As if it wasn’t easy enough for the DMV to suspend a driver’s license following a California DUI arrest. Recall my numerous posting on the uphill and one-sided process that is the DMV’s administrative per se hearing. Now the DMV can consider circumstantial evidence such as an officer’s observations in determining that a person had a blood alcohol content of 0.08 percent or more.
Ashley Jourdan Coffey was arrested on November 13th, 2011 after an officer spotted her swerving on the Costa Mesa (55) freeway. The officer determined that Coffey was intoxicated based on her red eyes, the smell of alcohol and her failure of field sobriety tests.
Coffey claimed that, although she was out at the bar because she had just turned 21, she had not consumed any alcohol.
After having trouble completing several breathalyzers, Coffey eventually took a blood test about an hour after she was pulled over. That test determined that her blood alcohol content was 0.08 percent. Another blood test done three minutes later showed that her blood alcohol content had risen to 0.09 percent. Her blood was again tested at a later time and determined to have a 0.95 percent blood alcohol content.
Coffey accepted a plea deal in her court case admitting to misdemeanor reckless driving. However, because the chemical test showed that Coffey had a blood alcohol content of 0.08 or above, Coffey faced a suspension of her license through the DMV.
At the DMV admin per se hearing, Coffey hired an expert to testify that Coffey’s blood alcohol content was rising at the time of her DUI arrest. The expert testified that since her blood alcohol content was 0.08 percent about an hour after the arrest, it must have been below the legal limit at the time she was driving.
Notwithstanding the expert testimony, the DMV hearing officer ruled against Coffey. The hearing officer rejected the expert testimony claiming that it was inconsistent with the officer’s testimony that indicated Coffey was above a 0.08 percent blood alcohol content.
So let’s make this perfectly clear. We have a hearing officer, who is not a lawyer or a judge or a scientist, disregarding an expert’s testimony which based on scientific fact. In fact, the DMV hearing officer doesn’t even need to have a bachelor’s degree, yet they are entrusted with determining the facts which they are the proponents of.
The California Supreme Court ruled that the circumstantial evidence that the officer provided was relevant to determining whether the Coffey was at a 0.08 percent blood alcohol content or above. It, however, cautioned against widely using the evidence to discredit expert testimony.
“This is basically the first case to say, ‘Yes, hearing officer, you can consider this evidence, but be careful not to go too far.’ It has to be reasonable, you can’t just exclude expert testimony,” said Coffey’s DUI defense attorney, Chad Maddox. “They said it should be look at on a case-by-case basis.”