It is quite unusual lately to win at an admin per se hearing for DUI at the DMV, especially on the merits. However, when this fortuitous event takes place, our client often assumes the criminal case in court for DUI will be dismissed, or at least it a plea bargain will be offered that avoids the stigma of a DUI conviction.
We caution that such optimistic hopes often are not realistic, although in some cases they are. Indeed, if one does win at the DMV after arguing that the blood alcohol level was below 0.08% when the driver was last driving, or that the traffic stop was improper, or that the arresting officer violated Title 17, the prosecutor may not care at all or the prosecutor may consider this.
If the legality of the stop was ruled improper (very rare for the DMV to rule in this manner) and the suspension set aside, and one advises the prosecutor of this, the prosecutor could simply ask you to file a motion to suppress in court for the judge to evaluate it anew.
Alternatively, the prosecutor may simply offer to resolve the case for reckless driving (Vehicle Code § 23103 pursuant to Vehicle Code § 23103.5), an exhibition of speed (Vehicle Code § 23109) or even public intoxication (Penal Code § 647(b)), which our office has been lucky enough to accomplish more than once.
When the issue is whether the client’s BAC was under 0.08% when he or she last drove and the DMV agrees it was under this limit, and the prosecution appears willing to agree to this, a savvy defense attorney can the propose what is called a “Helmandollar dispo.” Helmandollar v. DMV (1992) 7 Cal.App.4th 52.
Prosecutors are generally reluctant to agree to such a plea bargain, but some are amenable to this and if that is the case, one should be deliberate in how it is accomplished. In such a plea bargain, the client agrees to plea guilty or no contest to reckless driving or an exhibition of speed (but not Vehicle Code § 23152(a)), for example. Next, there is an agreement with the prosecutor that the judge will sign a judicial finding, specifically based on the facts of the case (it is best to state the date of the arrest, the defendant’s driver’s license number, the DR number involved and the defendant’s date of birth), that defendant is not guilty of violating Vehicle Code § 23152(b) (“Driving with a BAC of 0.08% or higher).
The “not guilty” finding by the judge is effectively an acquittal within the definition of Vehicle Code § 13353.2(e) and consequently allows the defendant to demand that the DMV set aside a license suspension. Claxton v Zolin (1992) 10 Cal.Rptr.2d 319, 8 Cal.App.4th 553 and Gikas v. Zolin (1993) 6 Cal.4th 841.
The judicial finding can even be titled “Judgment of Acquittal” for the judge to sign. However, if that is the case, defense counsel will want to be well-prepared to explain to the judge the intended set aside of the license suspension and why, in this particular case, the facts support the judge allowing this. It will be prudent to let the judge know the facts of the case foremost, but also the equities that support this, i.e. the defendant is a commercial truck driver and losing his license would be fatal to his or her future as a commercial driver, or that the defendant’s financial livelihood (and perhaps his or her family) is dependent upon him never missing a day of driving. This signed order should then be sent to the DMV’s Mandatory Actions Unit in Sacramento for immediate set aside of the suspension.
In closing, while this article has spent considerable time discussion a Helmandollar dispo, it is rarely agreed upon by prosecutors, so it is wise not to expect such an agreement, but one should be grateful if it is so agreed upon in your case.