Our client, age 24 and a truck driver for a local defense contractor, was stopped at a DUI checkpoint on Hawthorne Boulevard in Torrance. He was returning to his home in Compton after a night of partying in Hermosa Beach with friends.
The Point of This Summary: When a police officer commits multiple significant errors in recording the required information for a valid arrest, sometimes the DMV will recognize that this means there is not a preponderance of credible and reliable evidence to suspend a client’s driving privileges. In this case, the DMV recognized this, much to our client’s satisfaction.
Our office, as part of our standard approach to any DUI checkpoint case, first verified that the police provided proper notice to the public that it would conduct such a checkpoint. Here, proper notice was completed.
Once stopped, our client was asked to perform field sobriety tests at the scene and, according to police, failed each test.
In our experience, this is not unusual and it is often difficult to rebut without a video recording of the test. Here, no video was taken of the tests.
In reviewing a report summarizing a client’s performance on field sobriety tests, we focus on just three tests that the National Highway Safety Administration have studied and found are indicative of impairment due to alcohol. They are the Horizontal Gaze Nystagmus test, the One Legged Stand test and the Walk and Turn test. However, we find that many police officers find one failure of one aspect of the test as meaning our client failed the test. Many officers also conclude that a client’s lack of balance, for example, could only be attributed to alcohol when there is a an alternative explanation that would cause the client to fail the test even if sober.
Here, our client then provided a breath sample at the scene, supposedly registering a 0.17%and 0.18% blood alcohol content (BAC). The officer operating the preliminary alcohol screening (PAS) device, however, failed to document whether he continuously observed our client for fifteen minutes prior to administering the test as required by section 1219.3 of Title 17 of the California Code. See also Sandra Molenda v. DMV
(2009, 6th App. Dist.) 172 Cal.App.4th 974.
The officer also failed to write down the serial number of the device or its make and model, all required by the Age 21 and Older Officer Statement (DS-367) to comply with DMV standards.
In our brief to the DMV for our client, we pointed out such problems with the evidence. We also argued that while the burden of proof in a DMV here is only preponderance of the evidence, the evidence that is relied upon must still be credible and reliable. When an officer makes multiple errors in his documentation, the cumulative effect must be that the whole of the documents must be looked upon with skepticism. Here, the DMV agreed, reinstating our client’s license.
This was a tremendous relief to our client, as if he suffered a suspended license, he would have lost his job, a job that he had for six years since graduating from high school.
In looking back at this ruling, we caution the reader that these seemingly same arguments have been made many times without success. For this reason, many attorneys regard the DMV hearing for a DUI as unpredictable and even not worth fighting. We disagree, as we view each client individually. It is the client’s one and only case. We therefore vigorously defend each case at the DMV like our own. After all, one’s driving privileges are often the most important thing in jeopardy in a DUI.
For more information about field sobriety checks and DMV Hearings in general, click on the following articles:
- What Do DUI Field Sobriety Tests (FST’s) Actually Show?
- What Is a DMV Hearing for a DUI?
- I Lost My DMV Hearing for My DUI- Now What?
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