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All too often, while sitting in court waiting my turn to see the judge, I see an attorney unfamiliar with the court, judge or the area of law attempt to represent an accused drunken driver. Usually the lawyer has come to court in hopes of resolving the client’s matter quickly for what the lawyer may think is a “good” plea bargain (first offenders almost always face jail time). In many California counties, the lawyer finds that there is no plea bargain and the situation is either face trial or plead to the DUI charge. Worse than watching a lawyer commit malpractice in a DUI case is watching an attorney who knows DUI law but doesn’t properly represent the client because it is not necessarily economical to defend the case. It is easier to be what is known as a “dump-truck,” “cop-out” or “plea-dog” lawyer. These lawyers charge low fees to “represent” many DUI accused but do nothing more for the person than the accused could have done on his own without representation. In 2001, California superior courts arraigned more than 175,000 persons charged with drinking and driving offenses. In addition to the criminal penalties, every one of these DUI arrestees faced automatic license suspension or an administrative hearing before the Department of Motor Vehicles to fight for the right to drive in California. This second punishment by the DMV has been ruled not to violate double jeopardy. In the criminal court case, regular criminal rules of a trial and of evidence apply. At the DMV hearing, nothing is regular, although some rules do apply. These are administrative hearing rules where rules of evidence have been loosened by the Government Code (see � 11500 et. seq.). The two-pronged attack on accused drunken drivers was the brainchild of many, including Mothers Against Drunk Driving, during the 1980s — the state of California being one of the first states to implement it. The thought was that through the use of an administrative suspension, the public would be safer because the offender would not drive after a license confiscation and, with this swift action in and of itself, the offender may not reoffend. While there is belief that the reduced blood alcohol level and immediate license suspension has saved lives and reduced recidivism, the evidence does not support this. What has happened is that more court cases are going to trial and more cases are going to hearings at the DMV. This is exactly why civil and criminal (non-DUI) practitioners must look to a DUI specialist to ensure they reduce their malpractice exposure. DUI matters are routinely settled in court and at the DMV in a satisfactory manner. DMV ADMINISTRATIVE HEARING The DMV first strictly enforces Vehicle Code � 13558(b). That is, the request for an administrative hearing shall be made within 10 days of the receipt of the notice of the order of suspension or revocation issued by the arresting officer. If a request is not made, hearings are not granted under ordinary circumstances. This means that if there is no timely request made, the accused client automatically loses the hearing and his driver’s license. Hearings, if granted, must be held before the effective date of the suspension. The notice issued by the arresting officer grants a temporary license for 30 days. If the DMV cannot hold a hearing within that time frame, the DMV must grant a stay of the suspension pursuant to Vehicle Code � 13558(e) until the hearing is held and decision issued. Once a hearing is granted, the issues are predefined. Generally, there are two types of hearings. One is where the accused had agreed to and took a blood alcohol chemical test, and the other is where he refused. The hearing issues are listed in Vehicle Code � 13557. The following facts must be proved by the DMV by a preponderance of the evidence: 1. That the peace officer had reasonable cause to believe that the person had been driving a motor vehicle in violation of � � 23136, 23140, 23152 or 23153. 2. That the person was placed under arrest or, if the alleged violation was of � 23136, that the person was lawfully detained. 3. That the person was driving a motor vehicle under any of the following circumstances: (a) When the person had 0.08 percent or more, by weight, of alcohol in his or her blood. (b) When the person was under the age of 21 years and had 0.05 percent or more, by weight, of alcohol in his or her blood. (c) When the person was under 21 years of age and had a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test or other chemical test. Where there is a refusal alleged, rather than No. 3, above, the DMV must prove that: 3. The person refused or failed to complete the chemical test or tests after being requested by a peace officer. 4. Except for the persons described in � 23612 who are incapable of refusing, the person had been told that his or her privilege to operate a motor vehicle would be suspended or revoked if he or she refused to submit to, and complete, the required testing. In either the criminal court or the DMV prosecution, similar issues are presented for the defense. These include the issues of no driving, no legal detention or arrest, no advice of refusal consequences, a legal refusal, and then scientific defenses. In court, the defense has the right to a trial by jury or a judge. At the DMV, the facts are determined by the hearing officer — a DMV employee who is not a lawyer or an administrative law judge. The same hearing officer also rules on all objections to evidence and/or testimony. Because of the inherent bias and frequent rulings in favor of suspension for the department, it is understandable that so many attorneys attempting to practice in this area of law burn out. However, the DUI specialist will make the client’s record for review, since the hearing can be won in favor of the accused on review. Two methods of review are available to the accused. These are departmental review and writ of mandamus . Departmental review used to be a viable source of review until some time in the late 1990s. Since then, virtually no cases have been overturned in favor of the accused DUI client. Since Jan. 1, departmental review costs $120 pursuant to Vehicle Code � 14907, so it is now even less attractive. Here, a Sacramento DMV employee reviews what happened in the hearing and then usually “rubber stamps” the original hearing officer’s decision. It is much more logical to use the money for the filing fee in the superior court for a writ of mandamus . Petitioning the superior court for a writ of mandamus is now the only meaningful way to have an accused client’s case reviewed. Under this procedure, a superior court judge, exercising independent judgment, reviews the official record of the hearing. Counsel for the DMV is provided by the attorney general’s office. The two-pronged prosecution against the accused drunken driver certainly has made legal troubles for that driver. For the lawyer that represents one, counsel must not forget to avoid the malpractice hurdles inherent in the criminal defense and the civil administrative defense that each arrest causes. All DUI cases must be prepared for criminal trial and DMV administrative hearing with petition for writ of mandamus in mind. COUNSELING THE CLIENT Currently, first offenders, if convicted of a regular DUI crime, face probation, jail, DUI class, fines and assessments, and a minimum 90-day restriction on their driver’s licenses. If also convicted at the DMV hearing, another four-month suspension of the license applies. Most all attorneys have been asked by clients what they should do if arrested for DUI. The current thought on the subject is for them to ask for their lawyer, to remain silent, to not cooperate with field testing and to only submit to a blood test. Refusal to take the chemical test is a separate crime, and severe punishment is imposed by the DMV for refusal. Remaining silent includes declining any non-chemical tests (field breath testing), any questioning/interviews/interrogations and physical exercises. Especially in California, where most law enforcement refuse to videotape DUI suspects and utilize Standardized Field Sobriety Testing, suspects cannot prove their sobriety by cooperating with the field exercises. If they could use a videotape in their defense, it may be advisable for them to cooperate with field sobriety testing. Many DUI practitioners now recommend that any accused person take the blood test unless the urine test is an option for them. The breath test is prone to error. The road to jury trial is lengthy. Although plea bargains are available, they may not be worth it. The California Legislature created the plea bargain in the hope that defendants would choose pleas over trials. The wet reckless plea bargain, as the alcohol-related plea bargains are called, is not really a plea bargain, though. This conviction acts just like a DUI conviction. Here, the convicted is still on probation, must go to a DUI class, still potentially loses the right to drive, and still can be charged with a DUI prior if caught driving after drinking within the next seven years. If going to trial, it is best not to agree to a court trial because most judges are prone to side with the executive authorities. For practitioners seeking to develop their drunken driving defense practice, many organizations are available. The California Deuce Defenders meets regularly and can be contacted at www.cdd.org. California Attorneys for Criminal Justice and the California Public Defenders Association have regular meetings and e-mail discussion groups. And every July the National College for DUI Defense Inc. (www.ncdd.com) meets at Harvard Law School and has winter meetings around the country. San Francisco lawyer Joshua Dale emphasizes DUI in his practice. He is the author of “California DUI News” and “Kuwatch’s California Drunk Driving Law” and the webmaster of DUI-Help.com. He can be reached at [email protected].

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