Wednesday, January 2, 2008
Standard of proof in DMV Hearings
The standard of proof at DMV hearings is the preponderance of the evidence standard. This level of proof is required in most civil cases, which DMV hearings can be likened to, as opposed to the criminal court trial where the burden of proof is beyond a reasonable doubt. The preponderance of the evidence standard merely requires that there be more evidence in support of a defendant's guilt than not. For example, in bare numbers alone, this could mean that 51 percent of the evidence supports a defendant's guilt, while 49 percent of the evidence supports his innocence. Thus, at a DMV hearing, the DMV will win by a preponderance of the evidence if their evidence only tips the scales in their favor by the smallest amount.
The burden of proof at a DMV hearing is placed on the DMV by state law. The DMV must show that the resulting suspension of the defendant's license is justified by the law and the facts of the case. The DMV Administrative Per Se hearing is concerned with only three issues, which they must find to be true by a preponderance of the evidence:
1. Did the officer have reasonable cause to believe the individual was driving a vehicle in violation of California Vehicle Code Sections 23152 or 23153?
2. Was the defendant lawfully arrested?
3. Was the defendant driving a vehicle with a BAC of .08 percent or over?
The DMV relies on the paperwork submitted by the police officer who arrested the defendant. It is this paperwork which supports the 3 findings cited above.
Another issue that comes up is if whether there has been a refusal by the defendant in taking a chemical test when requested to do so by police officers. The police officers make a report, signed under penalty of perjury, detailing the refusal and the probable cause to stop, detain, and request the chemical test. The DMV utilizes the report to prove that there has been a refusal, thus justifying a one-year license suspension for a first-time offender.
The DMV normally relies on the paperwork alone. Live witnesses are not usually called in to support the paperwork. One of the key ways of winning the DMV hearing is this: the paperwork is often defective. If the defendant shows that the paperwork is defective, then the DMV cannot rely on it, and there goes the scales of proof, right into the defendant's favor. In many cases, there are legal questions concerning the procedure of the arrest that can be challenged, to which the DMV must prove was legally carried out in order to suspend a driver's license. Finally, if the accuracy of the chemical test is successfully brought into question, then there is less of a likelihood of the DMV hearing officer making a finding of the defendant being guilty of having a .08 percent or above blood alcohol content at the time of driving.
DUI and Motorcycles
DUI and Motorcycles
Alcohol intoxication is a leading factor in motorcycle accidents and fatalities. Law enforcement officers have been trained to identify driving patterns that indicate a probability that a motorcyclist is driving while intoxicated. The driving patterns that police typically look for have been outlined by the National Highway Traffic and Safety Administration (NHTSA). NHTSA has delineated a number of "cues" that police officers can look for in detecting intoxicated motorcyclists. The list presented below represents, in descending order, the visual cues giving rise to the probability that the motorcyclist observed is driving while intoxicated. Often, police officers will observe several cues in conjunction, which increases the probability that the driver is intoxicated, that is, driving with a blood alcohol content (BAC), over the legal limit. Studies have indicated that cues by themselves or in conjunction with other cues, give rise to a statistical probability of intoxication.
The following cues have shown a 50 percent or greater probability in predicting impaired motorcycle operation. However, it is also 50 percent as likely that these cues do not reflect intoxication.
Drifting During Turn or Curve
Drifting during a turn or curve is the most common cause of single vehicle, motorcycle crashes. This occurs when the motorcycle and rider continues in a straight line instead of turning with the road, ultimately resulting in hitting a stationary object.
Another way this cue represents itself is where the motorcycle appears to drift to the outside of the lane, or into another lane, through the curve or while turning a corner.
However, drifting in a lane is not uncommon where a person is distracted or is unfamiliar with the landscape.
Trouble with Dismount
Law enforcement officers look at the dismount as a helpful field sobriety test, as it is reflective of coordination and judgment. First, the motorcyclist must decide upon a safe place to stop the bike. Then the motorcyclist must turn off the engine, locate and deploy the kickstand, then balance on one foot while swinging the other foot over the seat to dismount. Officers look for any problems in the preceding sequence as evidence of alcohol impairment.
However, trouble with dismount is not necessarily an indication of intoxication. Where the officer pulls over the motorcyclist has a lot to do with the location of dismount. Plus, most people are rather nervous when pulled over, which is distracting. These factors have a lot to do with a dismount that takes place in front of an officer while he is waiting to write you a ticket.
Trouble with Balance at Stop
There are two general methods of balancing at a complete stop. One, where the rider places one foot on the ground to keep the bike upright, while leaving the other foot on the peg nearest the gear shift lever. Two, where the rider places both feet on the ground for stability. Law enforcement officers look for a shifting from side to side, in a rocking motion, in an effort to maintain balance at a stop.
However, there may be several reasons a rider cannot maintain balance, for example, if the road is not even, the bike is unfamiliar, or the rider is of small stature
Turning Problems
1) Unsteady During Turn or Curve: Law enforcement officers look for a motorcycles wheels to wobble when making a turn.
However, when the motorcycle is undergoing a turn or curve, it must slow down, which makes it less stable in an upright position. At higher speeds the gyroscopic effects of a motorcycle's wheels tend to keep the motorcycle "on track" so long as the speed is maintained. At slower speeds, the motorcycle is unsteady, so there is a higher probability of wobbling while turning.
2) Late Breaking During a Turn: Law enforcement officers look for the application of break lights during the turn as opposed to prior to the turn, as indicating impairment due to intoxication. The rationale here is that a motorcyclist normally breaks prior to entering a turn or curve, so the motorcycle can accelerate through the maneuver for maximum control.
However, there are many reasons a rider would break during a turn as opposed to prior. For example, the rider may just drive that way, or is unfamiliar with the streets and the street he needs to turn on comes up faster than expected, or any number of reasons, which are not alcohol-related.
3) Improper Lean During Turn: Law enforcement officers look for the rider to be in an upright position during a turn, instead of leaning into the curve.
However, NHTSA indicates that this cue is observable by a "trained" observer, meaning it is not apparent otherwise. Also, where the turn is made safely, there is no indication of impairment due to intoxication.
4) Erratic Movements During Turn: Law enforcement officers look for any sudden correction of a motorcycle during a turn or curve.
However, there are many other factors which would cause a sudden movement during a turn. For example, the condition of the road may necessitate such a maneuver.
Inattentive to Surroundings
Law enforcement officers look for such things as:
1) Failing to notice the light has changed. However, people do this everyday. Getting lost in thought may cause you to not notice that the light has changed: This is not an indication of intoxication.
2) Failing to scan the area around the bike in traffic. However, this is not a requirement required by the DMV and is not necessary where the driver is experienced and the traffic is light. The motorcyclist decides based on road factors, traffic flow, and surroundings how vigilant to be; it is subjective and not an indication of intoxication.
3) Failing to respond to officer's emergency lights or hand signals. However, this cue can be negated by many reasonable factors, like the motorcyclist concentrating on the road, waiting to pull over on a safer stretch of road, or simply not observing the hand signals.
Inappropriate or Unusual Behavior
Officers are looking for any sorts of behavior which are "unusual" or "inappropriate."
However, this is a matter of subjection and is not necessarily an indicator of intoxication, but matters of circumstance.
Weaving
Weaving includes weaving within a lane and weaving across lane lines.
However, weaving may occur to avoid road hazards.
The following cues have been shown to have a 30-50% probability of indicating intoxication. However, at the same time, they are 50-70% times as likely of not being an indicator of intoxication.
Erratic Movements While Going Straight
Law enforcement officers look for any sudden corrections while attempting to ride in a straight line.
However, the NHTSA studied reflected a 51-70% probability that there is no impairment reflected in this cue.
Operating without Lights at Night
Because of the danger involved in motorcycles driving without lights at night, the NHTSA studies indicated that there is a good chance that the operator is intoxicated.
However, there is a higher likelihood that this cue is not due to intoxication, but rather just an oversight of the rider.
Recklessness
Officers look for riding too fast as an indicator of impairment.
However, motorcyclists tend to ride faster than autos, so speeding is not necessarily an indicator of impairment.
Following too Closely
Officers look for a rider following at an unsafe following distance.
However, the distance between the motorcycle and other cars is not totally within the motorcyclist's control. Cars slowing would naturally decrease the following distance.
Running Stop Light or Sign
Officers look for the motorcycle failing to stop at a light or sign.
However, cars and motorcycle riders run lights and signs all the time, for a variety of reasons which are not indicators of intoxication.
Evasion
This cue occurs when an officer attempts to pull the motorcycle over and the motorcycle rider attempts to flee the officer instead.
This is a common occurrence which has nothing to do with impairment, 50-70% of the time.
Wrong Way
This cue occurs when the motorcycle is riding into opposing traffic, such as going the wrong way on a one-way street or crossing a center divider line to ride into opposing traffic.
However, 50-70% of the time this cue is not an indicator of impairment. Going the wrong way on a one-way street occurs with drivers everyday and is usually a matter of mistake. Crossing the divider line also occurs as a sudden movement to avoid another car going into the lane which occurs frequently to motorcycles because other driver's do not pay attention to the presence of motorcycles.
Special Considerations in Drug Cases
Special Considerations in Drug Cases
Diversion from criminal drug charges entails navigating the intricacies of Prop. 36 or deferred entry of judgment (DEJ), both of which divert from criminal prosecution only people charged with simple possession or being under the influence. Both programs require the defendant to attend and complete a certified or approved drug rehabilitation program. When the treatment is complete, the defendant's conviction is erased from the record. The goal of both programs is rehabilitation rather than punishment, but there the similarities end.
DEJ Diversion
The Deferred Entry of Judgment (DEJ) Program is aimed towards those individuals accused of use/possession of illegal substances who have waived his/her rights to a speedy trial and entered a plea of guilty. The judgment is put on hold upon successful completion of the DEJ requirements. The DEJ program is designed to assist individuals recognize their chemical and/or other drug dependency and assist them in their recovery. If they successfully complete all required programs, they can have their case dismissed in a process which is known as "Deferred Entry of Judgment," commonly referred to as DEJ or drug diversion.
This kind of "settlement" can be possible in certain felony cases involving non-violent drug offenses. Deferred entry of judgment (DEJ) diverts people charged with either simple possession or being under the influence from criminal prosecution. Individuals who have been charged with first-time drug offenses, as well as certain defendants who suffer from the disease of drug addiction may be eligible to attend classes or other rehabilitation programs.
A defendant is not eligible for DEJ if he or she has ever been convicted of any prior drug offense, even a crime such as possession of less than an ounce of marijuana. Defendants can join DEJ only if they plead guilty. A person can participate in DEJ regardless of whether he or she is charged and convicted of an additional crime at the same time, unlike Prop. 36 sentencing.
Prop. 36
Under Prop. 36, defendants can have drug convictions on their records and still be eligible for treatment. Defendants are eligible for Prop. 36 treatment whether they plead guilty or are convicted after trial. As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program. The court may also impose as a condition of probation participation in vocational training, family counseling, literacy training and/or community service. A court may not impose incarceration as an additional condition of probation. Aside from the limitations imposed in this subdivision, the trial court is not otherwise limited in the type of probation conditions it may impose.
The terms "drug treatment program" or "drug treatment" mean a licensed and/or certified community drug treatment program which may include one or more of the following: outpatient treatment, half-way house treatment, narcotic replacement therapy, drug education or prevention courses and/or limited inpatient or residential drug treatment as needed to address special detoxification or relapse situations or severe dependence. The terms "drug treatment program" or "drug treatment" shall not include drug treatment programs offered in a prison or jail facility.
Although the overall eligibility criteria for Prop. 36 is looser than DEJ, Prop. 36 has some restrictions not found in DEJ. For example, people are ineligible for Prop. 36 when, in addition to the current drug offense, they are convicted in the same proceeding of a misdemeanor not related to the use of drugs or any non-qualifying drug felony.
Proposition 36, generally favors long-term drug treatment as an alternative to incarceration. While DEJ is available only upon a plea of "guilty," Prop. 36 sentencing is available upon conviction -- whether a defendant pleaded guilty or was found guilty after a trial.
Drug Court
A Drug Court is a full or part-time court that has been especially designed and staffed to supervise the nonviolent drug offender. It is a court-monitored program of drug treatment and rehabilitation services. Treatment drug court combines individual and/or group counseling, frequent judicial supervision, urine monitoring for drug use and graduated sanctions.
Drug Courts offer the participant a clear choice: participation in treatment instead of going to jail. In exchange for successful completion of the treatment program, the Court may eventually dismiss the original charge, early terminate probation or reduce a felony to a misdemeanor charge, if applicable.
These courts combine the close supervision of the judicial process with resources available through alcohol and drug treatment services. The two goals of these programs are to reduce recidivism of drug-related offenses and to create options within the criminal justice system that tailor effective and appropriate responses for offenders with drug problems.
Once enrolled in drug court participants are assessed by drug court staff (certified drug and alcohol abuse specialists) and referred to various community-based treatment providers based on individual needs. In addition to counseling, 12-step, or other self-help meetings, they are also required to submit to urine tests for alcohol and street drugs and to attend drug court hearings. After graduation, the court deletes the fine and works with participants to deal with mandatory minimum sentences. Typically, the court will allow work release, electronic monitoring, or any other acceptable alternative to jail time.
Penal Code 2900.5: Rehab Facilities and Sober Living
Rehab Facilities
There are many different types of rehab available, for both men and women, separately or together. Most rehabs are private and can be very expensive. Sometimes there are waiting lists for an available bed. The length of treatment varies, but the average time is 30 days. Treatment may include behavior modification and/or medication. Three commonly used behavioral treatments for alcohol abuse and alcoholism—motivation enhancement therapy, cognitive-behavioral therapy, and 12-step facilitation therapy—significantly reduced drinking in the year following treatment. Medication such as naltrexone (ReVia™), an anti-craving medication, has been shown to be effective, especially when combined with behavior therapy.
Alcohol and drug rehabs can be used to replace the alcohol education programs that are instituted as part of the DUI conviction. California Vehicle Code section 23598 states that in lieu of an alcohol or drug education program, the court may impose a live-in alcohol treatment term of probation instead. The court will impose that the DUI offender complete such a program so long as the person consents and has been accepted into that program. The type of proof that is required is a certification, made under penalty of perjury, by the director of the program. The time spent in rehabilitation is counted against the time that would otherwise have been spent incarcerated in a county jail. This is referred to as good time custody credits.
Sober Living
Sober living environments are a way for the DUI offender to avoid being incarcerated. Where a person has had multiple DUIs, or has a drug or alcohol problem that has not responded to past attempts at treatment, then sober living may be the best rehabilitative means of any of the other alternative sentencing options. The basic structure of a sober living environment involves the housing of only sober people, for both men and women. All residents are required to participate in planned daily activities, such as group meetings and 12-step programs. Each resident is required to contribute to the running and functioning of the household by performing a household chore.
Where a DUI offender is facing mandatory minimum time in the county jail, sober living environments provide an excellent alternative sentence to fulfilling the county jail time hours in the sober living environment. The hours spent in the sober living environment qualifies for the mandatory time in jail. Where a term of imprisonment is imposed by the court, the hours and days spent in the sober living facility will count against the mandatory imprisonment requirement. It is the duty of the court imposing the sentence to determine the date or dates of any admission to, and release from, custody prior to sentencing and the total number of days to be credited.
California Penal Code section 2009 defines the terms of sober living as a sentencing alternative to incarceration. The term of stay in the sober living facility may be credited to any base fines or restitution fines at the rate of not less than $30 per day, or more, in the discretion of the court imposing the sentence. Fines are often part of a sentencing scheme where the DUI offender is ordered to a jail stay or released on probation, yet is obligated to pay fines and do community service. If the total number of days in custody exceeds the number of days of the term of imprisonment, the entire term of imprisonment shall be deemed to have been served. In any case where the court has imposed both a jail term of imprisonment and a fine, any days to be credited to the defendant shall first be applied to the term of imprisonment imposed, and thereafter the remaining days, if any, shall be applied to the fine on a proportional basis, including, but not limited to, base fines and restitution fines.