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PETER F. IOCONA
ATTORNEY AT LAW

22982 LA CADENA DR #239
LAGUNA HILLS, CA. 92653




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23152 VERDUGO DR #201
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CALIFORNIA DMV APS HEARINGS - EXAMINING THE ISSUES & SUB-ISSUES

RATED BY SUPER LAWYERS, ORANGE COUNTY'S TOP-RATED DUI DEFENSE ATTORNEYS

Peter F. Iocona - Top 100 Trial LawyersPeter F. Iocona - Super Lawyers Rated Orange County DUI Lawyer  Peter F. Iocona - Top-Rated DUI Criminal Defense Attorney
 Peter F. Iocona - Top-Rated Orange County DUI Defense Attorney

DMV APS HEARINGS - EXAMINING THE ISSUES


As set forth in the first part of the series, entitled "DMV APS Hearing Actions", in the State of California, the Excessive BAC Hearing Issues are as follows:

1. Did the officer have reasonable cause to believe that the licensee was "driving" in violation of CVC 23152, 23153, 23136?

2. Was the licensee lawfully Arrested?

And remember, this requires sufficient probable cause for the officer to have arrested you for driving under the influence

3. Was the licensee driving with a blood alcohol level of 0.08% or more?

1. WAS THE LICENSEE ACTUALLY "DRIVING" A MOTOR VEHICLE?

The first issue is whether the person actually "drove a motor vehicle" in violation of one of the Vehicle Code Sections. Thus, two relevant issues arise from this issue and then there are applicable sub-issues:

1. Did the Licensee “Drive”? and

2. Was the Licensee Driving a “Motor Vehicle”?

Did the Officer Actually Observe the Licensee “Driving”?

This issue requires that the DMV prove that the person actually "drove" a motor vehicle. The act of “driving”, at least for purposes of the California drunk driving law statutes in California, requires a showing of “volitional movement”.  Therefore, the licensee must have actually "driven" a motor vehicle pursuant to Mercer v. Department of Motor Vehicles (1991).

Under Mercer, even the “slightest movement of the vehicle” constitutes “volitional movement” for purposes of California’s Drunk Driving statutes.

How is Driving Determined If I Were in a Traffic Collision?

Proving the element of "driving", in cases involving a traffic collision can be proven by circumstantial evidence pursuant to Vehicle Code Section 40300.5. The same is true for cases involving vehicles parked along a highway or roadway when there is enough information to demonstrate recency of driving.

Note that cases distinguish between driving with the intent to drive rather than driving to safely exit a roadway for purposes of necessity, such as the following two cases that left open these exceptions:

Hensley v. Department of Motor Vehicles (1985) and People v Kelley (1937).

2. WAS THE LICENSEE "LAWFULLY ARRESTED"?

The second element requires a showing that there was a legal or valid arrest for DUI. This is not present when the evidence does not demonstrate that the arresting officer had enough information to arrest you, such as evidence that you passed all of the Field Sobriety Tests or that the officer could not prove that the person was in fact "driving" a motor vehicle as set forth above. 

Did the Officer Have Reasonable Cause to Stop and Detain You?

This is a sub-issue of the second element. The issue is whether you were lawfully arrested, which, while not expressly stated in Vehicle Code §§ 13353(c)(2) or 13557(b)(2)(B), this requires a showing that the officer actually had reasonable cause to "stop and detain" you in the first place, similar to a motion to suppress pursuant to Penal Code Section 1538.5.

Vehicle Code § 23612; Mercer v. DMV (1991); Gikas v. Zolin (1993) and Lake v. Reed (1997)

3. WAS THE LICENSEE DRIVING WITH A BLOOD ALCOHOL LEVEL OF 0.08% OR GREATER AT THE TIME OF DRIVING?

The last issue relates to Vehicle Code Section 23152(b), which requires a showing that the person was actually driving with a blood alcohol level of 0.08% or greater at the time of driving, not just at a later time, such as when the chemical test was administered revealing a result of 0.08% or greater.

This issue will be address in more detail in subsequent sections, but for purposes of setting forth the issues relevant to a DMV APS Hearing, all one must know at this point is that the DMV bears the burden of proving that the person actually "drove" a motor vehicle with a blood alcohol level of 0.08% or greater at the time of driving.

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