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Can testimony and/or results of a DMV re-examination hearing be used in a future DUI proceeding not yet filed by the DA?

Mission Viejo, CA |

The re-examination process at the DMV is slogging along, and there's nothing happening in the courts. My BAC was 0.00% and the urinalysis returned positives for amphetamine (for which I have a prescription) and THC (which I swear on my daughter's life is a false positive.) As I explore the possible causes for my loss of consciousness with my doctor (narcolepsy, extreme fatigue and stress, hyperglycemia, and/or a silent stroke as evidenced by a tiny infarct in my brain by MRI), the DA has yet to file charges. In a DUI case where alcohol was not present and there's no clear chemical culprit on the urinalysis, can the DA hang back and see what transpires with the DMV then use that as evidence in a future case he or she might file?

Attorney Answers 4


  1. The prosecutor can use statements you make as evidence against you. How likely they are to look at what happened in the DMV depends on the prosecutor. Most give little weight to DMV proceedings. The presence of controlled substances in the test result will be a problem for you. This can even be true of prescription medications. You should be consulting a local dui / owi / dwi / drunk driving defense lawyer, now.

    Often people think that because it isn’t a murder case, a drunk driving case is simple. Nothing could be further from the truth. These cases can be among the most complex a criminal defense lawyer handles. The government is willing to spend an incredible amount of money to convict you though. They will have expert witnesses available for consultation and trial.

    That you have been charged or that some contraption says your alcohol level was at a certain level does not mean that you are guilty. It certainly does not mean that you can be proven guilty using competent, valid evidence.

    Field sobriety “tests” are designed to give police a reason to arrest. You cannot “pass” them. The police will admit that almost a third of healthy young adults who take these tests without any alcohol will be judged to be “under the influence” – and that assumes they are properly administered!

    After even a first drunk driving conviction, you may face employment discrimination. You will certainly be charged higher for insurance. Having such a conviction will also make you a target for drunk driving arrest in future interactions with police. You will automatically become a suspect.

    You will want a lawyer who is familiar with field sobriety “tests,” perhaps one who is certified to administer these tests. You will want a lawyer familiar with the weaknesses of the contraptions that are used to report alcohol or drug levels. You want an experienced trial lawyer, used to cross-examining police officers. Police officers are practiced, experienced witnesses.

    That is, you want an experienced drunk driving defense lawyer, whether you call the offense DUI, OWI, DWI, OUI, or drugged driving.

    If any answer on AVVO helps you, mine or someone else’s, please mark it as "helpful" or "best answer" to help AVVO know which answers to show others.
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    --- Experienced DUI/DWI/OWI/Drunk Driving Lawyer in Madison, Wisconsin
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    --- Facebook Page Madison (Dane County) Wisconsin Drunk Driving / OWI / DWI / DUI Lawyer
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    --- Field sobriety "tests" – Madison (Dane County) Wisconsin DUI / DWI / OWI / Drunk Driving lawyer
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    --- Drugged Driving/DUI/DWI/Drunk Driving with Prescription Drugs – Madison (Dane County) Wisconsin
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    --- Which Offenses Count as Priors in Wisconsin? - Madison Dane County Wisconsin DUI OWI Drunk Driving Lawyer answers
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    --- Ten Days to Save Your License - Administrative Suspension and Refusals in Madison (Dane County) Wisconsin
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    I am an experienced Wisconsin drunk driving (DUI/OWI/DWI) defense lawyer practicing in Madison (Dane County) Wisconsin. The laws in each jurisdiction can be very different. I cannot give legal advice over the Internet nor can I establish an attorney client relationship with you.

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  2. I agree with the response of Mr. Kenyon. Retain an experienced criminal defense attorney and explore all options to protect your rights.


  3. In theory, yes. However, in practice, most prosecutors are entirely unaware of what happens at a DMV hearing. Additionally, because the prosecutor is a not a party to the action, it may be difficult for them to obtain a copy of the recording of the testimony at a DMV hearing. I'm hoping you have an attorney helping with all of this, and you should be talking to them about these issues. If you don't have an attorney, I strongly recommend consulting with one who specializes in DMV related matters. Good luck.


  4. Most definitely. Similarly, you can also use what transpires in your DMV hearing to your benefit if you had or will have the arresting officers subpoena's to the hearing and your lawyer does some effective cross examination. If there is testimony in the DMV hearing that is helpful to your defense you most definitely want to use that to either negotiate away your DUI, or at trial if the case should go that far. If you have not had your hearing yet make sure you have competent counsel in place. If you think that you would incriminate yourself at the hearing you and your lawyer will have to make a judgement call as to whether or not you should testify. You are not compelled to testify in your hearing, and if you dont testify then there won't be anything new the DA can use against you they won't already have from the arresting officers. You want to coordinate these proceedings carefully and evaluate the pros and cons of testifying.

    Brian Michaels
    Los Angeles Criminal Defense Lawyer
    www.socalcrimdefense.com
    3109919179

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