The “0.08%” suspension
After a person is arrested, the arresting officer is supposed to give him or her the choice of taking a breath or blood test. A urine test is authorized only if neither breath nor blood is available.
If the breath test is chosen and the test results indicate a blood-alcohol concentration of 0.08% or higher, the officer is required to confiscate the license unless it is from another state and issue the arrestee an “Administrative per se order of suspension/revocation and temporary license endorsement.”
The endorsement permits continued unrestricted driving for 30 days. As indicated in the fine print of that document, the individual has 10 days after its issuance within which to contact the DMV’s Driver Safety Office and request a hearing.
If no hearing is requested and the 30-day temporary license expires, or if the hearing officer subsequently rules against the individual, the suspension takes effect.
For a first offense, the suspension is for four months; this can be reduced to one month followed by a five-month restricted license, which permits driving to work and the DUI program. [VC § 13353.7(a)].
If the accused has suffered a prior conviction within 10 years, the suspension is for one year and no work restriction is possible following an administrative suspension.
However if a subsequent conviction of a DUI with a prior were to occur subsequently the administrative suspension would terminate where the underlying offense did not include the use of drugs, § 13352 (a)(3) and allow for obtaining for a 90-day hard suspension with completion of the educational component of the DUI program and installation of an Ignition Interlock Device. [VC § 13353.3(b)].
The issues to be resolved at the administrative hearing are set forth in VC § 13557(b)(2):
1. Did the officer have reasonable cause to believe the individual was driving a vehicle with 0.08% blood-alcohol in violation of §§ 23152 or 23153 (or, in the case of a driver under 21, driving with 0.01% or 0.05% in violation of §§ 23136 or 23140, .01 for a person on probation and .04 for a commercial driver)?
2. Was the person lawfully arrested, excepted where only lawful detention is required?
3. Was the person driving a vehicle with 0.08% blood-alcohol or more?
These three issues cover a very broad range of subjects and essentially permit counsel to go into almost every area that might be contested at a trial. The third issue alone is usually the subject of entire jury trials.
Consider, for example:
1. Was the individual actually driving the vehicle?
2. Since the question is blood-alcohol concentration at the time of driving when was the accused driving?
3. Do the objective facts indicate that the officer had probable cause to stop, detain, and arrest the person?
4. Was there legal authority to arrest? (For example, was the misdemeanor committed in the officer’s presence or was there a legal exception to this requirement?).
5. Did the officer comply with the breath-testing requirements of Title 17? (For example, did he keep the suspect under constant observation for 15 minutes preceding the test?)
6. Was the breath machine properly calibrated and maintained?
7. Does the client have any physical or medical condition that could create a false high reading on the machine, such as acid reflux, issues surrounding diabetes or other issues?
8. Was the blood sample collected, stored, and analyzed in accordance with Title 17 or medically acceptable practices? (For example, was there sufficient preservative and anticoagulant; was the blood sample contaminated or falsely increased due to fermentation, or any other reason to challenge the reliability of the blood alcohol result?
9. Is all evidence on the issues produced by the Department admissible under rules of evidence for administrative hearings?