DUI Defense and DMV Administrative Per Se Hearing Package — California

DUI DEFENSE AND DMV ADMINISTRATIVE PER SE HEARING PACKAGE — CALIFORNIA

TABLE OF CONTENTS

1. Case Intake and Critical Deadlines
2. DMV Administrative Per Se Hearing Request Letter
3. Discovery Demand — Criminal Case
4. Motion to Suppress Evidence (Penal Code § 1538.5)
5. Restricted License / IID Petition
6. Plea Negotiation and Sentencing Matrix Worksheet
7. California Implied Consent Law Summary
8. Practice Notes and Citations

1. CASE INTAKE AND CRITICAL DEADLINES

Client: [________________________________]
DL Number: [________________________________]
Date of Arrest: [__/__/____]
Time of Arrest: [____]
Date Notice of Suspension Served (DS-367): [__/__/____]
APS Hearing Request Deadline (Arrest Date + 10 calendar days): [__/__/____]
Arresting Agency: [________________________________]
Arresting Officer / Badge No.: [________________________________]
Court Case Number: [________________________________]
Court of Jurisdiction: [________________________________]
Charged Sections: ☐ § 23152(a) ☐ § 23152(b) ☐ § 23152(f) ☐ § 23153 ☐ § 23136 (under 21) ☐ Refusal § 23612

2. DMV ADMINISTRATIVE PER SE HEARING REQUEST LETTER

[LAW FIRM LETTERHEAD]

[__/__/____]

VIA FACSIMILE AND CERTIFIED MAIL
California Department of Motor Vehicles
Driver Safety Office — [________________________________]
[OFFICE ADDRESS]
Fax: [________________________________]

Dear Hearing Officer:

Pursuant to California Vehicle Code §§ 13557 and 13558, please accept this letter as a timely written request, served within ten (10) calendar days of service of the Notice of Suspension/Revocation (form DS-367), for an Administrative Per Se hearing on behalf of [CLIENT NAME].

This request is made under the following terms:

1. In-Person Hearing. Mr./Ms. [CLIENT NAME] requests an in-person (not telephonic) hearing at the [LOCATION] Driver Safety Office, with the right to subpoena and cross-examine witnesses pursuant to Cal. Veh. Code § 14104.7 and Gov. Code § 11450.05.

2. Stay of Suspension. Pursuant to Cal. Veh. Code § 13558(e), please issue an Order of Stay continuing the driver's privilege to operate a motor vehicle pending the outcome of the hearing.

3. Discovery Request. The following materials are requested at least ten (10) business days before the hearing pursuant to Gov. Code § 11507.6:

☐ The arresting officer's sworn statement (DS-367) and any supplemental DS-367(M);
☐ All police reports, incident reports, and supplemental narratives;
☐ Computer-aided dispatch (CAD) logs and recordings;
☐ Mobile/in-car video (MVR) recordings and body-worn camera (BWC) footage;
☐ Breath testing instrument records: model, serial number, accuracy checks (15-day and 10-day), calibration logs, and maintenance records under 17 Cal. Code Regs. § 1221.4;
☐ The breath operator's certification, training records, and observation period documentation;
☐ Blood draw chain of custody, phlebotomist certification, and laboratory analytical report with chromatograms;
☐ Field sobriety test (FST) administration records and officer SFST training certifications;
☐ Any preliminary alcohol screening (PAS) device records and admonishment.

4. Subpoena Requests. Please issue subpoenas for the appearance of the arresting officer, the breath/blood test operator, the custodian of records for the testing laboratory, and the records custodian for the testing agency. Subpoena forms (DS-3) will follow.

5. Reservation of Rights. All objections, defenses, and motions are reserved, including but not limited to challenges to the lawfulness of the detention and arrest, the validity of any chemical test, compliance with Title 17 of the California Code of Regulations, and the adequacy of any admonishment under Veh. Code § 23612.

Respectfully submitted,

[ATTORNEY NAME], SBN [________]
[FIRM NAME]
[ADDRESS]
[TELEPHONE] | [EMAIL]

3. DISCOVERY DEMAND — CRIMINAL CASE

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF [COUNTY NAME]

Case No.: [________________________________]

DEFENDANT'S INFORMAL AND FORMAL DEMAND FOR DISCOVERY
(Pen. Code §§ 1054.1, 1054.5; Brady v. Maryland)

TO: The District Attorney of [COUNTY] County, and all interested parties:

Pursuant to Penal Code §§ 1054.1 and 1054.5, Brady v. Maryland, 373 U.S. 83 (1963), Kyles v. Whitley, 514 U.S. 419 (1995), California v. Trombetta, 467 U.S. 479 (1984), and Arizona v. Youngblood, 488 U.S. 51 (1988), Defendant demands disclosure and production of the following:

1. Reports and Statements. All police reports, incident reports, supplemental reports, investigative notes, CAD/dispatch logs, and recorded or unrecorded statements of any witness, including the Defendant.

2. Audio/Video. All in-car (MVR) and body-worn camera (BWC) recordings; all jail booking video; all 911 audio; all interview recordings.

3. Field Sobriety Tests. All FST administration records, including the officer's NHTSA SFST certification, recertification dates, and any deviation from the DWI Detection and Standardized Field Sobriety Test (SFST) Instructor Guide.

4. Preliminary Alcohol Screening (PAS). The make, model, and serial number of the PAS device; calibration and accuracy records; any documentation of the PAS admonishment under Veh. Code § 23612(i).

5. Evidentiary Breath Testing. For any evidentiary breath test:
   - Instrument make, model, and serial number;
   - All accuracy checks within 10 days before and after testing (17 C.C.R. § 1221.4);
   - Calibration, maintenance, and repair logs for the prior 12 months;
   - Operator certification, training, and recertification records;
   - Continuous 15-minute observation log;
   - Raw data, breath-by-breath sequences, and any aborted or invalidated tests;
   - All Title 17 compliance documentation.

6. Blood Testing. Phlebotomist credentials; blood-draw kit lot number; chain of custody from draw to analysis; refrigeration logs; gas chromatograph maintenance and calibration records; chromatograms, area counts, and analyst notes; lab accreditation and proficiency testing records.

7. Officer Records (Brady / Pitchess). All Brady material under Brady v. Maryland concerning the arresting officer's truthfulness, prior misconduct, sustained citizen complaints, or material adverse credibility findings. (A formal Pitchess motion under Evid. Code § 1043 / Pen. Code § 832.7 will follow as appropriate.)

8. Refusal Allegation (if applicable). Verbatim admonishment given; time of each request; the officer's contemporaneous documentation of the alleged refusal; any video documenting verbal exchanges.

9. Expert Disclosures. Pen. Code § 1054.1(f): all names and addresses of experts the prosecution intends to call, together with reports and statements.

10. Exculpatory Material. Any and all evidence favorable to the Defendant on guilt, punishment, or impeachment.

Continuing duty to disclose is asserted. Failure to comply will be the subject of a motion under Pen. Code § 1054.5(b) for sanctions, including exclusion of evidence and/or dismissal.

Date: [__/__/____]

[ATTORNEY NAME], SBN [________]
Attorney for Defendant

4. MOTION TO SUPPRESS EVIDENCE (PENAL CODE § 1538.5)

NOTICE OF MOTION AND MOTION TO SUPPRESS EVIDENCE
(Pen. Code § 1538.5)

TO THE DISTRICT ATTORNEY OF [COUNTY] COUNTY AND TO THE CLERK OF THE ABOVE-ENTITLED COURT:

PLEASE TAKE NOTICE that on [__/__/____] at [____] in Department [____], or as soon thereafter as the matter may be heard, Defendant [NAME] will move the Court for an Order suppressing the following evidence pursuant to the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution; Article I, §§ 13 and 15 of the California Constitution; and Penal Code § 1538.5:

4.1 Items to Be Suppressed

☐ All observations, statements, and physical evidence flowing from the traffic stop on [__/__/____];
☐ All Field Sobriety Test (FST) observations;
☐ The Preliminary Alcohol Screening (PAS) result;
☐ The evidentiary breath/blood test result;
☐ All custodial statements by Defendant;
☐ Any alleged refusal evidence.

4.2 Grounds — Detention and Arrest

4.2.1. No Reasonable Suspicion for the Stop. The officer lacked reasonable, articulable suspicion under Terry v. Ohio, 392 U.S. 1 (1968) and People v. Wells, 38 Cal.4th 1078 (2006). The stated basis for the stop — [DESCRIBE — e.g., weaving within lane, broken tail-light pretext, anonymous tip] — is constitutionally insufficient.

4.2.2. Unlawful Prolongation. Even assuming arguendo that the initial stop was lawful, the officer impermissibly prolonged the detention beyond the scope of the traffic mission in violation of Rodriguez v. United States, 575 U.S. 348 (2015).

4.2.3. No Probable Cause to Arrest. The totality of the circumstances did not support probable cause to arrest under Veh. Code § 23152. FSTs were administered on [DESCRIBE TERRAIN/CONDITIONS] in violation of NHTSA SFST protocol, rendering the results unreliable.

4.3 Grounds — Chemical Test

4.3.1. Title 17 Non-Compliance. The evidentiary breath test failed to comply with 17 C.C.R. §§ 1219–1221.4. Specifically:

☐ No continuous 15-minute observation period;
☐ Accuracy checks outside required tolerance;
☐ Operator lacked current certification;
☐ Instrument out of compliance with calibration schedule;
☐ No two-sample sequence within 0.02 g/210L.

4.3.2. Pirtle / Trombetta. Breath samples were not preserved, depriving Defendant of due-process opportunity to retest. People v. Trombetta (Cal. Sup. Ct.); California v. Trombetta, 467 U.S. 479 (1984).

4.3.3. Blood Draw. Any blood draw violated Missouri v. McNeely, 569 U.S. 141 (2013) and Birchfield v. North Dakota, 579 U.S. 438 (2016) — no warrant, no consent, no exigency.

4.4 Grounds — Miranda / Fifth Amendment

Custodial interrogation occurred without proper Miranda v. Arizona, 384 U.S. 436 (1966), warnings. Statements made after Defendant was effectively in custody under Berkemer v. McCarty, 468 U.S. 420 (1984), must be suppressed.

4.5 Grounds — Refusal Procedure (if applicable)

The Veh. Code § 23612 admonishment was incomplete, was given in a manner the Defendant could not understand, or did not include the mandatory advisements regarding consequences. A defective admonishment is a complete defense to a refusal allegation under both APS and the criminal proceeding.

4.6 Relief Requested

Defendant respectfully requests an Order suppressing all evidence flowing from the unlawful stop, detention, arrest, and chemical testing, and any further relief the Court deems just.

Date: [__/__/____]

[ATTORNEY NAME], SBN [________]
Attorney for Defendant

5. RESTRICTED LICENSE / IID PETITION

APPLICATION FOR RESTRICTED DRIVING PRIVILEGE — POST-DUI

To: California Department of Motor Vehicles
Driver Safety Office — [LOCATION]

Applicant Information:

Applicant represents and certifies the following:

5.1. Enrollment in DUI Program. Applicant is enrolled in a State-licensed DUI program ([3-month / 6-month / 9-month / 18-month / 30-month]) at: [PROGRAM NAME AND ADDRESS]. Enrollment certificate (DL 107) is attached.

5.2. SR-22 Proof of Financial Responsibility. A California Insurance Proof Certificate (SR-22) from [INSURER] policy no. [_______] is on file.

5.3. Reissue Fee. The $125 reissue fee has been paid (receipt attached).

5.4. IID Installation (if § 13352.5). A certified ignition interlock device has been installed on every vehicle Applicant operates by [PROVIDER NAME], installation certificate (DL 920) attached.

5.5. No Disqualifying Factors. Applicant has not been convicted of DUI causing injury under Veh. Code § 23153, has no prior DUI within ten (10) years that would disqualify, and is not under any other suspension or revocation.

5.6. Hardship Statement. A restricted license is necessary to maintain employment, attend the DUI program, obtain medical care, and support the Applicant's family, as set forth in the attached declaration.

Date: [__/__/____]

Applicant Signature: [________________________________]

6. PLEA NEGOTIATION AND SENTENCING MATRIX WORKSHEET

6.1 First Offense — Veh. Code § 23152 (Standard Adult)

6.2 Second Offense (Within 10 Years)

6.3 Third Offense (Within 10 Years)

6.4 DUI Causing Injury — § 23153

6.5 Common Plea Alternatives

6.6 Negotiation Checklist

☐ Was the stop supported by RAS? Suppression viability?
☐ Title 17 compliance for breath test?
☐ Rising-BAC defense viable (drinking shortly before driving)?
☐ Medical conditions (GERD, ketogenic diet, mouth alcohol)?
☐ Trombetta motion to dismiss for failure to preserve breath sample?
☐ Pitchess findings on arresting officer?
☐ Prior offenses within 10 years (priorability under § 23540)?
☐ Immigration consequences? (DUI is generally not a CIMT, but DUI w/ drugs or injury may be.)
☐ Professional licensing exposure (medical, legal, commercial CDL)?
☐ Restitution amount and victim notification?

7. CALIFORNIA IMPLIED CONSENT LAW SUMMARY

7.1 Statutory Framework

Under Cal. Veh. Code § 23612, any person who drives a motor vehicle in California is deemed to have given consent to chemical testing of blood or breath for alcohol, or blood (or urine if blood unavailable) for drugs, when lawfully arrested for a violation of §§ 23140, 23152, or 23153.

7.2 Officer's Duties

The officer must:

7.3 Consequences of Refusal

Additionally: mandatory imprisonment enhancement if convicted of underlying DUI; refusal is admissible at trial as consciousness of guilt.

7.4 Exemptions

☐ Hemophilia (no blood test) — § 23612(b)
☐ Heart condition with anticoagulant medication (no blood test) — § 23612(c)
☐ Unconscious — deemed not to have withdrawn consent

7.5 Critical Cases

• Birchfield v. North Dakota, 579 U.S. 438 (2016) — Warrantless blood draw post-DUI arrest violates Fourth Amendment; breath OK; refusal criminal penalty for blood refusal unconstitutional.
• Missouri v. McNeely, 569 U.S. 141 (2013) — Natural metabolism of alcohol is not a per se exigency.
• Mitchell v. Wisconsin, 588 U.S. ___ (2019) — Unconscious-driver exigency in narrow circumstances.

8. PRACTICE NOTES AND CITATIONS

8.1 Two-Track Defense

The criminal court action under Veh. Code § 23152 / § 23153 and the DMV APS action under § 13353 / § 13353.2 are independent. A successful APS hearing does not bar the criminal case; a criminal acquittal can, under some circumstances, support a vacation of the APS suspension via § 13353.2(e). Defense counsel must calendar both tracks.

8.2 APS Hearing — Issues at Hearing

For a § 13353.2 (.08%) hearing, the DMV must prove by a preponderance of the evidence:

1. The officer had reasonable cause to believe Driver was operating in violation of § 23152 or § 23153;
2. Driver was lawfully arrested;
3. Driver was driving with 0.08% or more BAC.

For a § 13353 (refusal) hearing, the DMV must additionally prove a complete and proper admonishment and an actual, willful refusal.

8.3 Trombetta Motion

When the agency has destroyed or failed to preserve a breath sample, consider a Trombetta motion to dismiss on due-process grounds. Argue that the evidence had apparent exculpatory value and that comparable evidence cannot reasonably be obtained.

8.4 Pitchess Motion (Evid. Code § 1043)

Consider a Pitchess motion to discover prior complaints of dishonesty, fabrication, racial profiling, or excessive force in the arresting officer's personnel file when those issues are material to the defense.

8.5 Commercial Drivers / Professional Licensees

☐ CDL holders: § 23152(d) — 0.04% BAC threshold; conviction = 1-year disqualification (lifetime on second).
☐ Medical Board, State Bar, nursing, pilot — separate reporting obligations under Bus. & Prof. Code; consult professional-licensing counsel.

8.6 Sources and References

• California DMV Driving Under the Influence guidance: https://www.dmv.ca.gov/portal/driver-education-and-safety/dmv-safety-guidelines-actions/driving-under-the-influence/
• California Vehicle Code (Cal. Leg. Info): https://leginfo.legislature.ca.gov/
• 17 Cal. Code Regs. §§ 1219–1221.4 (Breath Testing Standards)
• NHTSA DWI Detection and Standardized Field Sobriety Test Instructor Guide (current edition)

END OF TEMPLATE