THE INJURY
If you read Part 1: The Accident, you are probably wondering how my husband ended up at home instead of hospitalized or on the night of the accident . I will try to be brief about the medical stuff, It isn’t central to the story and my message.
The injury was severe: a compound fracture with very jagged edges. They put a temporary cast on it (I guess to immobilize ), the night of the accident. They then sent my husband home, with a prescription for painkillers and instructions to make an appointment to see his Orthopedic Specialist, and have it looked at. We have good Insurance. What we don’t have is an Orthopedic Specialist on speed dial. We called everyone who practices locally. . The soonest any one of them would see him, even after we explained the circumstances, was 10 days away.
This led to an agonizing weekend filled with excruciating pain for my husband (because of the jagged bone ends grinding together, we later learned.) Over this long weekend we made two more trips to Emergency, where they administered Morphine. I spent a good part of the weekend covering my ears, because my husband was literally screaming in pai.n and there was nothing I could do for him.
The 3rd visit to emergency, a doctor gave my husband a his business card. Instead of a 4th visit to the ER, my husband called the number on the card at 4:00 AM Monday Morning. Within minutes there was a call back from the Orthopedic Surgeon. He told my husband to be at the Surgery Center in 3 hours. This was a huge relief to us.
Because it had been more than 24 hours since the injury, the leg was put into a contraption to stabilize it
Fixation Device
The fixation device (similar to the one in the picture) is screwed into the bone, above and below the injury, to keep it from moving or rotating.
This was a temporary measure, until the swelling went down and the break could be properly set.
The 2nd Surgery (involving metal plates and many. many more screws) was scheduled for a month down the road.
Prompt treatment of the injury would have eliminated the need for a two costly surgeries, when one would have sufficed.
Arrest? What Arrest?
Obviously, we were both preoccupied with my husband’s injury. What neither of us realized, was that my husband had actually been arrested for DUI. The last my husband saw of the CHP officer at the hospital, he was still trying to get him to confess to something he swore he hadn’t done.
The first hint we had of the arrest, began arriving in the mail, in a flood of very informative literature from DUI attorneys. Drumming up business with a little post-holdiday ambulance chasing.
My husband did realized his Drivers License was missing from the wallet he had handed over to the CHP at the scene, because he was asked for it in one ER visits.
Neither of us had ever had any experience with DUI procedures, but we were about to get an education
In California, when you are arrested for DUI, typically you are taken to jail and your vehicle is impounded. There isn’t much room for doubt.
My husband really thought the cop had interviewd the witnessess, and realized he was telling the truth and had decided not to arrest him.
A couple days after the DUI brochures, we received a notice Order of Suspension/Revocation from the DMV in the mail , notifying us we had 10 days to contact them, if we wanted a civil hearing (to review the matter.)
The literature from the various attorneys explains that you are not just facing criminal charges for DUI, but that forfeiture of your DL is automatic and, and considered a civil matter, unrelated to any criminal charges by the DA. The attorneys claim that only 5% of all DMV civil hearings, result in a Set Aside (return of license and driving privileges) for those defendants not represented by a Lawyer. Because they are trying to drum up business, this is probably not accurate.
I did read somewhere that in 2007 only 9% of all DMV hearings were decided in favor of the defendant. I have no idea what the real stats are, but suffice it to say that very few cases, represented by lawyer or not, result in the defendant walking away with their driving privileges intact.
When you are notified that you have 10 days to schedule the hearing, you have to act fast. We could not afford a lawyer, but my husband insisted we fight this because he was innocent. Because of my husband’s severe injury, most of the planning and preparation for the administrative DMV hearing, was left up to me.
First thing to do when you are going into battle: learn the rules of engagement.
The following info comes from the Department of Motor Vehicles website:
WHAT HAPPENS TO MY DRIVER LICENSE?
The officer will give you an Order of Suspension/ Revocation. If you have a valid California driver license, the officer will take your driver license and send it to the DMV (to be destroyed). The Order of Suspension/Revocation includes a temporary driver license valid for 30 days from the issue date
(usually the date of your arrest). At the end of the 30 days, the suspension/ revocation action goes into effect. If the officer does not serve you with an Order of Suspension/ Revocation, the DMV will mail you one.
The temporary driver license does not allow you to drive if there is another DMV or court-imposed driver license action in effect.
The APS suspension or revocation is independent of any jail, fine, or other criminal penalty imposed in court if you were convicted of a DUI offense.
WHAT DOES DMV DO?
DMV automatically conducts an administrative review which may include an examination of the officer’s sworn report and any accompanying documents, such as an arrest or traffic collision report.
If the review shows there is no basis for the APS suspension/revocation, it will be set aside. DMV will notify you in writing only if the suspension/revocation is set aside.
WHAT CAN I DO ABOUT THE SUSPENSION/REVOCATION?
You have 10 days from the receipt of the Order of Suspension/Revocation to request a hearing to show that the APS suspension/revocation is not justified. DMV will conduct a telephone hearing unless you request an in-person hearing. The APS suspension/revocation will not be stayed (delayed) unless:
You request a hearing within 10 days from the issue date of the order and the DMV cannot provide a hearing before the effective date of the suspension/ revocation.
Before the hearing, and upon request, you may see and/ or obtain copies of DMV’s evidence. If you want copies released to someone else, such as an attorney, you must give the person signed permission. You have the right to have a sign or language interpreter present at your hearing. Immediately notify DMV if you require an interpreter.
You may represent yourself or at your own expense, an attorney or another person may represent you at the hearing. You may present oral testimony and other evidence. Your testimony will be taken under oath or affirmation and the hearing will be recorded.
DMV ordinarily does not arrange to have the peace officer testify. However, DMV reserves the right to call the officer if his/her testimony is needed. You may subpoena the officer or any other witness(es) you feel may help your case and have relevant testimony or evidence to present. You are responsible for paying the required fees and for making sure your witness(es) receives the subpoena.
We scheduled an in-person hearing was scheduled for the end of August. My husband was issued a temporary DL, good until the hearing officer has decided the case, (approximately 10 days, post hearing.) The temporary DL, was a moot point for us, as my husband was still a months away from being able to drive.
In preparation for the hearing, we immediately requested the copies of the DMV evidence. This basically consisted of the CHP Report filed by the officer who responded to the scene and test results of the breathalyzer.
The DMV, is ONLY interested in the the answers to three questions. To get them to set aside the suspension you have to show that one of the following did not happen:
- Did the peace officer have reasonable cause to believe you were driving a motor vehicle in violation of CVC §§23152, 23153, or 23154?
- Were you lawfully detained while on DUI probation or lawfully arrested?
- Were you driving a motor vehicle when you had 0.08% BC or more while driving a noncommercial vehicle?
THE EVIDENCE AND THE CHP REPORT
The evidence against my husband wasthe CHP report and the results of the Blood Alcohol Tests (BAC).The CHP officer’s report, stated as fact, exactly what he thought happened. It had 4 witnesses, including myself.
The officer wrote that I told him my husband and I were drinking Margaritas in our hot tub, prior to the accident. I knew it wasn’t true and that I never told him that. It was something he had made up, based on what I did tell him. It is legal for him to tell a lie to my husband to extract a conviction. It is not legal for him to use that lie in his report. It became evident at that point, that the report was not truthful.
The report stated that, according to the three witnesses, my husband was popping wheelies, and racing around the parking lot, showing off, when he lost control of his motorcycle. (My husband would have to be a lot drunker and stupider than he is to pull a stunt like that on 4th of July, down the street from a CHP office, knowing he would be stopped at checkpoint to gain access to our street, on his way home.—that would be akin to ASKING to be arrested for drunk driving.
According to the report, two of the three witnesses reported they had observed this out of control display of showmanship just prior to the accident. The witnesses all worked at the hotel. Two of them had been on a break at the time of the accident. One of them was the hotel BARTENDER. And now you know where the alcohol came from.
We contacted each of the witnesses. The bartender said he told the officer he brought shots out to my husband two times. The other two witnesses both were surprised to hear the officer had said they saw my husband riding the motorcycle. They had noticed him working on the bike, but neither one of them had told the officer he was riding it, much less showing off and popping wheelies. They agreed to testify to this on our behalf at the DMV hearing. They promised to make themselves available to the hearing officer by phone, as did the Bartender.
It is important to note that we did not pick these witnesses. They are not our friends of ours. We didn’t even know their names until we saw the report. We are 25 years older than them and to this day, I’ve never met them. My husband met them briefly, in the 5 minutes after the accident happened– never before, never since. These witnesses were listed on the CHP report as witnesses. supporting the CHP version of events.
The report stated that bartender witnesses reported that he had given a shot of Bacardi after he called 911. That isn’t exactly accurate, which I’ll get into on the next post.
There are other inconsistencies on the report.
- The officer states the alcohol was given to my husband 10 minutes before his arrival, (but after the accident happened.) The eta on the report is 5 minutes after the 911 call.
- The supplemental report is dated July 4, 2007. The date of the report and the date of the accident are listed in separate boxes, next to each other. The report could not have been created on the 4th, since key witnesses were not interviewed until the 5th. Witnesses were interviewed the following day, per the written report.
- The report states the bike was lying next to my husband in one place on the report and that it had been moved by witnesses prior to his arrival, elsewhere in the report.
- The report states that the CHP Officer observed my husband, who had an “unsteady gait” (this was one of the things that led him to conclude my husband had been drinking. )This is clearly wrong. He couldn’t have observed a gait (unsteady or otherwise), due to the injury.
- The report states that the time of the incident as 19:20 and the time of arrest is listed as 19:40. The report states my husband was read his rights at 20:35. My husband says he never even knew he had been arrested or was in custody, and that he was never read his rights.
- The report has 3 boxes regarding the Admonition of Rights:
- Do you understand these rights? box checked “Yes
- “With these rights in mind, do you wish to talk to us? no check in either yes or no boxinstead, has a hand written N/A
- Waiver Statement box has the words “continued talking” written in it
These might seem petty, but CHP Officers are held to certain standards and their reports are expected to be accurate. That’s one way to protect the rights of citizens from overzealous law enforcement.
Unfortunately this report went far beyond having a few inconsistencies and typos. Parts of it were fabricated, including my testimony and the testimony of other witnesses.
The report also falsely states that while still at the scene of the accident:
- My husband admitted drinking alcohol prior to the accident (If he had, the officer wouldn’t have continued to hammer him for the next two hours, to get him to confess to it.)
- My husband admitted that he was riding the motorcycle at the time of the accident (a pretty neat trick for a motorcycle that he’d arranged transport for, because it wouldn’t start)
At the DMV hearing, we address each questions the DMV is interested in. They are the only thing that the DMV considers relevant, and the only things considered grounds for a Set Aside of the DL Revocation
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I know I promised you a “Perry Mason” moment. I will deliver on that promise in the next post, where I cover the actual DMV Hearing
Justifiably Disturbed by Gangstalking 