Top 20 Hearing Defenses
Procedural hearing defenses are those that have nothing to do with the facts of your case. Instead, they provide a way to beat the Department of Motor Vehicles (DMV) based on the way the hearing officer conducted the hearing process. These defenses are often the best (or only) option the motorist has.
Many people wonder how hearing officers can make mistakes that provide a defense to a hearing. The answer is that they usually do not have an adequate understanding of the laws governing their job. The hearing officer is not usually a lawyer and often has no legal training whatsoever. In fact, they are usually promoted from the ranks of driving test examiners.
Learn these defenses so that if your hearing officer makes any of these mistakes, you will be able to capitalize on them and beat DMV.
Police officer mistakes are a fruitful place to look for ways to beat DMV at a hearing. Because DMV must prove that an arrest was lawful, any police conduct that violates a motorist’s rights should provide a defense to the DMV action because it should mean the arrest was illegal.
Moreover, because the rules of evidence at DMV hearings require properly completed police reports, often an officer’s sloppy paperwork provides a defense to the action. If the reports aren’t prepared properly, they cannot be admitted into evidence, and the hearing officer must set aside the suspension and return a motorist’s license.
For drug- and alcohol-related hearings, a chemical test report is often the main evidence against a motorist. Most of these defenses challenge the use of the report in the first place because the rules for using hearsay evidence were not satisfied. (A chemical test report is considered hearsay evidence and must satisfy certain exception rules to be used by DMV.)
The rising blood alcohol defense, on the other hand, does not challenge the use of the report. Instead, it argues that the motorist had a legal blood alcohol content (BAC) at the time of driving, but it continued to rise until, at the time of the test, it had risen to .08 percent or greater.
These defenses take some skill and may require an expert to testify. But they can be the most powerful weapons in the motorist’s arsenal because DMV will not have an expert to rebut them.
For motorists under 21 and folks on DUI probation, the law makes it illegal to drive with a blood alcohol concentration of .01 percent or greater. It also allows law enforcement to use the less-reliable preliminary alcohol screening (PAS) test instead of an evidential chemical breath or blood test.
Two defenses are particular to the PAS device used in these cases: one procedural and one substantive. The procedural defense involves the foundation that must be laid for the PAS results to be used in evidence. The substantive defense is based on the margin of error of the PAS device.
These PAS defenses are among the most successful in our office.
Refusal cases present their own unique set of defenses at a hearing.
One involves the due process problem when an officer checks the wrong box on the DS367 police report form. Two of them exploit an officer’s failure properly to advise (or “admonish”) the motorist while offering the test. One defense is based on the motorist’s medical condition at the time of the arrest (particularly in accident cases), and one is the simple “he said, she said” defense that the motorist simply did not refuse the test.
Refusal cases are among the most difficult, but by mastering these five defenses, you increase the likelihood that you will beat DMV.
Beat DMV is here to ensure you have the greatest chance possible of winning your case through the best defenses for your situation. Call 818-570-6989 or email the Law Office of Rodney Gould to schedule a consultation with a lawyer.