The One-Sided DMV Hearing

Many of my DUI clients are surprised to learn that there are two different processes following a DUI arrest; the court case and the DMV (also known as the Administrative Per Se or APS action).

The DMV’s only concern is whether the driver had a blood alcohol content of 0.08 percent or more or whether the driver refused a chemical test. If the DMV finds either or both, the driver’s license will be suspended. To ensure due process, the driver has the right to request an administrative hearing to challenge the DMV’s evidence.

However, unlike the court case, the DMV hearing does not ensure the safeguards that we normally associate with the court system and due process.

Imagine a criminal court case in which the defendant attends the hearing at the prosecutor’s office. During the hearing, prosecutor argues for a conviction. Immediately following the argument, the prosecutor throws on a robe, steps up to the judge’s bench, and rules on his own argument. This is exactly how the DMV hearing operates.

To start, the standard that the hearing officer must meet to win the hearing (and suspend a driver’s license) is much lower than that of a criminal case. A prosecutor in a criminal case must prove beyond a reasonable doubt that the driver was either 0.08 percent blood alcohol content or “under the influence.” A DMV hearing officer must only prove more likely than not that the driver was either a 0.08 percent blood alcohol content or that they refused the chemical test.

The DMV, the same agency which is trying to sustain the suspension, is the agency which conducts the hearing. The DMV hearing officer, who is a DMV employee, conducts the hearing. The hearing officer can object to the driver’s evidence. The hearing officer can rule on his own objection. Finally, the hearing officer decides if he or she wins. They almost always do.

Hearsay statements, which are generally excluded from court cases because the person making the statement cannot be cross examined, are admissible in DMV hearings. Most of the time, arresting officers are absent from DMV hearings. If a driver wishes to cross examine the arresting officer who wrote the report, he or she must subpoena the officer at his own cost. This includes paying for the officer’s salary for the time that they attend the hearing.

If you’re thinking that the hearing officer must have a background in law, you’d be wrong. According to the DMV’s employment eligibility requirements, a hearing officer need not even have a college degree.

If all of that wasn’t bad enough, since the APS is considered a civil matter, a driver does not have the right to an attorney’s assistance at the DMV hearing.

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Can a Fever Really Cause an Elevated Breathalyzer Result?

Breathalyzers don’t test you. They test the “average” DUI suspect.

Breathalyzers cannot adjust themselves to every individual who provides a breath sample. Therefore they are calibrated to assume that all people who provide a breath sample are all the same. The breathalyzer assumes that no one has gastroesophageal reflux disease (GERD), no one is dieting, no one is hypoglycemic, and that everyone has the same core body temperature of 98.6 degrees.

This, of course, is not true. In fact, we are all different. And many people who provide breath samples after a California DUI stop do suffer from GERD, are on a diet, are hypoglycemic, and have an elevated body temperature.

And unfortunately all of these things, including an elevated temperature can cause a false reading on a breathalyzer.

In a 1989 study which was published in the Journal of Forensic Sciences test the effect of body temperature on breathalyzer results. Subjects were given a breathalyzer and a blood test after sitting in a hot bath tub. The breathalyzer readings were significantly higher than the blood tests.

In the 1990 study “The Myth of Breath Test Accuracy, What the Studies Have Really Shown,” researchers concluded that one degree centigrade change in breath temperature can cause a change in blood alcohol content reading by 6.5 percent.

Other studies have estimated the change to be as high as 9 percent. This could be the difference between a blood alcohol content reading of 0.07 percent and a 0.08 percent, which we all know is illegal to drive with.

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Officer Too Drunk to Accept MADD Award

Hypocrisy does, sometimes, show itself with those who are tasked with combating drunk driving.

A report recently obtained by WFLA-TV detailed how a Pinellas County Sheriff’s Deputy was too drunk to accept an award for making 100 DUI arrests at a Mothers Against Drunk Driving banquet.

According to the report, Michael Szeliga was to attend a two-day DUI training session and the MADD banquet in Fort Lauderdale.

Szeliga initially attended the training, but admittedly left during a break with two other officers. Szeliga was leaving the DUI unit to become a detective and, therefore, did not believe the training to be relevant. After leaving the training session, Szeliga began drinking whiskey and coke by the pool at the hotel he was staying at.

That afternoon when a hotel fire alarm sounded, Szeliga was spotted in the hallway of the hotel in nothing but his boxer shorts. Witnesses said that he appeared to be intoxicated.

At the MADD banquet, Szeliga was confronted by Gulfport Police Chief Robert Vincent who told Szeliga that he was too intoxicated to be at the event and accept the award.

“You probably don’t want to be here, this isn’t appropriate,” Vincent said he told Szeliga.

Szeliga responded by throwing rude comments at Vincent.

Vincent reported the incident to Szeliga’s supervisor who sent Szeliga back to his room.

After an internal affairs investigation where Szeliga denied being too drunk to receive the award, the deputy received one day of paid suspension and was forced to write a letter of apology to Vincent.

The conference at which Szeliga’s drunken antics took place was paid for by MADD.

“It was wrong, and again, one of the most ridiculous things I’ve heard of,” said Pinellas County Sheriff Bob Gualtieri. “When I first heard about it, that was (what) my reaction was. ‘Come on, you’ve got to be kidding me. Really?’”

What’s more, since the incident, Szeliga has been promoted, yes promoted, to the detective position that he used as the reason for skipping out on the DUI training.

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San Diego Prosecutor Sentenced on 2nd DUI in Two Years

Deputy District Attorney Rebecca Ocain was sentenced by Judge Matthew C. Braner last month for her second DUI in two years.

In early October, Ocain pleaded guilty to misdemeanor drunk driving and hit-and-run. At the time of the incident, she drunkenly crashed into the wall of a cemetery breaking her arm. Ocain asked a minor who witnessed the collision for a ride. When the minor told Ocain to wait for the police to arrive, Ocain fled the scene on foot. She was arrested a quarter of a mile from the scene.

An hour after the collision, Ocain submitted to a chemical test which revealed a blood alcohol content of 0.30 percent.

A prosecutor from the Deputy Attorney General’s Office prosecuted Ocain’s case to avoid a conflict of interest with the District Attorney’s Office.

Last year Ocain pleaded guilty to a DUI and having a blood alcohol content of 0.28 percent.

“This is a person who has devoted her entire career to making the world a safer place for everyone,” Ocain’s defense attorney, J. Gregory Turner told Judge Braner. “Ms. Ocain let herself go and lost focus. She lost track of who she was.”

Judge Braner ordered Ocain to wear an alcohol-monitoring anklet for 90 days. Ocain is to then enroll in a home detention program for 125 days. Additionally, Ocain fined $2,635 and ordered to enroll in a DUI program for multiple offenders.

Ocain should consider herself lucky to not actually serve jail time for this DUI as many prosecutors, like herself, would have pushed for actual jail time for an incident like this.

Let’s hope that Ocain remembers this the next time she prosecutes someone for driving under the influence.


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Teen Invents DUI-Detection Device

13-year-old Krishna Reddy is doing something most junior high schoolers wouldn’t even consider; finding a way to reduce the number of drunk drivers on our streets.

Reddy sought to create a device, unlike standard breathalyzers, that could test whether someone was under the influence of marijuana and other drugs in addition to alcohol.

Reddy’s “DUI Detection Device” measures the constriction of the pupils when light is flashed into the subject’s eyes. While a flashlight is shown through, believe it or not, a toilet paper roll to concentrate the light, a camera captures the pupil’s degree of dilation.

As you may or may not know, our pupils automatically filter the amount of light that gets into our eyes. When it is bright or when we look into a light, our pupils constrict, or get smaller. When it is dark, our pupils dilate, or get bigger. This is known as the pupillary reflex. Alcohol and other drugs affect how our pupils react to light sources. For example, alcohol and opioids can cause constriction in the pupils while cocaine and LSD can cause dilation of the pupils.

Software, also created by Reddy, analyzes the pupillary reflex to determine if the subject has used alcohol, marijuana, painkillers, sleep aids, or amphetamines.

We have yet to see if Reddy’s invention goes mainstream. In the meantime, Reddy is one of 10 finalists in the Discovery Education 3M Young Scientist Challenge. The annual competition awards a $25,000 prize to America’s top young scientist.

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