DMV Win in Refusal Case
I received an Order of Set Aside today following a DMV Hearing for a client who allegedly refused to submit to a chemical test. The Licensee had been pulled over for weaving into opposite lanes of traffic and had admitted to taking Xanax and Ambien thirty minutes earlier. He allegedly appeared confused and disoriented and performed poorly on field sobriety tests. He denied drinking any alcohol. The Officer arrested him and according to the police report, the Licensee refused to submit to a chemical test, indicating that he wanted to speak to his therapist first.
At the hearing, the arresting officer testified in person. Upon cross examination, the officer admitted that he only read a portion of the full chemical test admonition to the Licensee. The portion he read related to drugs only and did not include the full admonition concerning a Licensee's obligations following a lawful arrest. I had intended to have my client testify and he was present for the hearing. However, after the Officer's testimony, the Hearing Officer sustained my motion for a set aside based on the failure of the Officer to read the full admonition to my client.
Ironically, had my client submitted to a test, I believe it would have been negative for alcohol and the DMV would have automatically set aside the suspension proceedings as they cannot suspend based on drugs alone. However, because of the refusal allegation, he was facing a full year of suspension.
The chemical test admonition in
DUI drugs cases is more complicated than a regular DUI based on alcohol only and many police officer's fail to read the whole admonition.