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This is in response to an article that appeared in the San Francisco Recorderon April 9. The article was titled “Defending DUI”and authored by Joshua Dale. There are several inaccuracies contained within this article which necessitates the need for response and clarification by the Department of Motor Vehicles. I would like to begin by responding to Mr. Dale’s statement: “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.” In 1990, California became the 28th state to implement the “Administrative Per Se” (APS) Program. California’s administrative license suspension laws resulted from the need identified by the National Highway Traffic Safety Administration (NHTSA) to deter drunk driving. The APS law allows a swift, certain and severe impact on the drunk driver, and research has consistently shown that APS is among the most effective countermeasures in reducing DUI. While Mothers Against Drunk Driving (MADD) does support administrative license suspension laws, they are not generally credited with starting them. The first administrative suspension law in the United States was implemented in Minnesota in 1979, prior to the formation of MADD in September 1980, and was based on the British Road Safety Act of 1967. Secondly, I would like to respond to the statement: “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.” In 1990, there were 366,834 DUI arrests and 2,382 alcohol-involved fatalities. In 2001, there were 178,950 DUI arrests and 1,308 alcohol-involved fatalities. This is a drop of 51 percent in arrests since 1990 and a drop of 45 percent in alcohol-involved fatalities. These facts support the belief that the reduced per seblood alcohol level and immediate license suspension laws have saved lives, and this is confirmed by scientific evidence. In two separate DMV research reports, statistically significant reductions of between 9 percent and 13 percent in fatal and injury crashes were found to be associated with the state’s implementation of the APS laws. It should be noted that, because the two laws were implemented only six months apart, there is a problem in detecting intervention effects uniquely attributable to the APS laws or the .08 percent BAC per se limit law. However, the first of the two DMV studies, this one published in 1995, was scrutinized by the United States General Accounting Office (GAO), as part of their 1999 evaluation of studies evaluating the impact of states lowering per se BAC limits. They found the California study, which applied an interrupted time series evaluation to assess the long-term general deterrent impact of the .08 percent BAC and APS laws, to be both comprehensive and methodologically sound. The second California study was published in 1997 and was not evaluated by the GAO. It assessed the specific deterrent impact of the two laws on subsequent DUI recidivism and alcohol-involved crash rates, and revealed that the new laws were responsible for roughly, 6,200 fewer subsequent total crashes; 1,500 fewer alcohol-involved crashes; and 5,800 fewer DUI convictions. Mr. Dale states: “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.” As Mr. Dale points out in his article, the hearing issues that a DMV hearing officer must consider are explicitly circumscribed in Vehicle Code Section 13557. The specificity of the law constrains departmental discretion by legislative intent. Mr. Dale further states: “Departmental reviews 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.” In 1998, at the urging of the defense bar, an independent departmental review unit was established in Sacramento separate from the office where the original hearing was held. Of the reviews conducted in FY 00/01 and FY 01/02, just over 97 percent of the department actions were sustained or upheld. The next statement I would like to respond to is, “Here, a Sacramento DMV employee reviews what happened in the hearing and then usually “rubber stamps” the original hearing officer’s decision.” Vehicle Code Section 14105.5, limits the issues of a departmental review to an examination of the hearing report, documentary evidence, and findings. To the extent that this review frequently affirms the original hearing officer’s decision suggests that the preponderance of evidence in the majority of the cases reviewed, contain the required facts listed in Vehicle Code Section 13557. A subsequent statement, in part, reads “Currently, first offenders, if convicted of a regular DUI crime, face . . . a minimum 90-day restriction . . . If also convicted at the DMV hearing, another four-month suspension of the license applies.” The DMV does not “convict” DUI offenders, only the court can do that. The onset of the administrative first offender four-month, or 30-day plus restricted license, suspensions are not dependent on a hearing request per se. While the administrative and criminal sanctions resulting from the DUI arrest are independent from each other, one a civil consequence and the other a criminal consequence of drunk driving, the administrative suspension for an offender usually supersedes the court restricted driving privilege depending on the timing of the conviction. Last, Mr. Dales states: “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.” This is risky and confusing advice, since “silence” is considered a refusal and the blood test is not always available nor is everyone able to submit to a blood test. Under those circumstances, when the blood test is not a viable option, a driver strictly following his lawyer’s advice to take none other than the blood test, automatically subjects himself to at least a one-year suspension, and if he is a repeat-offender, may be revoked for up to three years. The driver would be better advised to cooperate fully with the police officer’s requests, because by doing so the suspension action would be shorter, ranging from four months to one year. Mr. Dale acknowledges that, “Refusal to take the chemical test is a separate crime, and severe punishment is imposed by the DMV for refusal.” Even in the first years following the implementation of the administrative license suspension laws in California, between 1990 when the initial laws were implemented, and 1994, when the zero tolerance law for under 21 years olds was implemented, less than one-half of 1 percent of the actions taken resulted in writs of mandamus. In the first year following the initial implementation of the laws, when the greatest volume of challenges were heard, there were only 1,045 writs filed. That represents only 0.4 percent of the roughly 264,000 total actions initiated at that time. Of the writs filed and heard by the court, roughly between 76 percent and 85 percent are upheld each year by the court. If the arresting officer does his job well, there should be almost no reason for setting aside the administrative action either resulting from the initial administrative review process that all APS actions are subject to, or resulting from a hearing. Marilyn Schaff Sacramento Editor’s note: Marilyn Schaff is chief of the Driver Safety Branch of the Department of Motor Vehicles.

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