Successful California Admin Per Se Drivers License Suspension Defense Presentation for The State Bar of California 2002 Convention By DUI Attorney Randy Moore
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presented by San Jose DUI Attorney Randy Moore lawyermoore@msn.com. (408) 298 2000 http://www.moorelawfirm@moorelawfirm.com
Admin Per Se Winners
7 Killer Defenses
against Drivers License Suspension
Successful California Admin Per Se Drivers License Suspension Defense
by San Jose DUI Attorney Randy Moore (408)298 2000 lawyermoore@msn.com
1. Challenge for Cause of hearing officer - Government Code11512
2. Warrantless Arrest not presumed to be lawful under Evidence Code 664
3. Hearsay, alone, which would not be admissible over objection in a civil action cannot be the sole basis on which a finding is made: Government Code 11513(c)
4. Proper use of Expert witnesses -admissibility of matters on which reliance was placed: Evidence Code 801(b)
5.Time Issues: the 15 minute observation, the 3 hour presumption of 23152, time of driving, time of test, time of arrest, date of Blood analysis
6.Breach of Official Duty: the Key to "burden shifting" i.e. rebut the presumption and shift the burden of proof back on to the DMV. The "Davenport attack".
7 Admissibility issues: Foundation, Competence, Hearsay, Personal knowledge, Authentication. Sworn statements DS367 vs. Unsworn statements,CHP 202, police reports, blood test reports, breath test cards
EXAMPLES of successful defenses to Admin suspensions ***
Attorney standard of care (aka Malpractice): Jackson v.DMV
Conducting The Hearing: procedure, points&authorities, "in-person"vs. telephone, Client as witness?, Cop as witness?, Discovery, continuances, the Pre-hearing conference, Opening statements, Closing statements,
Demonstrative Evidence
Administrative Review /Writs /Legal Liaison Unit
Admin Per Se Points&Authorities
Mr. Moore will provide copies of the following points and authorities, declarations, and briefs to any attendees, upon request, at this Continuing Legal Education seminar. There is no charge.
Points&Authorities in Support of licensee's Challenge for Cause of Hearing Officer assigned to the APS hearing
Points&Authorities in support of licensee's objections to evidence
I. Burden of Proof
II.Scientific and evidentiary foundation objections
III. Objections to implied correlation between alcohol concentration level at the time of test and alcohol concentration level at the time of driving.
Points&Authorities in support of licensee's objection to introduction of blood test results based upon lack of authentication.
Points&Authorities in support of licensee's objection to unsworn statement of Deputy
Points&Authorities establishing Officer did not state facts sufficient to sustain a finding of reasonable cause to believe licensee was under the influence of alcohol.( i.e. checkboxes alone are insufficient. Direct references to the DMV Drivers Safety Manual.)
Points&Authorities establishing that Officer did not state facts sufficient to establish sufficient probable cause to arrest thereby failing to support a finding of lawful arrest.
Sample Expert Witness declarations on blood, breath, and refusal issues.
Randy Moore may be contacted at (408) 298 2000, E-mail: lawyermoore@msn.com and E-mail at mjlawrandymoore@aol.com Web site: www.moorelawfirm@moorelawfirm.com. Snail Mail: 332 N. Second St. San Jose Ca 95112