DMV Hearing Challenges
No Reasonable Cause to Believe Driver Under the Influence
The first issue in an admin per se hearing is reasonable cause. The officer must have: “Reasonable cause to believe the person was under the influence of alcohol and/or drugs” in violation of Vehicle Code Sections 23140, 23152 and 23153.
The second sub-issue of reasonable cause is whether there is reasonable cause to believe the person was under the influence of either alcohol or drugs or a combination of both. The officer must have reasonable cause, not proof, that the person was under the influence while driving.
Field sobriety tests are coordination tests which include various physical and or verbal exercises. A peace officer normally requests these tests to be performed to help the officer determine whether the person is under the influence. These tests must be explained accurately and are often poor indicators of the influence of alcohol on a driver.
No Probable Cause to Arrest
Probable cause to arrest, compared to probable cause to stop, requires the officer to have more facts to show that the person has been driving while intoxicated. More facts are required because an arrest is greater interference with the privacy and freedom of the driver.
In determining whether the police had probable cause to arrest an individual for DUI, we consider whether, at the moment of the arrest, the police had sufficient information, derived from a reasonably trustworthy source of facts and circumstances, sufficient to cause a prudent person to believe that the suspect was driving under the influence. Beck v. Ohio (1964) 379 U.S. 89,91.
Determining whether an officer had cause to arrest requires two analytically distinct steps, each with its own standard of review. First, the court ascertains when the arrest occurred and what the arresting officer then knew; second, the court decides whether the officer’s knowledge at the time of arrest constituted adequate cause.
No Probable Cause to Stop
Officers must have Probable Cause to pull a motorist over initially. A Motion to Suppress Evidence is an aggressive motion that can be filed to try and have charges dismissed in Court. The same challenge can be made at a DMV hearing. It is legal for a person over the age of 21 to drive a motor vehicle with measurable amounts of alcohol in their system.
Field Sobriety Tests Were Performed Satisfactorily
Often Field Sobriety tests are given and motorists perform them to the best of their ability. Such tests may include HGN (Horizontal Gaze Nystagmus-follow the pen or light), Hand Pat Test, Alphabet or Counting exercises, walking a line, Standing on One Foot and numerous others. Field Sobriety tests can be challenged and may be insufficient to show impairment from alcohol.
The Breath, Blood & Urine Test Are Not Reliable
Similarly, the PAS Device (Preliminary Alcohol Screen) and the Blood, Breath or Urine test all have their pitfalls and may be discredited. Under Title XVII, alcohol results are only reliable if certain laws and regulations are followed. Sometimes violations of Title XVII by Officers result in inaccurate Blood Alcohol results. Sometimes the PAS Device or Breathalyzer are not working properly, malfunction, lack maintenance or are prone to high readings.
Alcohol Test Results Inadmissible for Lack of Foundation
The officer, in the DS 367, always states “I am qualified to operate this equipment and that the test was administered pursuant to the requirements of title 17 of the California Code of Regulations.” The statement from the officer is qualified, in the DS 367, does not include a statement he was trained by a licensed laboratory as required by title 17.
Most times, there is no evidence the machine was maintained by a licensed forensic laboratory approved for this machine. There is no evidence the officer was trained on this machine by the laboratory licensed for this machine and that he followed the procedures approved by the State for this laboratory.
DUI Counsel Can Challenge the Evidence at a DMV Hearing and Stop Your License Suspension
Reach out and contact our Beverly Hills DUI lawyer and call 310-246-3900 to restore your driving privileges.