I won a DMV hearing in El Segundo Driver Safety Office, Los Angeles today on an issue that I have argued on a number of occasions before without success. Finally I found a DMV hearing officer who understood and accepted the argument. Persistence sometimes pays off. The circumstances of the case were not unusual. There was an accident, the police were dispatched to the scene, and my client was over the limit. My client was the only person at the scene who could be the driver and admitted to driving. He also admitted responsibility for the accident. The arresting officer stated a time for driving in the police report, but failed to provide any details on how the time of driving was established.
The argument advanced was that in order for the DMV to relate the results of the breath test to driving, the DMV must have some evidence of when driving occured. Typically, the DMV get around this by looking at the surrounding circumstances and inferring that, in the absence of any evidence of delay, the accident and therefore driving occured within a short time prior to the dispatch call.
However, in my case, there was no time given for the dispatch call and no other evidence as to how the officer arrived at the time of driving and the suspension was set aside.
Winning DUI DMV Hearings is difficult and does not happen in most cases. The DMV wants to suspend everyone arrested for a DUI. However, there are arguments that, given the right hearing officer can still be successful. Driving in California is considered a privilege by the DMV, but try telling that to the defendant who needs to drive for a living in Los Angeles where public transport is inefficient and unreliable. Winning the DMV Hearing takes a combination of luck and hard work by a DMV defense lawyer who understands the arguments and knows how to present them.