The DMV Hearing
The hearing took place at our local DMV office six weeks after the accident . I have paraphrased all witness testimony and am recounting it as I remember it. I am also trying to set the tone of the witnesses, to give you a feel for how everything played out.
The hearing officer, who, I think, meets mostly with lawyers, representing clients, was nice enough, patient and extremely serious. He may have been a little jaded, but considering he probably gets lied to all the time, he hid it pretty well.
The evidence, as written in the report was damning. The blood alcohol tests measured .012 (the 2 breathalyzer tests at the scene) and the blood taken at the hospital tested at .014. To refute the report, we had to convince the hearing officer that there were inconsistencies, and mistakes. The biggest hurdle was to convince him that the officer had lied about witness testimony on the report.
I had written everything out ahead of time and tried to keep my testimony relevant and on point.
The DMV, IS ONLY interested in the answers to three questions. To get them to set aside the suspension you have to show that one of the following things 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% BAC or more while driving a noncommercial vehicle?
1. The first question wasn’t one I really felt we could refute. My husband reeked of alcohol, there had been an accident and there was a motorcycle involved. That seems like reasonable cause to assume that the answer to question number 1 is yes. My assumption is that reasonable cause equates with probable cause, but that may not be accurate. He had probable cause to investigate. Did he have reasonable cause after investigating to believe it… maybe. I do think that if he was sure after the investigation, that my husband had been riding, while under the influence… he would not have had to stack the deck in his favor, by changing witness testimony on the written report.
2. Was my husband lawfully arrested? This second question, I could work with. My husband and I both testified that the first clue we had, that he had, in fact been arrested, was 5 days later, when our mail box was flooded with offers to represent him from DUI attorneys. Can a person be lawfully arrested and not know it? I wouldn’t think so.
The contents of the report were vague, at best, with regards to the Miranda Warning.
The report states that the time of the incident as 19:20, the CHP estimates ETA at 19:25, and the time of arrest is listed as 19:40. The report states my husband was read his rights at 20:35. According to my husband and witnesses at the scene, the CHP was still asking questions and hammering my husband as he was loaded into the ambulance. The CHP then followed the ambulance to the hospital, 5 to 7 minutes, where he accompanied my husband, as he was treated for his injuries. He was relentless. At any time (except for the 5-7 minute transport time) he could have issued a Miranda Warning. My husband says the Miranda Warning never happened at all.
It was news to me, to discover that the Officer is not required to issue a Miranda Warning, but if he does not, he must stop all questioning. Since the questioning never stopped, legally my husband should have been Mirandized, at the time he was placed under arrest. Normally, a DMV Hearing Officer would not have any reason to doubt the CHP, if he reported that he had Mirandized the suspect. But, there were some problems with the actual report. There is a 55 minute lag time between the arrest and the Miranda, during which questioning continued.
In the report there are questions about the Miranda Warning.
With these rights in mind, do you wish to talk to us? the officer did not check the yes or the no box. Instead he wrote the shorthand for Not Applicable.
In the Waiver Statement box the Officer wrote “continued talking”. That hardly constitutes a waiver or indicates suspect clearly understands he has a choice here. The Miranda Warning seems to have been white washed, if it happened at all. The answers on the report seem evasive. Either the suspect waives his rights or he doesn’t. N/A as an answer takes away the protection of the Miranda Warning. There should never be any question in the mind of a suspect, whether he has ,or has not, waived his rights. No peace officer should be allowed to obscure the Miranda Warning, by changing the wording, breaking it up into parts, or hiding it in the guise of an ongoing conversation. My husband didn’t know he had been arrested, because this Officer, did not make it clear. He obscured it, to increase his chances of getting an incriminating statement, post arrest. Not Right. Not Legal.
Next there is the issue of the Blood taken at the hospital to determine, BAC. When the nurse took blood, my husband thought it was necessary for the treatment of the injury. He thought he had already done the Breathalyzer, at the scene. (Neither of us knew that the breathalyzer given at the scene is only preliminary, and another BAC test is always done post arrest. ) As I understand it, you have a choice of Breathalyzer or Blood. Implied consent means that you are allowing them to test you; it doesn’t mean that you’ve given up the choice of which type of test you agree to take. The BAC test of Urine is no longer a choice, unless Blood or Breathalyzer testing is unavailable. I don’t know if the Urine test was still an option in 2007. I haven’t done the research.
As my husband put it to the DMV Hearing Officer: “There really was a three-foot puddle of blood. I had lost enough blood that day. If given a choice, I would have opted for a Breathalyzer test.” Again, the reason the blood was being drawn, was obscured. That explains why he wasn’t given a choice. It would have given him a pretty solid clue that he was under arrest, something the Officer did not want him to realize.
You may be thinking, these are technicalities. Getting off on a technicality, doesn’t mean you didn’t commit the crime.
At this point in time, I don’t think anything we had said or done was going to impact the decision of the Hearing Officer.
3. The third question is the biggie. Was he riding the motorcycle with a blood alcohol of .08 or higher?
I never told the CHP Officer my husband was drinking prior to the accident. I told him he wasn’t. The report states that I had told him he had drunk beer and a Margarita, before the accident. That was a flat-out lie. I was the one who drank the Margaritas, and that was after he failed to return home and had already broken his leg (which I had been unaware of.) There was no beer mentioned at all.
The three of us testified that the bike was broken down. To get it home, my husband needed a truck. His brother had been called to transport the bike, before the accident. I had also received a call prior to the accident notifying me the motorcycle wouldn’t start. (A point that could have been verified with phone records). My husband testified that he repeatedly asked the officer to touch the engine, so he would realize it was cool and had not been running. He tried to talk the officer into trying to get the bike started, so he would realize it wouldn’t start. Neither of those things happened.
After our testimony, we are still nowhere with the Hearing Officer. But we still have the witnesses, supposedly standing by waiting for the call. (Or so they had promised me.)
The officer had a statement on the report saying a bartender gave my husband a shot of Bacardi after he saw the extent of the injury. There is the proof that he drank alcohol post accident.
Two of the three witnesses, listed on the CHP report did not answer their phones, even though the hearing officer dialed them several times.
When the Hearing Officer got ahold of the bartender he said that he had not seen the accident (that was in the report). He heard is buddy yelling “Oh my God!” and went to investigate. He said he was horrified at the amount of blood and at being able to see the bone.
He said “If that was my leg, I’d beg someone to knock me out until they fixed it.”
Did you bring the injured man a shot of rum?
“Not a shot, a bucket, man and not Just Rum, this was the strong stuff, 151, Dude. I thought
it would make him feel better. He downed it, so I brought him another one.”
What is a “bucket” ?
“It’s a glass that holds three shots, instead of one”
(We were hearing about the bucket and the 151 for the first time)
Did you tell this to the officer?
“I told him the same thing, I’m telling you, I gave the guy 2 full buckets of 151 cause his leg was so bad. I thought it might make him not think about it. I told him the guy just downed a bunch of booze and he sure didn’t seem very drunk. Maybe he was in shock or something, …didn’t seem like the alcohol was really working. He wasn’t freaking out though. I know I would have been. Maybe it was working, keeping him calm, ya know… or maybe he’s one of those dudes, that’s just that way. It was gross, man. I don’t even like to think about it.”
This is helpful, but, it didn’t tip the scales in our favor. The Officer hadn’t out and out lied. He had only minimized the amount and type of alcohol consumed, post accident.
For half an hour the Hearing officer had been periodically dialing the other two witnesses. They weren’t answering and he was wrapping things up, ready to dismiss us. I pleaded with him to just try the numbers one more time. This time the guy, who am pretty darn sure is the Worst Witness in the World, answers his phone.
It is embarrassing! The hearing officer kept rolling his eyes during the conversation. We all listened on the speaker phone, mortified. This witness was sworn in and he sounded like a sitcom version of a stoned, dumb, surfer duuuuuuude…….
He said he saw the bartender (his cousin) bring the shots, and the injured guy drink ’em down. He was a little confused on some of the details and not always making a lot of sense.Finally, the Hearing Officer asked him if they had been drinking that day.
“Oh man, we were wasted! It was the Fourth of July. We were partying.”
Weren’t you working in the kitchen at the time?
“Yeah, but everybody’s cool. I work with my cousins. We were doing the boss a favor, man. We weren’t gonna be open that day. We were doing her a big favor.”
When did you start drinking?
“Oh man early…. probably around 6:00”
AM?????
“Yeah, It was the 4th of July, Man. ‘ Course.”
So you were drunk at the time of the accident?
“I already told you man, we were wasted!”
(by this time the Hearing officer is kind of smiling and shaking his head, like he can’t believe this guy was the best the CHP could come up with for a witnesses (or that we could be foolish enough to think he could help our case) We are trying to figure out how to distance ourselves from this guy, who can’t possibly do us any good.
Had you consumed any drugs, that day…. or was it just the alcohol?
“Oh sure, we smoked some bowls, the good kind. It was the 4th of July, man, I told you… we were partying.”
Have you consumed any alcohol today?
“No man, I just got home from school.”
Have you consumed any drugs today?
“No man, Well… I just smoked a bowl, before you called… but nothing else… if that counts. But, I’m good.”
By this time, the hearing officer, still shaking his head, has a big ‘ol grin on his face. He looks like he might start laughing. We are still squirming.
The CHP Officer wrote on the report that you saw the defendant, riding the bike in the parking lot, prior to the accident, hot- rodding and popping wheelies. Is this what you told…..
The stoner witness doesn’t even let him finish. He cuts him off sounding very indignant.
“I KNOW MAN! I HEARD THAT! I COULDN’T BELIEVE THAT. It really kinda pissed me off, cause I never said nothin’ like that. What ‘s he doing that for…? That just AINT RIGHT.”
That was it. The guy who had been honest about drinking and drugging, was telling the truth. He sounded Indignant. He really was pissed about the contents of the report. It really bothered him. You just couldn’t doubt his genuine reaction.
You just knew the guy was telling the truth. We all knew it. This guy, a little too honest for his own good, was deeply offended to have been misrepresented by the Highway Patrol, in the accident report. The Hearing Officer looked up at us and I could see it in his face. He knew, this was the truth. He got lied to all the time. But this guy was absolutely telling the truth.
This witness, that no one would ever willingly pick to bolster their case, if they had a choice, had just turned the tables in our favor.
It really did feel like a Perry Mason Moment. Up to that point, I don’t think the hearing was going our way.
There was a few more questions, where it was established that the witness never saw my husband riding the bike, never heard the engine, and had noticed him working on it, before the accident.
When we left the hearing, we thanked the officer, who told us we would get his decision in the mail within 10 days.
I had to ask, “so what do you think?
All he said was:
“Well, the witnesses do tend to bring into question, the Officers version of events”
10 days later, My husbands Drivers License was returned in the Mail with the Set Aside Order.
Justifiably Disturbed by Gangstalking 