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  1. #21
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    Default Re: Driver's License Suspended by DMV After Acquittal in Jury Trial

    Quote Quoting Melandra
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    One of the reasons why the jury decided those two were lying, sir. They should have chosen someone who was much less intoxicated to switch my blood with. I'm fairly certain that this is what they did.
    Knowing how the process works, I very much doubt the police switched your blood with anyone. It would be a near impossibility and would require so much risk of detection that the idea is ludicrous.

    An error at the lab is certainly possible, but an intentional act of misconduct? Very, very doubtful ... at least not at the officer's end. If you'd like, I can articulate the process and then you can figure out how they might have done it, but unless they were really looking to frame you and that was worth a federal prison stint, I can't imagine them taking the kind of risk that would require, and the very high likelihood that it would be discovered.

    If they were going to add pure alcohol, they'd have to know exactly the amount to put in, so it didn't come up 2.2% or whatever. I don't even know if that's possible, to add straight ethanol and have it come out as a 'probably didn't die' amount, or a 'more than is legal, but little enough that you might not notice without a blood test'. Wouldn't that destroy the sample, to add that?
    It would be so adulterated as to make the sample suspect ... and, it would change the test results drastically. Straight alcohol is different from the alcohol that is carried by way of the blood cells.

    Oops, I guess I put my decimal point in the wrong place. .08 is the legal limit, and my blood test came back at .03 above that.
    Correct. Hence my assumption that it was .11 and not 1.1. It's a common error.

    - Carl
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM

  2. #22
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    Default Re: Driver's License Suspended by DMV After Acquittal in Jury Trial

    Quote Quoting Melandra
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    I was not trying to "biff" the test, as you accused me of before.
    I did not accuse of this, I said this is what some people do. I have no idea whether you did or not.

    This officer would not allow me to complete the test. I find it very scary that a person under 21 can be railroaded this way, with no recourse other than hiring an attorney at a cost of big $$ to prove misconduct.
    You believe you were railroaded ... it is also possible that the device was not working, or, the officer thought that you were screwing with the machine.

    I was not charged with those.
    Strange that you weren't. Unless they had objective symptoms of impairment, I would think they should have tried. I'd say the DA's office kinda biffed it.

    Aha! Now you're starting to get it. The jury was also flabbergasted. And appalled, and outraged. And I am not exaggerating. No less than 5 of them told me they couldn't believe how the taxpayers money had been wasted to bring this thing to trial--and for what?!
    Sounds like the DA needs to have his head examined. Or, there was more to the case - perhaps the FSTs - then meets the eye.

    We knew what the test results were before trial. We just didn't know what could be done about that before the trial started. The DA refused to release their chain-of-custody evidence, even though he admitted that he had it. My attorney says that is a Brady Violation, whatever that is. The judge did not order the DA to release it, as he probably should have. That and the damaging testimony by the DOJ lab employee who tested the blood left the judge no choice but to exclude that evidence. The lab employees testimony hurt the prosecution, not me.
    Okay. If the lab screwed up, they screwed up, and the evidence was rightly excluded. That does not address the issue of probable cause for the arrest.

    If they did no have alcohol, and you were not arrested for 23136 or 23140, then to establish probable cause they would have had to base an arrest upon poor performance on the FSTs or some other observed behavior that led them to form the opinion you were impaired.

    If you had a preliminary hearing, then at least one judge has found there to be sufficient probable cause to proceed to trial. if you waived the prelim., then there may still be an opening for an arrest without probable cause. But, that will be up to you and your attorney to address should you consider a civil suit.

    Those blood test results were reported to the DMV and that is what they are "hanging their hat on".
    Okay, well NOW it makes sense. Except, that if they are hanging it on 13353.2 then you would appear to be correct that they would have to release the hold. I am not sure of what they could be thinking of.

    No, absolutely not. The more experienced one had been on the job only two years, and the other one, an academy graduate only 3 weeks earlier.
    One was in training and the other was his FTO. And if they were sheriff's deputies, then they likely have little DUI experience, anyway. Most sheriff's offices have an MOU with the CHP to handle DUI, only when they work contract cities do S.O.'s tend to work DUI ... or, when the CHP is unavailable. It's likely they had little experience at DUIs at all ... which further adds to the mystery as to why the DA filed the case. Mine would have run away screaming.

    Then why did they? I suspect they did it to try and shield these two poor excuses for law enforcement officers.
    It's a rare DA's office that will go out on a limb to shield a couple of cops who make a bonehead move. If they filed, they didn't do it to protect the cops, they did it because they thought they had a case. Perhaps they thought they had a case before it came out that the lab situation was messed up or the chain of custody was broken somewhere along the line. But, filing to "protect" an officer is something I read about in stories and on TV shows, but have found it tends to be the other way around in real life. Very often the DA will NOT file as a way to protect the officer ... no filing minimizes the damage and the potential civil liability - going through this only exposes them all to potential liability.

    Maybe to make me use up all my money so I couldn't go after them in civil court? Well, that's not going to stop me.
    Do you have an attorney willing to take the matter on contingency?

    Easier said than done. I have contacted the presiding judge, and he says he has no authority to overturn the DMV's decision and that I should try a civil court judge.
    I believe there is an administrative court hearing process that can be accessed, but off hand I don't know the procedure. It might be buried on the DMV website somewhere.

    I told her about section 13353.2(a), and asked what I could do to have that law obeyed so I could get my license back. You know what she told me? That the DMV supervises the courts, so if the DMV says my license is suspended, no court could overturn it. That's the first I've ever heard of that! The DMV supervises the courts? WTF?
    The DMV has the final authority on licensing issues to a great degree. They don't "supervise" the court, but the authority to suspend, revoke, or issue lies within the DMV.


    - Carl
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM

  3. #23
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    Jan 2009
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    Default Re: Driver's License Suspended by DMV After Acquittal in Jury Trial

    I think I found the avenue for relief, if I can figure out how to file one of these things. It's called a "peremptory writ of mandanus". It was actually mentioned in the text of the DS 367M you mentioned. I didn't know that form number was my notice of suspension until I googled it. Then I gave it another once-over (like I hadn't already dozens of times!).

    From Wikipedia: "A Peremptory Mandamus, or peremptory writ of mandate, is an absolute and unqualified command to the defendant to do the act in question. It is issued when the defendant defaults on, or fails to show sufficient cause in answer to, an alternative mandamus. It is one of the three types of a Mandamus.

    A more exact definition of a peremptory writ of mandate is "a final order of a court to any governmental body, government official or a lower court to perform an act the court finds is an official duty required by law."


    Maybe you can clear something up for me about that DS 367, Sergeant. The check box ".01% or above BAC PAS or other chemical test results" was checked. "Refusal of PAS or other chemical test" was not checked. I guess that's why the DMV hearing officer was using only the blood test results as the basis for his decision, because there were no PAS results or a PAS refusal to base it on.

    Is it possible that my breathalyzer test in the field was completed, and the officer prevented me from knowing that? When he pulled the breathalyzer away from me, he turned it away and wouldn't let me see the readout after any of the multiple times I attempted to take the test. Why would he have done this? Because he wanted a blood test to prove what he could not prove in the field? The only FST he gave me was the finger back and forth in front of my eyes, which he said I passed. Then he went straight to the breath test. No other FST's.

  4. #24
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    Default Re: Driver's License Suspended by DMV After Acquittal in Jury Trial

    Quote Quoting Melandra
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    Maybe you can clear something up for me about that DS 367, Sergeant. The check box ".01% or above BAC PAS or other chemical test results" was checked.
    That would indicate a positive PAS or chemical test result ... or, the reasonable belief that the chemical test would result in a BAC of .01 or higher.

    "Refusal of PAS or other chemical test" was not checked. I guess that's why the DMV hearing officer was using only the blood test results as the basis for his decision, because there were no PAS results or a PAS refusal to base it on.
    That would make sense.

    The DMV uses the 367 almost exclusively for the hearing. When the document is completed fully, and all the necessary elements are articulated, it is rare that they will even call the officer to testify in the DMV hearing. I've been subpoeaned for only three in 18 years, and one of those was not even MY arrest - I just provided the PAS test.

    Is it possible that my breathalyzer test in the field was completed, and the officer prevented me from knowing that?
    It's POSSIBLE, but I would have thought he'd put that in the report. If it were in the report, you should know that it at least showed a positive reading.

    But, he could have acted on the belief that your blood test was going to come back at .01 or higher and indicated so on the front of the DS 367.

    When he pulled the breathalyzer away from me, he turned it away and wouldn't let me see the readout after any of the multiple times I attempted to take the test. Why would he have done this?
    It depends on the machine. On our machines, we'd have to clear the error message and have it start over. Depending on the error, it might have to "purge", or it might just have to be cleared and made ready to blow again ... it might depend on whether any sample had been detected in the device or not.

    Because he wanted a blood test to prove what he could not prove in the field?
    Well, if he did no have a positive test in the field, and he did not suspect drugs, then taking blood (which is far more accurate) would have been a silly thing to do.

    The only FST he gave me was the finger back and forth in front of my eyes, which he said I passed. Then he went straight to the breath test. No other FST's.
    Well, THAT was a poor investigation on his part. While the HGN (Horizontal Gaze Nystagmus) test is the single most effective of the Standardized FSTs, its accuracy alone and without the other tests is still only about 80% (I have the actual numbers somewhere, but the exact value is not important here).

    In the report he HAS to have articulated probable cause to make the arrest or he could not have taken you in for a blood test. On what did he base his probable cause? Certainly he had to articulate something! If he did not, and the DA STILL brought this to trial, then I am glad I don't live where you do because the DA and the S.O. would have to be buffoons.

    - Carl
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM

  5. #25
    Join Date
    Jan 2009
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    Default Re: Driver's License Suspended by DMV After Acquittal in Jury Trial

    Well, remember I said upthread that he admitted in court that he had no probable cause to arrest me?

    But none of that does me any good. My license is still suspended.

    I'm now researching paying some online outfit to fill out one of these mandanus things for me and mail it to me so I can file it myself. I wish I could get my attorney to do it, but I owe her money, so she's not going to help me.

    Anyone have any recommendations for one of these online pay for legal services places that handle docs for you?

  6. #26
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    Default Re: Driver's License Suspended by DMV After Acquittal in Jury Trial

    Quote Quoting Melandra
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    Well, remember I said upthread that he admitted in court that he had no probable cause to arrest me?
    I don't recall it, but, okay. He actually said, on the stand, "I didn't have probable cause to arrest him." ??? That would have been foolish. Or, is that an inference you take away from his testimony?

    Anyone have any recommendations for one of these online pay for legal services places that handle docs for you?
    Heck, I didn't even know there were firms that did that.

    Good luck.

    - Carl
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM

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