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Set Aside, Client Had 0.10% BAC, Scrivener Error Issue

Our client, age 51, has just lost his father and was feeling a bit down.  He went to a bar in Long Beach and sat alone, watching some live music and enjoying two or three beers, along with a hamburger.  He was not worried about time and did not leave the bar until just after midnight.

As he was heading home, he allegedly was speeding and ran three stop signs.  A Long Beach Police Department officer pulled him over and then noticed the odor of alcohol and our client’s allegedly slurred speech.

The officer asked our client to perform some field sobriety tests, which our client tried to perform.  The officer then asked our client to submit to a preliminary alcohol screening (PAS) device test at the scene and our client said no.

The officer then arrested our client.  It was our client’s first DUI or arrest of any sort.  He was an engineer and a musician on weekends.

At the station, our client submitted to a breath test and his breath measured 0.10% blood alcohol content (BAC).  He was released a few hours later.

The client then called Greg Hill and Associates and described what had happened to him.  He then asked what would happen in court and at the DMV.  Greg answered all his questions and the client retained Greg Hill & Associates.

In discussing the DMV hearing, Greg explained that on April 15, 2022, the Second Appellate District Court issued its ruling in California DUI Lawyers Association v. California Department of Motor Vehicles (2022 DJDAR 3721), addressing the structural and procedural format of the hearings. 

The California DUI Lawyers Association, or CDLA also argued that Vehicle Code § 14112(b), allowing for the DMV hearing officer to simultaneously be both an advocate for the DMV and an adjudicator (judge) was unconstitutional as a violation of due process by permitting the DMV to combine the advocacy and adjudicatory roles into one hearing officer.  In other words, the hearing officer could not be neutral if it also was trying to present evidence to suspend the driver’s license.

Greg explained to the client that the Secondo Appellate District court (in downtown Los Angeles) agreed, finding that the lower court’s ruling requiring actual evidence of bias to show a violation constituted a legal error as such evidence was unnecessary.  The statute’s provision allowing such a dual role created an unacceptable risk of bias and was itself a due process violation.

So, Greg explained that the DMV hearings were now being reorganized with a DMV advocate present who was actually not an attorney and Greg anticipated that this arrangement would be challenged eventually as improper.

Greg Hill & Associates then obtained the police report from the DMV for the DMV hearing.

Greg noticed that the arresting officer was apparently confused about how to write 12:37 a.m., the time when the client was stopped.  The arresting officer wrote the time as 12:37 p.m. (which means 37 minutes after noon time).  The arresting officer also wrote that the arrest was at 12:51 p.m., which repeated the error.

The same officer then wrote that the breath test at the station was administered at 1:47 a.m.

Quite literally, according to the documents, this meant there was a 13 hour and ten minute delay in the breath test, which was more than the three hours set by Vehicle Code § 23152(b) for a presumption to apply that the BAC of any test administered within three hours was the presumed BAC of the driver when driving.

At the hearing, Greg pointed this out and, luckily for the client, there was no police officer called to the hearing to testify to correct his “scrivener’s error.”  So, the DMV had to rule without the report being corrected.

Greg then argued that when a discrepancy on the police report is incapable of being refuted independently as a scrivener’s error or otherwise, a set aside of the license suspension for our client would be proper. 

In Manning v. DMV (4th App. Dist., 1998) 61 Cal. App. 274, the date of the blood sample transfer from the police to the lab was after the date of the blood test.  This meant that the blood test could not have been of Mr. Manning’s blood.  As the Fourth Appellate District stated:
At the administrative per se hearing Manning objected to the admission of the forensic report on various evidentiary grounds. Relevant to this appeal, he pointed out that the first forensic test was supposedly performed by Debra Eck, a forensic alcohol supervisor, on October 25, 1993. However, the computer printout states the urine sample was not submitted to the laboratory until the following day, October 26. The DMV did not offer any evidence to rebut Manning's claim, and thus the question is whether a forensic report, which discloses a patent physical impossibility on its face, " 'is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs.' " (Lake v. Reed (1997) 16 Cal.4th 448, at p. 467.) We don't think so. Even in the relaxed evidentiary world of administrative per se hearings, a forensic report must reflect some relationship with the physical world we know. fn. 2
Footnote 2 stated: “The Attorney General concedes there is a "discrepancy" in the dates. Because the dates are part of the computer printout, the logical inference is the test results are someone else's, not Manning's.”

The court then said, “It would be a sad day indeed if, as the Attorney General seems to urge, the rebuttable presumption of Evidence Code section 664 could overcome a patently flawed test result and ascribe to one licensee the results of another licensee's chemical test.”

Therefore, Greg argued, the DMV had to set aside the suspension of our client’s license and reinstate his driving privileges.  The DMV agreed and lifted the suspension on our client’s license.  He was extremely happy because he drove a lot for work.

For more information about DMV Hearing issues for DUI, please click on the following articles:
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