When a police officer, CHP officer of a deputy sheriff arrests someone for DUI, the officer takes the driver’s California driver’s license and gives them a temporary license. The driver, or their Lake Forest DUI Lawyer, must call the DMV schedule a DMV hearing (Administrative Per Se hearing) within ten days of the arrest. If no hearing is scheduled, the license suspension becomes automatic. If a DMV hearing is scheduled, then the driver can continue to drive until and unless their Orange County DUI Lawyer loses the DMV hearing or the driver pleads guilty to drunk driving in the Orange County court.
The DMV hearing can be held telephonically or in person. At the DMV hearing, there are three issues: 1) Did the cop have reasonable cause to believe the driver was driving under the influence of alcohol; 2) Was the driver lawfully arrested; and 3) Was the driver actually driving with a blood alcohol of 0.08% or more. These three issues can provide your Westminster DUI Lawyer with fertile ground to win the hearing.
Although there are many defenses that a Costa Mesa DUI Lawyer can raise at the DMV hearing, this blog will focus on the blood evidence. At the DMV hearing, the DMV hearing officer will have a copy of the arrest report, the client’s driving record, the DS 367 (an arrest report specially used by the DMV), and the forensic alcohol report. This last item is usually a one-page report containing the driver’s information (name, date of birth, etc.), the agency that made the DUI arrest, the time of the DUI arrest, the date and time of the blood draw, two results of the blood alcohol analysis, (each sample must be tested twice), and the date and time each analysis was conducted.
Typically, at a court hearing, a piece of paper with this information would not be allowed into evidence because it is “hearsay”. Hearsay is any statement that is NOT made at the hearing. So in court if the DA tried to introduce the forensic alcohol report, the driver’s Laguna Niguel DUI Lawyer would object on grounds of hearsay. The Fullerton DUI Lawyer’s objection would be sustained and the District Attorney would have to have the forensic analyst come into court and personally testify. At the DMV however, the rules of evidence are “relaxed” since it is a civil proceeding and not a criminal one. Thus, at the DMV, these forms are considered to be “public records”. Public records are exempt from the hearsay exclusionary rule as long as: 1) they are made by and within the scope of duty of a public employee; 2) they are made at or near the time of the act, condition or event (the DUI arrest in this case); and 3) the sources of information and the method and time of preparation were such as to indicate its trustworthiness.
So, at the DMV hearing, the only evidence of what the driver’s actual blood alcohol level was is usually this one-page forensic alcohol report. Laguna Beach DUI Attorneys have found that one way of successfully attacking this evidence is to show that the forensic report was NOT made at or near the time of the DUI arrest. In the case of Downer v. Zolin, 34 Cal.App.4th 578, the forensic analyst didn’t test the blood until five days after the driver was arrested for DUI. In that case the driver’s Anaheim DUI Attorney objected to the report on grounds of hearsay. The DMV overruled the DUI LAWYER’s objection and the driver appealed. The court of appeal held for the driver—finding that blood tested five days after the DUI arrest was not “at or near the time of the DUI arrest” as required by the public records exception found at section 1280 of the California Evidence Code. The suspension was ordered “set aside”.
If you are facing a license suspension after being arrested for a DUI call The Law Offices of EJ Stopyro at (949) 559-5500 for a free and confidential consultation with an experienced Orange DUI Attorney. You can also visit our website at www.EJEsqiure.com. We have meeting offices throughout Orange County and our main office is located at 32072 Camino Capistrano, 2nd floor, San Juan Capistrano, CA 92675
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