San Bernardino County DMV Hearings

EXCESSIVE BLOOD ALCOHOL HEARING (.08)

There are 3 issues that must be met when the DMV is trying to take away your license.

ISSUE 1:

Did the officer have reasonable suspicion to believe you were driving in violation of cvc 23152  or cvc 23153. This requires that the cop had reasonable suspicion to believe you were a) driving the vehicle and b) you were driving while over the limit. Many times the problem with the DMV’s case will be that they use hearsay to show element (a) and the issue of whether or not you were driving can be shown under element (b).

ISSUE 2:

Were you lawfuly arrested?  This is required under cvc 23612(a) and Mercer v. DMV (1991) 53 Cal.3d 753.   There are 2 elements to a lawful arrest; (a) was there reasonable suspicion for the stop (b) was there probable cause for the arrest.   Whether or not the officer had reasonable suspicion for the stop will rest on the abundant consitutional case that support and define the 4th Amendment to the United States Constitution which is the guardian to our free liberties as an American.    The officer must also establish that you were under the influence of alcohol prior to the arrest.

                  Element (a).  The officer must observe a violation of the law. His observation will be tested objectively against the reasonable officer standard.  This is the usually element where the officer’s fail to follow the U.S. Constitution. When we see a violation of the 4th Amendment we make a challenge under Penal Code 1538.5.  If the motion is granted by the court then an imaginary line in time is drawn and everything the officer observed or collected cannot come into evidence. If there is no evidence then there is no case.

ISSUE 3:

Were you driving a motor vehicle while your blood alcohol level was over a .08%

 

 

DUI Checkpoints

DUI CHECKPOINTS AND THE LOSS OF YOUR CONSTITUTIONAL RIGHTS

Ingersoll v Palmer (1987) 43 Cal.3d 1321 is the controlling case in California which deals with DUI Checkpoints.  Prior to Ingersoll Checkpoints were considered illegal.  If you take a minute to think about it what other country in the world have checkpoints? Europe? Germany ? China? Japan? Mexico? Cuba?   Are we as free as we think we are?

Because of the political climate and the pressure from such groups as MADD, our government has decided that it was perfectly fine to take away some of your rights in order to make these groups happy. 

The Ingersoll court came up with 8 factors in determining whether the intrusion was reasonable or not under constitutional scrutiny.

a)     The decisions made at the supervisor level;

b)     Was the location reasonable;

c)     Maintenance of the safety conditions;

d)     The limiting of the discretion of the officers in the field;

e)     The duration and time of the checkpoint;

f)      Advanced publicity to the public;

g)     Indicia of the official nature of the checkpoint.

 

HOW TO BOIL A LIVE FROG?

How do you boil a live frog?  Do you throw him in a pot of boiling water? No, if you do that he will make every effort to jump out, but if you put him in a pot of cool water and slowwwllllyyy turn up the heat he won’t know what hit him.

What does this have to do with a DUI Checkpoint? Everything!  When DUI Checkpoints first started they did one thing, they check for DUI’s.  Today, if you go through a DUI Checkpoint what do you see? You see them check for license, registration, and proof of insurance.  If you take the average DUI Checkpoint they will stop 200 plus vehicles, make 2 DUI arrest, and impound 30 cars for NON DUI reasons.   These Checkpoints are a money generating source for the police agency that puts them on. Not only do they receive federal funding, they make money off your impound fees, booking fees, etc.

Blood Test

Where do those magic BAC numbers come from? Is there some scientist looking at my blood underneath a microscope? Are the numbers ever wrong? What outside factors can falsely increase a BAC?

The 3 main problems that occur with the blood process are; fermentation, coagulation, and hemolysis.  These will occur during the a) the collection process b) the storage process, and c) the testing process.

 

THE COLLECTION PROCESS

When the blood is not collected in a medically approved manner then that can lead to problems in trusting the final BAC result. It all starts in the collection environment. Was your blood drawn in a hospital setting or was it done in a dirty underground garage? Or worse, out on the side of the road with your arm flopped over the hood of a patrol car. Correct procedures require that the puncture site be properly clensed with a non alcohol based solution. The arm should be clensed in an outward circular motion and not in a back-and-forth wiping actions. The idea is to have any microbial germs moved away from the area where the needle with puncture the skin.

When your blood was collected was the vial 1/2 full? 3/4 full? Did the phlebotomist invert the vial 16 times? Did the phlebotomist collect more than one persons blood at a time? Did they mix up the blood vials?

Arterial or Vein? The phlebotomist is suppose to draw blood from a vein. In the event they miss the vein and draw blood from an underlying artery the end result will be a falsely higher BAC.

Blood Vial : In most blood draw the phlebotomist is using a Beckton Dickinson Vacutainer. This vial is 10ml, has a grey rubber top, and contains the chemical sodium fluoride and potassium oxalate. The soduim fluoride is suppose slow the naturally occurring fermentation process while the potassium oxalate is suppose to prevent coagulation of the blood. The occurrance of fermentation and coagulation can have a false negative effect on the final BAC result.

Fermentation: Fermentation is the self growth of alcohol within the blood vial. How do you make wine? You take a sugar (grape) and a bacteria (yeast) let it sit for a while and what do you have? wine. Well, what is happening in your blood vial? You take a sugar (glucose) and a common bacteria such as Candida Albicans, let it sit for as little as 10 to 20 hours at room temperature and what do you get? You will get an alcohol growth in the vial between .05 and .07 for someone that has normal glucose levels.

THE STORAGE PROCESS

One of the first steps that the lab does with your blood once it reaches the lab is to put it in a refrigerator.  However, from the time that your blood is collected to the time that it reaches the lab it will most likely have been stored in a NON refrigerated evidence locker. I have seen some blood stored outside in metal evidence lockers for as long as 6 days before it was even picked up for transport. I have cross examined DOJ blood testers that have agreed that storage in a NON refrigerated evidence locker is NOT ideal.