Driver's License Suspended by DMV After Acquittal in Jury Trial

[Melandra]

My question involves a driver's license issued by the State of: California

I was acquitted (found not guilty) of 23152(a) and 23152(b) VC in a jury trial. The DMV suspended my license anyway, based on the blood test results. They are within their legal right to do so if:

1. I was found guilty
2. Charges were dismissed
3. Charges were not filed

But NOT with an acquittal, according to state law.

The paperwork sent by the hearing officer, under "Appeal Rights" shows the vehicle code section under which I would be appealing, 13353.2(a) VC. When reading this law for specifics, I found that they have no legal right to suspend my license, according to the very law they cite.

"If a person is acquitted of criminal charges relating to a determination of facts under subdivision (a),...the department shall immediately reinstate the person’s privilege to operate a motor vehicle if the department has suspended it administratively pursuant to subdivision (a), and the department shall return or reissue for the remaining term any driver’s license that has been taken from the person pursuant to Section 13382 or otherwise."

Seems clear to me. All other subsections in this law do not apply. Is this a clerical error? How is it that a state DMV officer is ignorant of a law they deal with frequently during the course of their duties? I paid my $120 bucks for the appeal, citing the law and including a copy of the court minutes that show I was found not guilty. I also have a form DS702 on the way for the DA to sign, and I will schedule a court date this week to overturn the DMV decision (DMV also notified me that this was my right within 34 days).

If they decide to uphold the suspension, under what legal authority would they be doing so?
http://dmv.ca.gov/pubs/vctop/d11/vc23152.htm
http://dmv.ca.gov/pubs/vctop/d06/vc13353_2.htm

[aaron]

Did they have any other grounds to suspend your license? e.g., refusal of breath testing?

[Melandra]

Their portable breathalyzer that they used at the scene wasn't working properly, so they took me to the hospital and demanded blood. They wouldn't let me take a breathalyzer or a urine test, so I let them take blood. They couldn't say in their report that I refused a PAS, because I tried to take that test to prove I hadn't been drinking. They said I was being uncooperative, and I said, "no, your device isn't working right".

[cdwjava]

Since you are not legally required to take the field PAS that shouldn't be an issue.

Under what authority has your license been suspended?

- Carl

[THEAMAZINGCHAN]

tell them what you just told us.
perhaps they will reinstate you with no issues?

[Melandra]

I am under 21, (I'm 20), so I am required by law to take the PAS test, which I did. They actually would not let me complete the test because the whole time I was blowing into that thing, the readout remained zero, so the cop kept pulling it out of my mouth and saying, "You're being uncooperative." I wasn't, and I tried 5 maybe 6 times to complete the PAS at the scene, so they couldn't say I was a refusal. I told him he was the one handling the thing, so if I couldn't finish the test, there must be something wrong with it. Same thing at the hospital on the bigger machine that gives you a printed receipt and records the test. I tried 5 or 6 times, each time the readout stayed at zero, (because I had not been drinking!) but he wouldn't let me finish, so we never got one of those little receipts that would have proved it. I think that was the point of not letting me finish the test. Those two were determined to arrest me, no matter what, and they didn't want any immediate, verifiable proof that they were wrong. But that's a matter for a civil court. Anyway, I gave a blood sample. They wouldn't let me do urine.

Under what authority is the DMV suspending my license? That's what I want to know! I already paid my fee to them for an appeal, pointing out that they had not followed the law. So, we'll see.

[cdwjava]

I am under 21, (I'm 20), so I am required by law to take the PAS test, which I did.

Okay ... but, as I asked, under what authority was your license suspended?

On your DMV printout it will actually state the code section under which your license has been suspended. For example, VC 13353 or something.

They actually would not let me complete the test because the whole time I was blowing into that thing, the readout remained zero, so the cop kept pulling it out of my mouth and saying, "You're being uncooperative." I wasn't, and I tried 5 maybe 6 times to complete the PAS at the scene, so they couldn't say I was a refusal.

Failure to successfully complete the test is a refusal. Unless the machine was broken, they can claim you screwed with the machine ... people do that all the time. They are not that difficult to do, so if you could not complete it, then it is reasonable to assume that you chose to biff it ... that's a refusal.

I told him he was the one handling the thing, so if I couldn't finish the test, there must be something wrong with it.

You're the one blowing, not him. Unless the police admit that the machine was broken, you may be out of luck if the failure to blow is what the DMV is hanging its hat on.

Same thing at the hospital on the bigger machine that gives you a printed receipt and records the test. I tried 5 or 6 times, each time the readout stayed at zero, (because I had not been drinking!) but he wouldn't let me finish, so we never got one of those little receipts that would have proved it.

If there was no printout it means you failed to complete at least two blows ... though I'd be interested in what machine was used, because most would at least allow a printout indicating a failed blow.

Anyway, I gave a blood sample. They wouldn't let me do urine.

They do not have to let you do urine.

What did the blood test come back as?

Under what authority is the DMV suspending my license? That's what I want to know! I already paid my fee to them for an appeal, pointing out that they had not followed the law. So, we'll see.

Look at your DMV printout if you have it - it'll be on there.

- Carl

[Melandra]

I gave the relevant links at the bottom of my first post. The suspending authority under which I appealed, as per the DMV notification is section 13353.2(a). The only part that relates specifically to an acquittal, and the only means by which I can retain my license is 13353.2(a)(2)(e), which is my circumstance exactly. I was not already on probation for DUI, and I am not a commercial driver. Now, how can I be punished in excess or what a person who was found guilty or pleaded to lesser charges would get, i.e. a restricted license, to and from work, to and from treatment program, etc.

I am handicapped, and I have a permanent handicap placard issued by the DMV. I live in a rural area, and I can't go to school if I can't drive.

[cdwjava]

I gave the relevant links at the bottom of my first post. The suspending authority under which I appealed, as per the DMV notification is section 13353.2(a).

I thought you were asking under what authority they had suspended your license as in, you did not know. My guess would be that it is for CVC 13353.1 (refusal to take a PAS) but that is just a guess. Your printout would have the appropriate authority.

If they suspended for having a BAC of greater than .01 and being under 21, then that would seem to indicate that your blood test came back at higher than .000 as you imply your breath test would. What was the BAC on the blood test? If no chemical test, then suspending for a BAC of over .01 pursuant to CVC 13353.2 would seem to be legally impossible.

What BAC did the blood test return? If anything but .000, then you'll have to go forward with the appeal of the suspension and HOPE that they suspended under 13353.2 and not 13353.1. If it came back .000 but positive for other drugs, then that may be a different ballgame.

- Carl

[Melandra]

If they suspended for having a BAC of greater than .01 and being under 21, then that would seem to indicate that your blood test came back at higher than .000 as you imply your breath test would.

Yes, that's what the DMV hearing officer's report said. But as I said, I had not been drinking, but there was nothing I could do about this in criminal court. The blood test results were not allowed into evidence because of what the arresting officers and the testing lab had done with it. But that is a matter for civil court. To answer your other question, the blood sample was not tested for drugs, but I don't do drugs, so I was not under the influence of that, either. It was not stated in the officers report or the DMV guy's report that I had refused the PAS. The suspending authority was under the other code, as I said.

Where are you getting that I implied my breath test would come back at higher than .000? I was anxious to take the breath tests to prove that I hadn't been drinking and then they'd go away and leave me alone. There was no reason why I couldn't complete those tests. I had plenty of air in my lungs to continue until I got the green light. But the officer kept pulling the tube out of my mouth to keep me from completing the test, each and every time. I am not imagining this or making up some fanciful story that I wish were true. He did this, and he did it deliberately. I had never used one of these devices before. I was assuming, maybe wrongfully, that when a person blows into it, the readout moves up until it finally stops and you get the green light that you can stop. Or does it stay at zero until you get the green light, and then display the results? It stayed at zero while I was blowing into it, and he wouldn't let me go long enough to get the OK.

You can believe me or not sir, but after the presiding judge dismissed the jurors, several of them approached me to tell me how sorry they were that this had happened and that it should never gone to trial. The two main reasons they gave for voting not guilty were that the officers had no probable cause to arrest me, and they believed that both officers had lied under oath, and in their report. One of the reasons for this (and there are more) was because the arresting officer admitted on the stand that he did not believe that I was under the influence! But again, that's a matter for civil court. The law enforcement agencies don't screen their applicants as well as they once did.

In a twisted sort of way, I'm lucky the charges were not dismissed. According to 13353.2, if my charges had been dismissed, the DMV would have the legal right to suspend my license for a year, and there would be nothing I could do about it. At least with an acquittal I have a chance.

According to DMV rules, I can't use any evidence gained through discovery or trial for my appeal, only evidence that was presented at the DMV hearing. The single exception to that is in the case of acquittal.

What legal authority or judicial mechanism is there to compel the DMV to follow the law? I guess I need an experienced judge or a long-time DMV employee to answer this question, and not a cop.