I was arrested for DUI on 5/6/12 @ 2:44am the DMV discovery file makes no note of PAS results.
My blood was drawn on 5/6/12 @ 3:41 am, the blood was analyzed on 5/15/12, the report was prepared on 5/23/12, and certified on 5/30/12
would the BAC report be inadmissible as evidence based on prior appellate opinions? specifically Force v. DMV, Patterson v. DMV, Molenda v. DMV?
Did you already request the DMV hearing and have it continued until after the blood results were in? Do you have copies of all the discovery? Normally the PAS results are included in the police report, and there is a print out. The cases you point out are good for hearsay arguments based on the reports sought to be admitted. A good lawyer will be able to analyze all available arguments, even those beyond hearsay.
It is good that you are researching the law related to your case, but I would highly recommend hiring an attorney to handle your DMV case (as well as the criminal matter). Generally the DMV would have to jump through some hoops to try to get PAS results into evidence even if the results were listed in the DMV discovery, so I am not surprised to hear they are moving forward even without the PAS results listed.
Also, there may be a lot defenses to make in your case that can be assessed once a DUI attorney looks further into the matter. Good luck.
Even if there is a problem with the DMV discovery, the DMV is notorious for admitting items anyway or finding ways to fix their own problems (e.g. continuing your hearing four times because the officer refuses to honor the DMV's subpoena), therefore even if you have identified an issue with your case, it is useful to have an attorney handle the matter for you.
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I am familiar with the Molenda v. DMV decision. It was decided in favor of the driver on technical grounds which require knowledge of the technical issues to be presented. In fact, if you look at the case of Miyamoto v. DMV (decided in 2009 after Molenda) 176 Cal. App. 4th 1210, you will think the court would have ruled in favor of the driver. It did not. It ruled in favor of the DMV. The key issue presented in your case is answered by the following quote from the Martinez case: ‘How soon a writing must be made after the act or event is a matter of degree and calls for the exercise of reasonable judgment on the part of the trial judge.’ ” (Martinez, supra, 22 Cal.4th at p. 128, fn. 7.) .
One of the problems in a DMV case is that the prosecutor (presenting the case in favor of the DMV) is the same person that acts as a referre. Thus, the referee and prosecutor rule on the admissibility of the test results, etc. in the first place and usually lets everything in (including the kitchen sink). The other problem is that if you disagree with the DMV prosecutor/referee, then you have to file a petition for writ of mandate in the superior court and it is not cheap to do so.
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