At a recent DMV hearing in the El Segundo Driver Safety Office, the hearing officer had issued a subpoena for the arresting officer to attend for testimony. The reason for the testimony was that the officer had not signed the certification on his sworn statement indicating that the breath test had been performed in compliance with the regulations on breath testing procedure. The hearing officer called me in advance of the hearing requesting our consent for the testimony of the officer to be taken telephonically for the police officers convenience. In previous cases, I have made it my policy to require in-person testimony from police officers. There is always a possibility that they may not attend the hearing without just cause resulting in a set aside of the suspension by "default". In this case I decided to consent to the officers testimony by phone as the hearing officer had made it clear to me that she would continue the case for in-person testimony if necessary and my client did not want any further delay.
As it turned out, the officer could not remember my client or the facts of the case. He was unable to refresh his memory from his police report as he did not have it with him. He did not have access to a fax machine, so the hearing officer was unable to show him the DMV copy. Without the officers testimony that he conducted the breath test in accordance with the regulations, the DMV was unable to suspend my clients privilege to drive.
It has become very difficult to win a DMV hearing following an arrest for drunk driving in Los Angeles, as DMV hearing officers are under a great deal of pressure from their supervisors to suspend. However, sometimes, a case which appears to be a "loser" from the outset, can turn into a "winner" by a combination of good luck with an unexpected issue and making the right tactical choices. The moral of this is that a good DUI attorney should never give up on winning a case until all avenues have been explored.