood alcohol exceeded .08 at the time of driving and the burden then shifted to defendant who presented no evidence. Evidence therefore supported the driver's license suspension.id: 10593
Evidence supported the trial court's finding to revoke the suspension of the alleged drunk driver's license where evidence was presented challenging the presumptive reliability of the breath tests and the DMV did not rebut this evidence.An officer administered three breath tests to a suspected drunk driver. After a third test produced a reading of .18 percent, defendant's driver's license was confiscated. At the review hearing the DMV submitted the officer's sworn statement which included the breath test results. Defendant then presented a computer-generated document entitled ADAMS Inquiry reflecting data on the tests including the fact that the second of the three tests was not valid. He argued the information undermined the presumed reliability of the tests. The DMV chose not to rebut the evidence. However, contrary to the DMV's claim the evidence was sufficient to rebut the presumption of reliability attendant to the breath tests results. Evidence supported the trial court's order to revoke the suspension and reinstate the driver's license.id: 10594
A conditional consent to a chemical test constitutes a refusal to submit to a test under section 13353.After being stopped for drunk driving defendant initially refused to submit to any test but later agreed to submit to a blood test only if administered by his personal physician. Defendant's conduct amounted to a refusal to submit to a chemical test within the meaning of Vehicle Code section 13353.id: 10545
A disappearing lawful arrest - one which is subsequently deemed only a detention - may support suspension of a driver's license.An arrest, valid when made, remains a valid arrest for purposes of an administrative per se license suspension, even though the driver is subsequently released pursuant to Penal Code section 849, subd. (b), with a certification that he or she had been detained rather than arrested.id: 10547
Alcohol screening device used to enforce zero tolerance law must be proven reliable but need not meet the standards of Title 17.The preliminary alcohol screening (PAS) device used to enforce the zero tolerance law need not comply with the standards set forth in title 17 of the California Code of Regulations. Nevertheless, the DMV has the burden of showing the PAS device was reliable. Reliability was not established in the instant case where the officer's testimony did not establish she was qualified and competent to administer the test, that it was properly administered, or the apparatus was in proper working order. (222)id: 10554
California Highway Patrol officer's reliance on the detaining officer's statement that defendant was weaving like a snake provided reasonable cause to believe defendant was driving while intoxicated for purposes of the DMV proceeding.The Department of Motor Vehicles suspended defendant's driver's license following an administrative hearing under Vehicle Code section 13558. Defendant was detained by a deputy sheriff who then called the California Highway Patrol and the CHP officer made the arrest. Defendant argued the only evidence in support of the essential finding that the officer had reasonable cause to believe defendant was driving while intoxicated, was the hearsay statement in the CHP officer's report that the deputy sheriff saw defendant weaving like a snake. However, the statement was not hearsay because the question was not whether defendant was driving under the influence but whether the officer had reasonable cause to so believe. The CHP officer's reliance on the sheriff's statement was reasonable and the statement constituted substantial evidence supporting the finding that the arresting officer had reasonable cause to believe defendant was driving while intoxicated.id: 10560
Computer printouts of chemical test results are admissible at DMV driver's license suspension hearings.Defendant challenged the use of unsworn laboratory computer printouts to establish the blood-alcohol level at the DMV hearing to uphold the suspension of his driver's license. However, Vehicle Code section 23158.2 does not require sworn chemical test results and the licensed laboratory computer printouts of the chemical test results at issue here constituted admissible hearsay at the administrative hearing.id: 10562
Court did not abuse its discretion in denying the motion to admit new evidence at a writ proceeding following the DMV hearing.Appellant's driver's license was suspended following a DMV hearing based on a drunk driving incident. He subsequently moved for a peremptory writ to overturn the suspension and filed a motion to present newly discovery evidence. However, appellant made no showing that the critical evidence was not available prior to the administrative hearing. The court did not abuse its discretion in rejecting new evidence offered for the first time in the writ proceeding.id: 10563
Court erred in reversing DMV's license suspension where the officer never actually saw the suspected drunk driver driving the vehicle.The court erred in finding that the administrative order suspending respondent's driving privileges was not supported by the weight of the evidence because the hearing officer had no evidence at the time that respondent was observed <U>driving</U> the vehicle. In the absence of any indication that there was a significant delay between the observation and the stop, and in view of the proximity between where the unusual driving was observed and the point where respondent was stopped and arrested, the hearing officer could rationally infer that respondent was driving in an inebriated condition shortly before the arrest.id: 10565
Court erred in ruling mandate lied against the Department of Motor Vehicles to determine the validity of an out-of-state drunk driving conviction.The trial court allowed a drunk driving defendant to collaterally attack his 1984 Arizona conviction by petition for writ of mandate under Code of Civil Procedure section 1085 which named the DMV as respondent. However, the DMV has no duty to determine the validity of his Arizona conviction for drunk driving.id: 10566
Defendant who appeared intoxicated while parked in the middle of a highway was properly arrested for drunk driving notwithstanding the vehicle's lack of movement.Defendant's vehicle was stopped in the number two lane of southbound Interstate 280 at 2:34 a.m. Defendant was asleep behind the wheel with his foot on the brake, the engine running and the gear in drive. The officer did not observe the vehicle move. Defendant exhibited signs of being intoxicated and was arrested after failing the field sobriety test. Normally, an arrest may not be made if the car is parked and the officer does not observe volitional movement. However, Vehicle Code section 40300.5 provides an exception if the parked vehicle is obstructing a roadway. The officer properly arrested defendant who displayed symptoms of intoxication in the vehicle that was obstructing an interstate highway.id: 10571
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
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Geofence search warrants were impermissibly overbroad and violated the particularity requirement of the Fourth Amendment but the good faith exception applied and suppression was not required.Defendants were identified as murder suspects after a geofence search warrant directed to Google revealed cell phones signed in to Google accounts connected to them were in several of the same locations as the victim on the day of the murder. The geofence warrants complied with the California Electronic Communications Privacy Act of 2016 (Cal ECPA) but they violated the particularity requirement of the Fourth Amendment and were impermissibly overbroad as the warrants placed no meaningful restrictions on the police search. However, suppression of the evidence was not required where the officers reasonably relied on the new geofence warrant in good faith.id: 27850