Facts About DMV Administrative Per Se Hearing Actions

There are several grounds for a person to be served with an Administrative Per Se Suspension (APS) Order—They are as follows:

• Drives with a 0.01% or higher BAC while under 21 years of age. VC § 13353.2(a)(2).
• Drives with a 0.01% or higher BAC while on DUI Probation. VC §§ 23154 and 13353.2(a)(4).
• Drives with a 0.04% or higher in a commercial vehicle. VC §§ 13557(b)(2)(C)(iv) and 13353.2(a)(3).
• Drives with a 0.08% or higher BAC. VC § 13353.2(a)(1).
• Refuses to submit to or complete a chemical test pursuant to VC § 13353, or P.A.S. (“Preliminary Alcohol Screening”) test if under 21 or then on DUI probation pursuant to VC § 13353.1.

The first thing an experienced and knowledgeable DUI Defense Attorney must do is review the DMV’s discovery to determine the potential or possible issues and spot the applicable defenses. This requires learning the extensive case law associated with the different types of suspension action one may be fighting: a "standard" DMV APS case, a Zero Tolerance Case, (whether as a result of being DUI probation or by virtue of one's age, i.e., Under 21 actions), or an alleged Refusal/Forced Blood action, which now requires a warrant prior to being able to be legally withdrawn.

Then a subpoena duces tecum must be served and the evidence obtained for an experienced DUI Defense Lawyer to review to determine whether any legal and/or factual defenses exist in your DUI case.

• Review subpoenaed evidence—patrol videotapes (PVS/MVS/MVARS), digital audio recordings (DAR), CAD and/or Dispatch Logs for any additional issues and/or legal or factual defenses
• One should use the DMV APS hearing process to issue subpoenas and/or subpoenas duces tecums on the arresting agency and the crime laboratory for relevant and material evidence and/or testimony

Determine whether you should subpoena any witnesses, like the officers, the crime laboratory, a defense expert, or even the licensee, if necessary.

Did the officer have reasonable cause to believe that the licensee was driving in violation of CVC 23152, 23153, 23136?

Was the licensee lawfully Arrested?

This element requires a sufficient showing of probable cause to arrest

Was the licensee driving with a blood alcohol level of 0.08% or more?

The DMV must prove the following issues at a chemical test refusal hearing:

• The peace officer had reasonable cause to believe that the person had been driving a motor vehicle in violation of CVC §23136, 23140, 23152, or 23153;
• The person was placed under arrest or, if the alleged violation was of CVC §23136 or 23140, the person was lawfully detained;
• The person was advised that a refusal would result in a suspension or revocation of the driving privilege;
• The person refused or failed to complete the chemical test or tests after being requested to do so by a peace officer

The DMV must prove the following issues at zero tolerance action hearings:

• That the peace officer had reasonable cause to believe the person had been driving a motor vehicle in violation of CVC § 23136, 23140, 23152, or 23153;
• That the person was placed under arrest or, if the alleged violation was of 23136, that the person was lawfully detained;
• That the person was driving a motor vehicle under any of the following circumstances:
• When the person had a 0.08% or higher.
• When the person was under 21 and had a 0.05% or higher.
• When the person was under 21 and had a 0.01% or higher, as measured by a preliminary alcohol screening test, and/or other chemical test.
• Or, as included by Vehicle Code Section 23154, those who were then on DUI Probation and driving with a 0.01% or greater ,as measured by a preliminary alcohol screening test, and/or other chemical test.

As stated, this is Part I of a series designed to address the issues and defenses an experienced and qualified DUI Attorney can pursue in formulating defenses against a California DUI charge.

If you were arrested for DUI in California, contact Peter F. Iocona and one of the DUI Defense Lawyers from The SoCal Law Network today for a free DUI Consultation.