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ADVANCED: DMV TO WRIT GRANTED

ADVANCED: DMV TO WRIT GRANTED. Prepared by : Chad R. Maddox (714) 695-1500 chad@gototrial.com www.gototrial.com. Most likely convicted. 10 % less likely convicted. 7% less likely convicted. http://apps.dmv.ca.gov/about/profile/rd/r_d_report/Section_5/S5-236.pdf.

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ADVANCED: DMV TO WRIT GRANTED

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  1. ADVANCED:DMV TO WRIT GRANTED Prepared by: Chad R. Maddox (714) 695-1500 chad@gototrial.com www.gototrial.com

  2. Most likely convicted 10 % less likely convicted 7% less likely convicted

  3. http://apps.dmv.ca.gov/about/profile/rd/r_d_report/Section_5/S5-236.pdfhttp://apps.dmv.ca.gov/about/profile/rd/r_d_report/Section_5/S5-236.pdf

  4. Driver Safety Manager, San Diego 2008

  5. California DUI Lawyers Association California Drunk Driving Law

  6. Rules of Evidence • GC 11513 – Technical rules of evidence don’t apply, unless the code specifically says it does… • The hearing need not be conducted according to technical rules relating to evidence and witnesses, except as hereinafter provided. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of the evidence over objection in civil actions. • Hearsay • Foundation • Authentication • Relevance • Jurisdiction

  7. Substantive Law • Rebuttable presumption • Experts… How are they evaluated BY THE COURT?

  8. Writ Basics – Types, jurisdiction, timing, ex partes 3 Writs I consistently win Recurring Questions and Circumstances at DMV

  9. CCP 1094.5 and 1085 1094.5 – Writ following a hearing Example – Typical DMV Hearing 1085 – Writ where no hearing allowed Example – Request to remove Out of State Prior

  10. ATTORNEY FEES GENERAL RULE 1094.5 – GC800 – Arbitrary and Capricious 1085 – No.

  11. ATTORNEY FEES (1085) VC§12809 – when DMV can deny issuing a license… CCR T13 §15.05 – Requires a hearing if they deny issuing a license… IF DMV REFUSES TO GRANT HEARING – Forrest v. Trs. of Cal. State Univ. & Colleges, 160 Cal. App. 3d 357 (1984) [Attorney fees under GC800 appropriate where hearing required but denied arbitrarily]

  12. Jurisdiction - Petition for Writ of Mandate

  13. Jurisdiction - Petition for Writ of Mandate Where the driver lives

  14. TIMING… (Typical 1094.5 with hearing) • 9 Days – the Suspension Begins • 10 Days – to Request the Administrative Record • 15 days – to Seek Departmental Review • 34 days – to File Petition for Writ of Mandate • 94 days – to File Petition for Writ of Mandate • Conditional time – to File for Writ if: • Asked for Administrative Record within 10 days of Decision, you have 30 days from date DMV serves it

  15. EX PARTE • Traditionally, used to “maintain the status quo”…

  16. EX PARTE • Irreparable Harm – Job, school Dixon v. Love, 431 U.S. 105 (1977) Bell v. Burson, 402 U.S. 535 (1971) • Likelihood to Prevail – your best arguments without the use of the Admin Record

  17. EX PARTE • 1094.5(g) – Not if against the public interest • PRIORS – KILLER • POINTS – Not usually significant • IID – Recently effective • DUI SCHOOL – Usually considered

  18. 3 Writs I Consistently Win Out of State Priors (90%) Risings (70%) Refusals (50%)

  19. Out of State Priors • Operate / Control vs. “drive” • Assume least offensive conduct • Court may only use… “official records of conviction”…. • NOT POLICE REPORTS

  20. DMV DOESN’T REMOVE IT… • RE-CODE from DUI to DWI • Or remove it, but it shows up again after the sister-state transfers data again… (weekly?) • You will need to do an OSC re contempt… • You get SANCTION$

  21. RISINGS 4 THINGS TO COVER AT DMV 1. QUALIFY EXPERT 2. OPINION 3. FACTS CONSIDERED VS. RELIED ON 4. SCIENCE /MATERIALS / EXPERIENCE

  22. KEY WORDS 1. Assumptions 2. Relied upon by other experts 3. Speculative 4. Material 5. Reasons 6. Bald conclusions

  23. REFUSALS 1 OFFER + 1 REJECTION = 1 REFUSAL IN CONTEXT… 1 OFFER OF ALL TESTS + 1 REJECTION = 1 REFUSAL

  24. LEGAL TEST FOR REFUSAL FAIR MEANING TO DRIVER’S WORDS AND CONDUCT… CONSIDER CONTEXT… EXAMPLE… PAS TEST FOLLOWED BY REFUSAL…

  25. You are required by state law to submit to a PAS (DUI Probation) or other chemical test

  26. REPEAT QUESTIONS ABOUT DMV

  27. * Downer v Zowlin – 6 days NOT “near the time”* Glatman v. Valverde – when recorded is the key

  28. Brenner v. DMV

  29. Under 21 – PAS test – Adams or T17 • Coniglio – T17 doesn’t apply to PAS • Bury – T17 does apply to PAS • Molenda – EC664 + T17 = • PAS number admissible DMV still operates as though it needs Adams… For you as well

  30. Conclusions in the PC Statement • VC13380 - ALL relevant facts in the DS367 • MacDonald - Technical omissions OK • DS367 - “OBS, S/V DRIVING W/B 101 DESOTO TO TOPANGA WEAVING SIDE TO SIDE IN W-1 LANE—STOP MADE.” • Narrative -  “driving in the No. 5 lane on a freeway, encroach two feet into the No. 4 lane, and then slowly drift five feet onto the shoulder.” 

  31. “WET” vs. “Helmandollar” WET – Dismiss Count 1 Dismiss Count 2 – DS702 (new APS hearing form) Plead to Count 3 – VC23103 per 23103.5 Helmandollar- Dismiss Count 1 Court trial on Count 2 – NG (Overturns APS suspension) Plead to Count 3 – VC23103 per 23103.5

  32. DS 702

  33. 1538 win… then what? Dismissal – - - No effect on DMV (Gikas) but new APS hearing (DS 702) Not Guilty - - - Overturns APS suspension

  34. FINAL 2 TIPS • DON’T REPEAT DMV ARGUMENTS IN YOUR REPLY… • EXAMPLE – • DRIVER - BREATH HIGH DURING ABSORPTION • DMV – THAT’S PARTITION RATIO • DRIVER – PARTITION RATIO IS A RED HERRING • EXPERT RELIED ON 1000 TESTS, • THE MACHINE’S LIMITATIONS, • TOXICOLOGY, BIOLOGY…

  35. TABLE OF CONTENTS OUTLINE YOUR ENTIRE ARGUMENT I. WRIT IS PROPER TOOL II. 3-HOUR PRESUMPTION IS REBUTTABLE III. EXPERT REBUTTED PRESUMPTION IV. WEIGHT OF EVIDENCE SUPPORTS FINDINGTHAT DRIVER WAS UNDER .08% V. CONCLUSION

  36. ADVANCED:DMV TO WRIT GRANTED Prepared by: Chad R. Maddox (714) 695-1500 chad@gototrial.com www.gototrial.com

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