When a driver is arrested on suspicion of driving under the influence, the officer making the arrest will seize the defendant’s driver’s license and will inform the driver that his or her driving privileges will be suspended 30 days later. The driver has ten days to request an administrative hearing with the DMV to challenge the suspension. If this request is not filed, the suspension will automatically go into effect.
When conducting the DMV hearing, expert testimony may be presented. The administrative per se (“APS”) hearing is conducted by a hearing officer from the DMV who is neither a judge nor a lawyer with a legal background. The hearing officer is responsible for introducing the evidence in support of the suspension and ultimately will decide whether or not the suspension is justified.
The defense is permitted to call witnesses and present evidence of its own during the APS hearing, which may be conducted in person at a Drivers Safety Branch Office of the DMV or over the telephone. In addition, the hearing officer may call witnesses of its own. The witnesses called may be percipient witnesses who actually witnessed the incident or expert witnesses used to testify regarding their area of expertise.
The DMV may call expert witnesses in certain situations. When dealing with a potential suspension, the DMV will presume that any test conducted within three hours of driving can be used to show the defendant’s BAC at the time of driving. This presumption can be rebutted by the defense. There may be situations where testing occurred after three hours had passed. In these situations, the hearing officer may call an expert from the Los Angeles County Crime Lab to testify regarding how retrograde extrapolation works and how it can be used to show the driver’s BAC at the time of driving. Often, these experts work closely with law enforcement and tend to present opinions that are not favorable to the driver.
The defense is also entitled to present expert witnesses. In many cases, presenting expert testimony can make the hearing officer question whether a suspension is appropriate. Many experts formerly worked with law enforcement agencies or for county crime labs and are extremely knowledgeable about the issues surrounding DUI testing.
When the driver has a BAC that is close to 0.08 percent, it may be advisable to have an expert testify at the APS hearing. The expert can testify regarding margins of error on testing devices and can examine calibration and maintenance records to see if a breath testing device was functioning properly when the driver tested. In addition, the expert can testify regarding a driver’s rising blood alcohol level. When a person consumes alcohol, there will be a period of absorption after drinking during which the driver’s blood alcohol concentration will rise. If the driver tests during the absorption stage, his or her BAC at the time of testing will be higher than at the time of driving. An expert may be able to show how a driver’s BAC was below 0.08 at the time of driving but tested higher due to a rising blood alcohol.
If you have been arrested for DUI and are concerned about a possible driver’s license suspension, it is crucial that you speak with a Los Angeles DUI Attorney as soon as possible. As a former Deputy District Attorney with over 14 years of prosecutorial experience, Lawyer Michael Kraut works with the top experts in the field in order to make sure his clients receive the best defense possible in court and before the DMV.
For more information about Los Angeles DUI expert witnesses and the administrative hearing, and to schedule your free consultation, contact Michael Kraut at the Kraut Law Group Criminal & DUI Lawyers, Inc. located at 6255 Sunset Boulevard, Suite 1520, Los Angeles, CA 90028. Mr. Kraut can be reached 24/7 at (323) 464-6453.