Your license can be suspended under any of the following circumstances:
- You were detained on suspicion of drinking while under the influence and took a breath or blood test that indicated you had a blood alcohol concentration (BAC) of at least 0.08%
- You were similarly detained and refused to submit to a test of your breath or blood
- You were convicted of driving while under the influence of drugs
- You are under the age of 21 and were driving with a BAC of 0.01%
- You are a commercial driver and were driving a commercial vehicle with a BAC of 0.04%
- You were on DUI probation and were driving with a BAC of 0.01%
California, like every other state, has an implied consent law whereby all motorists have impliedly agreed to submit to chemical testing if suspected of drunk or drugged driving. If you refuse to submit, you will be arrested ((Goodman v. Orr (1971) 19 Cal.App.3d 845, 848)).
And, if your BAC is at least 0.08%, you will be arrested though you could also be charged regardless of your BAC level1.
Once you are arrested, your driver’s license will be confiscated by the police and you will be issued a temporary 30-day license. At the expiration of the 30-days, your license will be suspended for 4 months, if a first offense.
You will also be advised that you have 10-days to request an APS hearing with the DMV if you wish to challenge the suspension of your license. This hearing is based on the implied consent law.
There are 3 main issues at the APS hearing2, which the DMV must prove by the civil standard of preponderance of the evidence since this is an administrative and not a criminal proceeding:
- Whether the officer had probable cause to believe you were driving while under the influence
- Whether the officer lawfully stopped you and arrested you for DUI upon probable cause
- Whether you were driving with a BAC of at least 0.08%
If you refused testing, then the issues are:
- Did the officer have probable cause to believe you were driving while under the influence
- Were you lawfully detained or was there was probable cause to arrest you3
- Did the officer properly advise you that a refusal to submit to testing would result in suspension of your driver’s license
- Did you fail to complete the chemical tests despite being asked to do so by the officer
The APS hearing is a mini-trial with the DMV officer4 in the role of both prosecutor and judge. Because the rules of evidence are followed, you should have an attorney handle the hearing for you. This is especially true since you may need an expert witness and have to know how to cross-examine witnesses. Handling scientific evidence and testimony, dealing with objections and moving the court to not allow certain evidence to be considered also requires special legal skills.
For example, the officer or technician may not have followed proper protocol in administering the test or preserving samples. To introduce evidence, a proper foundation has to be layed or it will not be admitted. In any event, your attorney can challenge these procedures as well as the introduction of incriminating evidence so as to have it deemed inadmissible.
There are a number of defenses that a DUI lawyer can raise at an APS hearing depending on the facts and circumstances surrounding your stop, arrest and chemical test.
You were not driving
Under California law, you are considered to have been driving if you move the vehicle any perceptible distance5. Unlike other states, you may not have driven the car if you are found asleep in the car in a parking lot unless there is no other discernible way that the vehicle could have gotten to that location. If there are multiple people in a vehicle accident and no one admits to driving, then there may be insufficient proof that you were operating the car.
Unlawful stop or lack of probable cause
An officer cannot stop you merely because of racial profiling or for no reason other than the person’s ethnicity, long hair or other non-criminal or traffic offense6. A DUI or Sobriety Roadblock is an example of where motorists may be stopped at a designated location for no reason other than to see if they have been drinking. These are legal in California provided certain steps are taken beforehand and the police do not stop cars at random.
Another scenario is that you may have been observed by someone other than the officer to be driving erratically and your license plate number was called in to 911 but you had already returned home. Or, you were in an accident and returned home where you were interviewed by police and then arrested if you are intoxicated. In both cases, you could easily have been drinking at home so there was no probable cause to have arrested you for driving under the influence.
Failure to read or to communicate the implied consent warning.
If the officer did not read the implied consent advisory properly or stated that your license might be suspended, rather than it will be, then you may have not refused the test.7. You may also have not heard it. For example, if you are deaf but can read lips and this is conveyed to the officer who nonetheless reads the advisory to you through a screen in the police car, then you may not have been properly advised.
You did not refuse chemical testing
If you were confused about which test to request, or you had trouble blowing into the breath device because of lung problems, then you may not have refused testing8. Also, your asking questions could have irritated the officer who assumed you were refusing.
Breath testing (Breathalyzer) issues
There are numerous defenses that a knowledgeable and seasoned DUI defense can raise:
- The model may have an inherent margin of error, some as high as 10%
- Breathing patterns such as hyperventilating can lower a reading but holding your breath can increase it
- Body temperature can affect the results as the devices may be calibrated to an average body temperature that you may not have had at the time of testing
- Failure to properly calibrate the device; sensors degrade over time but some models have eliminated this factor
- An older model may identify the ethyl alcohol found in adult beverages along with other substances with similar molecular structures
- If you are a diabetic or on a particular diet, you may have acetones thousands of times higher than in other persons; acetones are substances that can be falsely identified as ethyl alcohol in older machines
- You were not observed for 15 to 20 minutes before the test was given for belching and coughing as well as for acid reflux or GERD that can affect mouth alcohol.
- The Rising BAC defense—it takes alcohol 45 minutes to 3 hours to be absorbed into your system, depending on whether your stomach is empty among other factors. This means that your BAC will continue to rise after you stop drinking and even after you have been stopped and arrested. You can argue that your BAC was below the limit at the time you were driving. Also, alcohol cannot impair you until it reaches the nervous system so if you drank 30 minutes before driving, there was not enough time for the alcohol to have been absorbed.
There are other issues that can be raised regarding the breathalyzer or intoxilyzer device depending on the particular model, as well as challenges to a blood test.
What If My APS Hearing Is Not Scheduled Before My Temporary 30-Day License Expires?
Your attorney can request that your temporary license not expire or be extended until the DMV issues its decision following your hearing.
If We Win The APS Hearing And My License Is Not Suspended, Does That Have Any Effect On My DUI Criminal Case?
Though the procedures are separate, it can certainly affect how the prosecutor in your criminal case will choose to proceed. There is a lower standard of proof in the APS hearing so this is a sign that it is unlikely the state can meet the higher burden of proof necessary to prevail in your criminal proceeding. Also, there is generally some aspect of the case, such as the failure of the officer to properly calibrate the breathalyzer or that the test results were not otherwise inadmissible that can convince the prosecutor to either dismiss the case or offer a plea to a non-alcohol related offense with no jail, a small fine and few consequences to you.
What Are The Chances We Will Win At The APS Hearing?
This is a common question. There are so many factors involved in a DUI case that we need to look at your particular circumstances including how much you had to drink, the reason why you were stopped, the officer’s statements, your conduct and facts surrounding the chemical test before we can make a determination.
If you have been arrested for a DUI and would like to learn more about what attorneys charge.
If you want to understand why its important to have an attorney represent you.
If you are ready to discuss a pending case or want to make sure your license is not immediately suspended contact the Aizman Law Firm at 818-351-9555 for a free confidential consultation.
- Burg v. Municipal Court (1983) 35 Cal.3d. 257,265-266 [↩]
- See also DMV Hearing FAQ’s: California state department of motor vehicles [↩]
- Terry v. Ohio, 392 U.S. 1 (1968 [↩]
- See also –Information about driver safety administrative hearing: California state department of motor vehicles [↩]
- Padilla v. Meese (1986) 184 Cal.App.3d 1022, 102900 [↩]
- Washington v. Lambert (9th Cir. 1966) 98 F.3d 1181 [↩]
- People v. Mason (2016) 8 Cal.App.5th Supp.11; People v. Brannon (1973) 32 Cal.App.3d 971, 978 [↩]
- McDonnell v. Department of Motor Vehicles (1975) 45 Cal.App.3d 653, 658-659 [↩]