Orange County DUI Lawyer
When a
person is arrested for DUI in Orange County, or anywhere in California for that
matter, the officer will confiscate their driver’s license and give them a
temporary. The driver, or the driver’s Irvine DUI Lawyer, must then call the Driver Safety office of the DMV within
ten days of the arrest to request a DMV
hearing (APS hearing). If
neither the driver nor the driver’s DUI Attorney makes that call, the DMV will automatically suspend the
driver’s driving privileges. The length of the license
suspension will
depend on whether the driver has any prior DUI convictions and whether the
driver refused to take a blood test or breath test
as required by California Vehicle Code Section 23612.
If the
driver, or the driver’s DUI Attorney in Orange County does set a DMV hearing, then there
is a chance to avoid a license suspension. DUI hearings are, by all accounts,
very difficult to win. First of all, they are civil proceedings, not criminal,
so the driver is not entitled to a jury. A DMV hearing officer sits as both
prosecutor and judge. Also, the burden of proof that the DMV must meet is much
lower than in a criminal court. In court, the level of proof is proof beyond a
reasonable doubt—the highest burden in law. At the DMV the burden of proof is a
“preponderance” of the evidence. This means that the DMV must only prove that
it is more likely than not that all the elements are met before the DMV can
suspend the driver’s license.
driver, or the driver’s DUI Attorney in Orange County does set a DMV hearing, then there
is a chance to avoid a license suspension. DUI hearings are, by all accounts,
very difficult to win. First of all, they are civil proceedings, not criminal,
so the driver is not entitled to a jury. A DMV hearing officer sits as both
prosecutor and judge. Also, the burden of proof that the DMV must meet is much
lower than in a criminal court. In court, the level of proof is proof beyond a
reasonable doubt—the highest burden in law. At the DMV the burden of proof is a
“preponderance” of the evidence. This means that the DMV must only prove that
it is more likely than not that all the elements are met before the DMV can
suspend the driver’s license.
However, one
way to prevail at the DMV hearing is for your Huntington Beach DUI Lawyer to find substantial errors in the DS367, which is the
mandatory report that an arresting officer must fill out and send to the DMV.
Typically, this form is the foundation of the DMV’s case against the driver
and, under relaxed civil rules, this form can be admitted into evidence even
though it is “hearsay” evidence. Such evidence is NOT admissible in criminal
court. The DMV relies on an exception in the evidence code, section 1280(c),
known as the Official Records Exception. Under this exception to the hearsay
rule, official records of an agency can be admitted into evidence if they are
trustworthy. In order to establish the trustworthiness of the DS367 the DMV
relies on Evidence Code Section 664, which says that it is presumed that an
official duty has been regularly performed.
Thus, since an arresting officer has an official duty under Vehicle Code
Section 13380 to faithfully record the information of a DUI arrest on a DS367,
the DMV relies on the official duty presumption to presume that the DS367 is
reliable and thus admissible under the Official Records exception.
way to prevail at the DMV hearing is for your Huntington Beach DUI Lawyer to find substantial errors in the DS367, which is the
mandatory report that an arresting officer must fill out and send to the DMV.
Typically, this form is the foundation of the DMV’s case against the driver
and, under relaxed civil rules, this form can be admitted into evidence even
though it is “hearsay” evidence. Such evidence is NOT admissible in criminal
court. The DMV relies on an exception in the evidence code, section 1280(c),
known as the Official Records Exception. Under this exception to the hearsay
rule, official records of an agency can be admitted into evidence if they are
trustworthy. In order to establish the trustworthiness of the DS367 the DMV
relies on Evidence Code Section 664, which says that it is presumed that an
official duty has been regularly performed.
Thus, since an arresting officer has an official duty under Vehicle Code
Section 13380 to faithfully record the information of a DUI arrest on a DS367,
the DMV relies on the official duty presumption to presume that the DS367 is
reliable and thus admissible under the Official Records exception.
Complicated
right? Of course it is. Even some DUI Lawyers in Orange County don’t fully grasp the complexities
of this. But, the bottom line is, if your DUI LAWYER can find substantial
errors in the DS367, then the official duty presumption is rebutted. In that
case, it now becomes the burden of the DMV to prove that the information in the
DS367 is reliable before it can be admitted under the Official Records
exception. If they cannot, then they cannot rely on the hearsay document to make
their case against the driver. In that case, if the DMV has not subpoenaed the
officer to testify at the DMV hearing—as they almost never do—then the DMV
should grant a “set aside” whereby the suspension is set aside and the driving
privileges of the driver preserved. The driver still faces a possible
suspension however, if the driver pleads guilty to a DUI in court. However, if
the driver’s Orange County DUI Attorney can get the case reduced to a wet reckless, then the driver can avoid a
suspension entirely.
right? Of course it is. Even some DUI Lawyers in Orange County don’t fully grasp the complexities
of this. But, the bottom line is, if your DUI LAWYER can find substantial
errors in the DS367, then the official duty presumption is rebutted. In that
case, it now becomes the burden of the DMV to prove that the information in the
DS367 is reliable before it can be admitted under the Official Records
exception. If they cannot, then they cannot rely on the hearsay document to make
their case against the driver. In that case, if the DMV has not subpoenaed the
officer to testify at the DMV hearing—as they almost never do—then the DMV
should grant a “set aside” whereby the suspension is set aside and the driving
privileges of the driver preserved. The driver still faces a possible
suspension however, if the driver pleads guilty to a DUI in court. However, if
the driver’s Orange County DUI Attorney can get the case reduced to a wet reckless, then the driver can avoid a
suspension entirely.
If you are
facing DUI charges call The Law
Offices of EJ Stopyro at (949)
559-5500 for a free and confidential consultation with an experienced DUI Lawyer in Orange County. You can also find us online at www.ejesquire.com. We have offices at 32072
Camino Capistrano, 2nd floor, San Juan Capistrano, CA 92675 and at
1901 Newport Blvd., Suite 350, Costa Mesa, CA 92627.
facing DUI charges call The Law
Offices of EJ Stopyro at (949)
559-5500 for a free and confidential consultation with an experienced DUI Lawyer in Orange County. You can also find us online at www.ejesquire.com. We have offices at 32072
Camino Capistrano, 2nd floor, San Juan Capistrano, CA 92675 and at
1901 Newport Blvd., Suite 350, Costa Mesa, CA 92627.
No comments:
Post a Comment