(1) The particular apparatus utilized was in proper working order

(2) the test was properly administered

(3) the operator was competent and qualified.

When there is compliance with these three factors, Los Angeles DUI Attorney or a prosecutor can introduce the PAS devise and use it to prove his or her case.  For example, if the PAS results are below .08% alcohol in blood, its introduction will help the defense in showing that the driver was below .08%.  Conversely, the prosecution might want to introduce PAS results because they are above .08%, but,  skillful DUI Los Angeles DUI Lawyer can successfully limit its introduction because of non compliance with Adams foundation.  In Molenda v. Department of Motor Vehicles (2009)172 Cal.App.4th 974, the court upheld the trial court’s ruling that the PAS test results were not admissible because there was no evidence adduced to show either compliance with Title XVII or evidence to show a foundation for reliability as set forth in  People v. Adams (1976) 59 Cal.App.3d 559.  Because the usage of the PAS results can hurt defense, it is necessary to find out compliance with Adams foundation prior to trial and hopefully away from the prosecution.  APS hearings provide an excellent opportunity for DUI Lawyers in Los Angeles to explore and to cross examine the officers on the PAS calibrations, administration of the PAS tests and the competence of the officer who administered the PAS devise.  Competent DUI Lawyer in Los Angeles will then use this information to negotiate, win an APS hearing or get favorable results at a trial.

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Recently, the Supreme Court of the United States readdressed similar issue in Melendez-Diaz (557 US 305) and Bullcomming v. New Mexico (131 S Ct. 2705) interpreting Crawford (541 US 36).   The Supreme Court focus is on whether the documents introduced are being testimonial in nature.  If the documents are testimonial, then they would violate the confrontational clause of the U.S. Constitution and can not be introduced in evidence.  This recent decisions by the United States Supreme Court permitted the defense to make arguments that evidence court section 664 is insufficient basis to permit introduction of documentary evidence in a criminal trial without relying on live testimony.  DUI Attorneys in Los Angeles have new ammunition to rigorously defend the accused.

Eventhough the California Courts did not address this issue yet, a sister jurisdiction, ruled that ADMISSION OF CERTIFIED DOCUMENTS FROM STATE AGENCIES MAY VIOLATE CONFRONTATION clause.  When prosecutors offer certified documents from the DMV or other government agencies to prove such things as that the defendant’s driver’s license was revoked or suspended, they will have to argue that logic of Washington Supreme court is inapplicable.  Recently, Washington Supreme Court opined that a certified document from the official custodian of records showing that the defendant’s driver’s license had been revoked or suspended is testimonial in nature and therefore violated hearsay rule as explained in  Crawford and Melendez-Diaz (State v. Jasper; 2012 WL 862196; 2012 Wash. LEXIS 235, 271 P3d 876; 3/15/12; Wash. Supremes).

In Brenner v. DMV, CHP arrested Derek Brenner and he submitted to PAS test with results of .080, .053 and .085% BAC.  After being arrested, Brenner submitted to a breath test with two identical results of .08%.  CHP Officer that arrested Brenner tested the Breathalyzer before and between the two tests with an air blank that registered 0.00 percent.

Just like DUI attorneys in Los Angeles would, Brenner, offered testimony of an expert introducing calibration logs showing that the breathalyzer was improperly calibrated and read .002 higher, implying and opining that  the .08% reading was actually .078%.  The DMV put  little weight in expert testimony because the truncated results of the reading (third digit is omitted), meant that chances are, the reading was higher than .08%.  For example, a .089 reading with  .002 calibration error would still only get it to .087%, which, truncated would read .08% reading.   The court of appeals brushed off DMV argument, instead focusing on burden of producing evidence.  Once the expert testified that the results are below .08%, the burden switched to the DMV who is now required to contradict that testimony with its own expert opinion.

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As a Los Angeles DUI Lawyer, I often defend “refusal DUIs”; and will address strategy, methods and defenses of “refusal DUI” in later articles.  Here, I am focused only on the limited issue of refusal to submit to PAS.  While there is no legal requirement to submit to PAS test, overzealous prosecutor might try to show the trier of facts that failure to submit to a PAS test shows consciousness of guilt.  In other words, he or she might argue, “why else did the driver refuse to submit to a PAS test if not because he had too much to drink”.  That issue was addressed by a California Court of Appeals in 2010 in the case of People v. Jackson (189 Cal.App.4th 1461).  In Jackson, once he was informed of the right to refuse to submit to a PAS test he did so.  At trial, the prosecutor introduced refusal to submit to PAS as a consciousnesses of guilt and the defendant was convicted of a DUI.  The court opined that because there is a statutory right to refuse to take the PAS test, introduction at trial of the refusal as a consciousness of guilt was an error.  In Jackson it was deemed a harmless error due to overwhelming evidence against him, but it established a law that all courts are now required to follow and it should not be admissible in any trial.  Additionally, it can not be used by the prosecutors as an argument during plea negotiation, which Los Angeles DWI lawyers will use for your benefit.

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I am familiar with two cases from the California Court of Appeals discussing control v. driving of the vehicles.   If your case involves issues of control v. driving you will need to contact DUI Lawer in Los Angeles within 10 days of arrest to preserve your hearing rights with the DMV.   The first case comes from 4th district division 3 – covering Orange County.  In the case of In re Queen T, the court decided that a driver who steered the vehicle while the vehicle was in motion was in control of the vehicle and was subject to a DUI prosecution.  The fact that Queen T was not pressing the breaks or gas was not important.  This case has serious implications and will affect anyone who interferes with the driving by grabbing a steering wheel.  For example, assume that a designated driver is driving an intoxicated person.  If the intoxicated person decides to grab a steering wheel, it is a DUI.  As a DUI Lawyer in Los Angeles I have handled cases where an intoxicated passenger grabbed a steering wheel over an argument and caused the car to be pulled over by the police.  The passenger was arrested for a DUI even though the passenger was not driving the vehicle.  You will need our help to handle this or any other cases involving “no driving” defense.

California is a “control state”, meaning, a driver needs to be in control of the vehicle or to drive a vehicle to be labeled a “driver”  (Section 305 of the California Vehicle Code).  Prior to Queen T,  California Court of Appeals from 4th district division 1 – covering San Diego or Imperial Counties,  ruled that a vehicle may be driven eventhough the engine is not in use (People v. Hernandez 219 Cal App. 3d 1177).  There, Hernandez’s truck stalled on a freeway and he failed to coast it to the shoulder instead stopping in the number 3 lane on the freeway.  Another vehicle hit the back of his truck, injuring occupants.  The court imposed duty on Hernandez to (1) turn on flashing lights and (2) take steps to remove the vehicle from the freeway.  They opined that as a result of his intoxication Hernandez neglected a legal duty and thus is responsible for injuries within the meaning of DUI causing injuries section of the vehicle code (VC 23153).  As a result of this opinion, intoxicated drivers who leave vehicles on the road can be charged with DUI causing injuries (a more serious crime then a simple DUI), even when they are not near the vehicle when the collision happens.

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Getting a DUI Los Angeles will generally speaking, cause a driver to lose his or her driver’s license after a conviction because the courts are required to notify the DMV of the conviction.  The DMV, once notified by the courts of a DUI conviction, will suspend the driver’s license for a period of 6 month.

Independently, if one loses an APS hearing, the DMV will suspend the driver’s  license for a period of 4 month.  If a driver applies for a restricted license, the DMV will permit the driver to get it after a one month actual suspension.  The question is then, what happens if the APS hearing and the conviction are days, weeks, or months apart?  Will the DMV suspend the license twice, once for 6 month and a second time for 4 month?  Here, DUI Attorneys in Los Angeles help you answer this question.

The good news is that the suspensions must be served concurrently and once the 6 month suspension is served, the DMV is not allowed to impose a second suspension with the following two exceptions.  The first exception comes into play when there is a DMV stay on the license suspension.  To avoid the double punishment and a suspension lasting longer then 6 month, the driver is usually advised to remove the DMV stay on the suspension right after the conviction.  The second exception deals with convictions when the BAC is higher then .20% alcohol in blood and a driver is ordered to do a 9 month program as a condition of probation.  In such a case, the driver will not be permitted to remove the restriction from the driver’s license until he or she completes the alcohol educational program in full, in effect making the suspension 9 month long.

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A help of a DUI lawyer in Los Angeles is needed to defend a drunk driving charge and possibly to avoid an IID.   The DMV mails notices requiring installation of IID to all convicts of VC 23152 (DUI), VC 23153 (DUI with injury), and PC 191.5 (Vehicular Manslaughter while intoxicated).  Our office works with an IID installer who provides discount to our clients, however, a full list of approved installers is available on the DMV website.  Also, under the new law, drivers are eligible for a reduced cost of an IID when their family’s income is less then 300% of federal poverty level.  The IID requirement is not imposed by the courts; nevertheless, the DMV will require IID installation even when the courts don’t.  The DMV and not the court is required by law to mandate all drivers convicted of such offenses to install the IID.  Upon installation of the IID, it must be serviced every 60 days.  By law, the IID installer must notify the DMV if the IID is tampered, attempted to be removed, or if you fail to comply with maintenance requirements 3 times.  If the IID installer opines that such a violation occurs, the DMV will reimpose the suspension until you comply with the installer’s protocol.  Lastly, commercial drivers are not eligible for any IID requirements and must serve the entire suspension.

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Experienced Los Angeles DUI Lawyer will do it for you and will also schedule such a hearing with sufficient time to prepare a defense.  If yo do request the hearing within 10 days of the arrest, the DMV will not schedule a hearing date until it receives the paperwork from the arresting officer.  The hearing officer to whom the hearing is assigned has broad discretion to continue the hearing but sticks to DMV guideline to continue for two weeks.  Hiring a counsel will usually allow the DMV to continue for a longer period, but it is not a guaranteed continuance.  When the DMV denies a motion to continue, an alternative to a continuance is a request to reconvene.   When a requesting the DMV to reconvene, often the DMV will start the hearing by opening with the DMV exhibits.  After opening, the DMV will rest and if a request to reconvene is granted, a new date can be picked.  It is not recommended to use this methodology to continue a hearing in pro per.  Proper objections need to be raised prior to the introduction of any records by the DMV.  Skilled Los Angeles DWI lawyers will know what objections to raise and to what documentary evidence.  Without legal training and experience, the DMV will overrule the objection and move the documents into evidence.  Although it is possible that the DMV will overrule the objection even to an attorney, experienced DUI attorney in Los Angeles will know how to preserve the appealable issue.

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Here, I address legality of a stop when the officer’s reason is “weaving within a lane”.  A number of California Courts has found that “weaving” within a lane provides sufficient cause to conduct an investigatory stop.  For example in People v. Bracken 83 Cal App 4th Supp 1,  court found that weaving within lane for one half mile is sufficient cause to pull a driver over.  Also in People v. Perez 175 Cal App 3d Supp 8, court found sufficient case as based on “pronounced weaving within lane for three quarters of a mile“.   Lately, in Arburn v. DMV 61 Cal App 4th 1480 (2007), the court found sufficient cause to conduct an investigatory stop when the driver “almost hit a curb and was weaving just before driving into a parking lot“.  The court in Arburn noted that there is no evidence how many times the car “weaved”, so an inference that the car swerved only once is not supported.  The court notes that a mere “hunch” regarding criminal activity does not create a reasonable suspicion that driver was driving under the influence.  Skilled DUI Lawyer in Los Angeles will construct an argument to convince the court that the officer pulled you over on a mere hunch.  DUI attorneys in Los Angeles will explore factual differences between the sited cases and your case and show the court or the DMV that the stop was not justified.

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