07th June 2006
"Davenport" Issues at DMV Hearings
The Davenport case holds that the arresting officer's written statement is sufficient to support the DMV's suspension of the defendant's driver's license. The Davenport court held that the officer has a duty to admin...
07th June 2006
"Per Se": 23152(b)
In order to be convicted of a DUI, the prosecutor must prove beyond a reasonable doubt that the defendant was driving under the influence of alcohol. The types of evidence which normally support this charge are: driving pattern, p...
07th June 2006
DMV and court: two separate processes.
When someone is charged with a DUI offense, there are two separate battles to fight: the DMV and the criminal court case. The DMV will suspend driving privileges within 30 days of an arrest for driving with an a...
07th June 2006
"Downer" issues in DMV Hearings
The Downer case dealt with California Evidence Code section 1280, the official records hearsay exception. Hearsay involves any statement made outside of court, offered to prove the truth of the matter asserted. Forensi...
07th June 2006
DUI Elements: Alcohol
To obtain a conviction for driving under the influence, the prosecution must prove that the defendant drove a vehicle while under the influence of any alcoholic beverage.
Specifically, the elements are:
§ Driving: The ...
07th June 2006
"Driving"
"Driving" is one of the required elements of a DUI offense. Driving requires "volitional movement of a vehicle." In everyday usage the phrase, "to drive a vehicle," is understood as requiring evidence of purposeful, actual movement of a vehi...
07th June 2006
How does Evidence Code Sec. 664 apply to DMV Hearings
California Evidence Code Section 664 shifts the burden of proof to the DMV licensee to establish the nonexistence of one, or more, of the foundational requirements with regard to the police officer'...
07th June 2006
How does Evidence Code Sec. 1280 apply to DMV Hearings
A police officer's statement, contained in a police report, is hearsay. However, California Evidence Code Section 1280 allows the statement in as an exception to the hearsay rule. Section 1280,...
07th June 2006
How can breath tests be challenged at the DMV
This is a work in progress….
Review the maintenance records of the breath machine used. During the discovery process, request a copy of the so-called "ADAMS Inquiry" which is a computerized printout fro...
07th June 2006
Pros and cons of in-person vs. telephonic DMV Hearings
The Administrative Per Se (APS) hearings are held in the DMV Driver's Safety Office nearest to the location of the arrest. The APS hearings are run by DMV employees, called hearing officers. The ...
07th June 2006
"Alcoholic Beverage"
In order to be convicted of a California DUI or drunk driving (driving while impaired by alcohol, or under the influence of alcohol), it must be proven beyond a reasonable doubt that the person was under the influence of an alcoholic...
07th June 2006
Standard of proof in DMV Hearings
The standard of proof at DMV hearings is the preponderance of the evidence standard. This level of proof is required in most civil cases, which DMV hearings can be likened to, as opposed to the criminal court trial wher...
07th June 2006
DUI and Motorcycles
Alcohol intoxication is a leading factor in motorcycle accidents and fatalities. Law enforcement officers have been trained to identify driving patterns that indicate a probability that a motorcyclist is driving while intoxicated. ...
07th June 2006
Special Considerations in Drug Cases
Diversion from criminal drug charges entails navigating the intricacies of Prop. 36 or deferred entry of judgment (DEJ), both of which divert from criminal prosecution only people charged with simple possession or b...
07th June 2006
Possession of Precursors (Meth or PCP)
Not only is it illegal to possess methamphetamine or PCP, but it is also illegal to possess the ingredients with the intent to manufacture these drugs.
California Health and Safety Code Section 11383 (a) applie...
