ID YOU EXPERIENCE A BLACK AND WHITE WELCOME OVER THE LABOR DAY ’23 WEEKEND? A lot of your friends and family did. This was because we partied and were more under the influence then we realized. We celebrated going out after Covid and surviving Hurricane Hillary last month.
Most people incorrectly believe they have to be drunk for a DUI. That is a mistake. You just have to be Under the Influence, and depending on your weight, and what you ate, that could occur after a few 1 oz drinks. Remember everything the police do is to gather evidence against you to prove you were DUI. The Field Sobriety Test is designed for the driver to fail. Likewise, as to the first two questions: Do you know why I stopped you? and Did you have anything to drink? Just remain silent and explain your lawyer Dale Gribow (760 837 7500) asked you not to answer any questions until you contacted him for an ok…and then you will be happy to answer any questions.
So now you have to deal with DMV, and remember you have to call them within 10 days of your arrest, or your license is suspended on the 31st day. It is important to understand there is Difference Between THE DMV PER SE, LICENSE SUSPENSION HEARING and COURT.
There are two different entities that are triggered when you get a DUI. The Court is only one of them. The other entity is DMV, which is an administrative agency and they do not follow the Rules of Evidence as a Court would, or should. The DMV Hearing Officer (employed by DMV), does not have any legal training. S/he is both the Presiding Judge and the Prosecutor. Thus s/he rules on their own objections as well as ours.
The DMV Hearing is a Per Se hearing, and if you have a .08 or higher, you are PER SE “GUILTY”, IN THE EYES OF DMV. By statute, DMV is black and white…too. The hearing officers have no authority to negotiate or extend courtesies. Having been a good citizen, does not come into play.
California has two types of DUI, PER SE- IF OVER .08, AND DUI’S BASED ON IMPAIRMENT. The difference between the two is how the prosecution proves you were “Under the Influence.” To be convicted of a per se DUI, the prosecution (DA or DMV) must prove you drove with an amount of alcohol in your system that exceeded the legal limit, ie .08…although Indio DA’s will file an .07 reading.
IMPAIRMENT DUI’S, on the other hand, require proof that the driver’s mental or physical abilities were actually affected by the drugs or alcohol ingested. However, if you register a BAC (Blood alcohol content) of at least 0.07 percent, or anything closer to 0.08, the prosecutor could claim that the passage of time has caused your BAC to fall, and that the alcohol level in your blood was actually above the legal limit when you were driving.
The DMV hearing is conducted like a miniature trial, but without the jury, and with somewhat different rules of evidence. The legal defenses tend to be more “technical” than in court, with procedure and bureaucratic errors often the grounds for a “set-aside” of the suspension. Testimony can be produced by both sides, although the hearing officer usually only produces documents, such as police reports, lab reports and the officers sworn affidavit.
Thus, the overwhelming majority of DMV cases are won by the DMV (98%) IF THE READING IS .08 OR MORE. The outcome of the Court proceedings does not necessarily affect the outcome of the DMV Hearing. Once again, the DMV hearing is an administrative per se hearing where you are “per se” guilty, until you prove otherwise.
This Ad Per Se hearing is based on the implied consent law (which was on your CDL test), which says any person driving in California is “presumed” to impliedly consent to a chemical test if they are suspected of Drunk Driving. It would thus seem there is a DUI exception to the Constitution. Initially there appears to be a lack of “Due Process” and the absence of a “Presumption of Innocence”. This arguably also appears to constitute “double jeopardy”, in that the driver is charged with a criminal offense and punished in court, and then is accused in a separate processing (DMV)… and punished again with a license suspension.
The courts logic is the Court is criminal and DMV is administrative. In other words, the license suspension is simply an “administrative” sanction, and not a punishment
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Next week we will discuss the Hearing Officer’s reaction to “I have a clean record”!
Dale Gribow (760 837-7500) is a recognized and distinguished Palm Desert Trial Attorney, awarded Top Lawyer by PS Life, Inland Empire Magazine, Martindale Hubbell (the most respected national rating publication), 10.0 Avvo, 5 Star Google, Top 100 Lawyers etc. He applies his 35+ years of extensive expertise protecting your constitutional rights, when you have been in an Accident or received a DUI.
