Winning Strategies at the DMV Hearing
No one wants to lose his or her privilege to drive. Working together, we can develop the best strategy to follow at your hearing.
First and foremost, successful license hearings start with the selection of the right hearing officer. Throughout all my materials, I warn drivers of contacting the DMV themselves and setting their hearings on their own. Unless you absolutely have no other option (it is the tenth day at 4:55PM and you have not yet retained an attorney), you ought to let your attorney contact the DMV. Why? When a person calls the DMV and sets the hearing, the DMV typically assigns a hearing officer to the case. However, some hearing officers are fairer than others. Any competent DUI attorney who handles a significant number of DUI administrative hearings should know which hearing officers to avoid. You do not because you do not practice in this area. The better hearing officers are in “high demand” by the competent DUI attorneys. If you call the DMV and set your own hearing, the DMV may assign a hearing officer whom we as attorneys do not want.
Second, the kind of hearing that you select may or may not lead to a more favorable outcome. Administrative per se hearings may be conducted in person, in front of an actual hearing officer at a special DMV location, or by telephone. Each forum has its advantages and disadvantages. You ought to discuss your overall strategy with your attorney before selecting the kind of the hearing.
Third, a thorough examination of the police report and chemical test report(s) may reveal material inconsistencies, inaccuracies and/or defects. Such inconsistencies can be as simple as different dates and times of the same investigation, stop and/or arrest. For example, if one portion of a police report stated that on the same day the person was observed driving at 12.15PM (afternoon), but the arrest occurred at 12:45AM (early morning, some twelve hours earlier) this discrepancy could be material and help win your case.
Fourth, each chemical test has its own weaknesses that must be exploited. Moreover, each test must have certain procedures followed correctly for its results to be admissible and reliable.
Breath tests are less reliable than blood tests because they are indirect measurements of alcohol in your blood. Lower lung breath alcohol must be converted (source of error) into a blood alcohol reading. The machine itself is inherently subject to error. The minimum error factor for a breath reading is .01%. Also, the individual typically performs two breath tests. If so, the two results must be within .02% of each other for either to be admissible. In addition, the machine must be properly maintained and serviced. It also must be periodically calibrated (checked against known samples of alcohol), so that it reads within the proper range. Lastly, you must be observed for 15 minutes by the officer before the breath test is administered. Such observation is needed to ensure that foreign contamination of your air sample (for example, belching of gas/alcohol from the stomach) does not cause an artificially high reading.
Similarly, blood samples must be properly taken. The sample must be drawn by a qualified person. In addition, the sample must have the proper ratio of preservatives to prevent decomposition of the blood. If not, the alcohol level may increase because of fermentation or decomposition. Furthermore, the sample must be properly stored (cooled) to prevent decomposition. Lastly, it must be properly labeled, so that the chain of custody (transmission from the officer to the storage facility to the laboratory) is proper that its result be admissible as evidence. Also, you are entitled to have the blood sample retested if you feel that the result is wrong. Any favorable retest results should be used on your behalf.
Lastly, the specific facts of each case must be reviewed. Is there evidence of “driving,” that is, did the officer actually observe the person operating the motor vehicle? Also, the chemical test must occur within three hours of “driving,” for any presumption to go into effect that the DMV needs to proceed against you.
If the person is charged with a “refusal” (failure to perform the chemical tests), the issues include whether the person could physically provide a sample (example: person with a lung disorder could not adequately blow into the breath machine); was the person actually given a fair opportunity to try to complete the test or tests; did the officer, by his or her actions, contribute to the person’s failure to take the chemical test; was the person properly advised that he/she had to submit to the chemical test; and, lastly, was there a physical, mental or language problem that prevented the driver from understanding the admonition about the requirement to take the chemical test.
Please carefully review the facts of your case with your attorney to obtain the best DMV result!