Are DMV hearings difficult to win after a DUI? I have a .08 BAC reading postings it seems extremely difficult to win these. I have a lawyer and he says I have no chance after reading my case file. Is this good advice? Do I need an expert toxicologist for the DMV hearing? My lawyer doesn't think so...
Your Lawyer knows much more than any of us here. But in general DMV hearings are hard to win. Here is who the prosecutor is - The DMV Hearing Officer and here is who the judge is - The DMV Hearing Officer. Three things must be shown (1) Were you the driving the vehicle (2) at the time you were driving was your BAC .08 or higher (3) did the officer have probable cause to arrest you. If one of those fails you win. Well, the reports are really well written. What would the toxicology person testify to? So, in general DMV hearings are very one-sided. However, with that said, you there are cases that definitely win! But, I and we in this forum don't know what you and your attorney know, so there is no way of answering this question. But, if you are having trust issues with your attorney, maybe you should find a new one?
DMV hearings are tough to win, but a .08 test result can be won in many cases. Being at the legal limit increases the number of defenses, giving your attorney more ways to win. Recent case law has actually helped us win more .08's. Defenses range from margin of error to rising BAC to machines reading high on accuracy checks. Your case may or may not need a toxicologist to testify at DMV, but what you probably do need is a second opinion from a DUI lawyer who can review your police report and give you a free consultation.
While the difficulty of winning at a DMV hearing depends on the facts of your specific case, most DMV hearings result in a "loss" for the driver. I suspect your attorney is appropriately managing your expectations as he's seen your file. However, this provides an excellent opportunity for your lawyer to gather evidence for your trial since the trial and DMV hearing are separate animals altogether.
Your attorney will likely cross-examine the arresting officer and be well-prepared to defend you at trial based on the testimony elicited from the arresting officer.
Remember that the DMV hearing is not like a trial. The adjudicating official is not a judge...just a DMV employee. Also, the rules of evidence do not apply like they do in trial. Thus, you can use an expert at trial but not at the DMV. Trust your lawyer and cooperate with him or her to the fullest extent possible. You're paying for a service so best not to go against it.
No one can give you an opinion without looking at the report, and in particular, the type of sample taken. Assuming that it's .08/.08 and a breath test, an expert witness might provide evidence of the margin of error of such devices, as well as particular personal factors that make a lower result more likely to be the correct one.
You should keep in mind that no one who actually has experience with these hearings in California considers the process fair. The hearing officers are almost all universally biased, and face actual career repercussions if they set aside too many suspensions. In most cases, an experienced DUI attorney will make their attack to create a record, then when you lose anyway, will "appeal" the decision to the Superior Court where a civil judge may be more receptive to your argument.
Of course, that costs more, but in my experience, that is often what is necessary to win.
A .08 increases your likelihood of success. That said, DMV hearings are still hard to win, and very rarely will any one piece of evidence do the job. You're attorney needs to issue subpoenas for other relevant documents in order to find out what other issues are involved in the case. My office NEVER takes the police report as the final word. We always subpoena additional documents in preparation for DMV hearing. You never what kind of good information you can find by doing so.
Ultimately, success will depend on how much preparation is done and how the case looks with that additional information. DMV hearings are hard to win, but it can be done. We have lost some with .08 BAC's, and have won some with .24 BAC's. Like the other attorneys said, it depends on the facts of the case.
DUI's in general are some of the most complex cases in criminal law. You've taken the most important step and hired a lawyer to represent you. Your attorney has seen the discovery in your case and is in a better position to advise you. If you do not feel comfortable with that advice, you are free to consult with other attorneys to find someone you are more comfortable trusting. Many attorneys, like myself, offer free initial consultations.
DUI's come in many flavors and there are a number of defenses available. Only after reviewing your discovery can an attorney properly advise which, if any, are applicable in your particular case. I'm curious as to why he would advise you had no chance, unless he was only advising regarding the DMV hearing. And no, it is not common for soemone to hire a toxicologist for a DMV hearing. In fact, many times a defense attorney will not hire a toxicologist for trial if they feel that they can get what they need from the state's expert from DOJ who will testify.
Remember that this is a public forum and that it's available to both defense attorneys and prosecutors, so I usually advise against giving too many specifics about your case but without knowing more it is impossible to give an opinion.
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