Part 3: DMV Hearing Officer Questions the World’s Worst Witness

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:

1. Did the peace officer have reasonable cause to believe you were driving a motor vehicle in violation of CVC §§23152, 23153, or 23154?
2. Were you lawfully detained while on DUI probation or lawfully arrested?
3. 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.

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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.

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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.

Part Two: Injury, DMV, DL, DUI and CHP Report

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.

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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.

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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:

1. Did the peace officer have reasonable cause to believe you were driving a motor vehicle in violation of CVC §§23152, 23153, or 23154?
2. Were you lawfully detained while on DUI probation or lawfully arrested?
3. 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:

1.    Do you understand these rights? box checked “Yes
2.   “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
3.     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