Patrick J. Silva
Silva & Silva
Attorneys at Law
* 17 Years of Top Level DUI Experience!
* I Teach Other Lawyers DUI Defense!
* Well Known & Respected in the Courts!
EXCESSIVE BLOOD ALCOHOL HEARING (.08)
There are 3 issues that must be met when the DMV is trying to take away your license.
Did the officer have reasonable suspicion to believe you were driving in violation of cvc 23152 or cvc 23153. This requires that the cop had reasonable suspicion to believe you were a) driving the vehicle and b) you were driving while over the limit. Many times the problem with the DMV's case will be that they use hearsay to show element (a) and the issue of whether or not you were driving can be shown under element (b).
Were you lawfuly arrested? This is required under cvc 23612(a) and Mercer v. DMV (1991) 53 Cal.3d 753. There are 2 elements to a lawful arrest; (a) was there reasonable suspicion for the stop (b) was there probable cause for the arrest. Whether or not the officer had reasonable suspicion for the stop will rest on the abundant consitutional case that support and define the 4th Amendment to the United States Constitution which is the guardian to our free liberties as an American. The officer must also establish that you were under the influence of alcohol prior to the arrest.
Element (a). The officer must observe a violation of the law. His observation will be tested objectively against the reasonable officer standard. This is the usually element where the officer's fail to follow the U.S. Constitution. When we see a violation of the 4th Amendment we make a challenge under Penal Code 1538.5. If the motion is granted by the court then an imaginary line in time is drawn and everything the officer observed or collected cannot come into evidence. If there is no evidence then there is no case.
Were you driving a motor vehicle while your blood alcohol level was over a .08%
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