Order of Set Aside from the DMV?

[Tony N.]

Hi,

Ok, so here's the story. I was driving home with my GF and I got pulled over for not having a front license plate. After CHP pulled me over, they said they smell alcohol and asked me some questions and had me perform a field test.

I got arrested by CHP on 8/12 for a suspicion of DUI after I completed a field test, refused to take the breath test and opted for the blood test.

I'm was very nervous about my blood test results since I felt I was borderline pass/fail. I tried to call my local CHP office to see if they would release the results and they told me to call the DA office. I called the DA office and they told me they do NOT release results until the court arraignment date.

Then I called DMV driver safety within 10 days after my DUI arrest to arrange for a DMV hearing which is scheduled to be on 9/23/11. A couple days later, I got a letter from the DMV dated 8/22 confirming my hearing appointment along with a temporary license paper which prolong my 30-day driving privileges until the end of the hearing.

A week later I get a "Order of Set Aside" dated 8/27 from the DMV without submitting any papers or talking to anyone. After searching and searching I found that this means that the DMV will give me my license back! (See below)

Question 1: Could someone please confirm that the DMV will give me my license back and the suspension has been revoked? I'm assuming the DMV would not "set aside" the suspension if they didn't have the blood results. I just want to make sure for my specific case that the DMV is not "setting aside" my suspension while they wait for the criminal court hearing then reenact the suspension. I also read that the judge does not have the power to suspend my license and the DMV holds that power since the law change of 2005.

Question 2: Does this mean that my BAC was indeed below 0.08?!

Question 3: What should I expect during my court arraignment for my situation? I know the DA may file the charges even if my BAC was below 0.08, but I think I have a way better chance of winning if that's the case.

Question 4: If the DMV did indeed set aside my suspension, do I still have to go through the DMV hearing?

Thanks in advance!

Regards,
Tony

 

[CdwJava]

I'm was very nervous about my blood test results since I felt I was borderline pass/fail.

Understand that there are two DUI sections. One for having a BAC over the per se limit of .08 (CVC 23152(b)) and the other for being impaired on drugs (including legal ones) or alcohol (CVC 23152(a)) and not over the limit.

At least you are honest about the possibility that you might not have done so well. Too many posters here swear they passed with flying colors ... and many people who are tanked on the street say the same thing. So, kudos to you for acknowledging the possibility.

I tried to call my local CHP office to see if they would release the results and they told me to call the DA office. I called the DA office and they told me they do NOT release results until the court arraignment date.

That's correct. Discovery information will no the available to you (or, usually, your attorney) until arraignment. It might also be possible that the blood test results are not back, yet. Those can sometimes take a few weeks or longer, depending on the ab used for testing and the backlog. DOJ has about half the number of technicians they had just a few years ago.

Then I called DMV driver safety within 10 days after my DUI arrest to arrange for a DMV hearing which is scheduled to be on 9/23/11. A couple days later, I got a letter from the DMV dated 8/22 confirming my hearing appointment along with a temporary license paper which prolong my 30-day driving privileges until the end of the hearing. (See below)

Standard fare.

A week later I get a "Order of Set Aside" dated 8/27 from the DMV without submitting any papers or talking to anyone. After searching and searching I found that this means that the DMV will give me my license back! (See below)

What this means is that either the test results came back UNDER .08 and were forwarded to the DMV hearing officer who cancelled the appointment, or, there was some defect in the paperwork or no articulation of belief why the officer believed the result would come back at .08 or above and they cancelled the appointment for lack of standing.

In any event, if found guilty of DUI your license could still be suspended later.

Question 1: Could someone please confirm that the DMV will give me my license back and the suspension has been revoked? I'm assuming the DMV would not "set aside" the suspension if they didn't have the blood results. I just want to make sure for my specific case that the DMV is not "setting aside" my suspension while they wait for the criminal court hearing then reenact the suspension. I also read that the judge does not have the power to suspend my license and the DMV holds that power since the law change of 2005.

See above.

And, yes, if convicted, your license will be suspended for a time by the DMV. The court can also establish probation conditions restricting driving as well.

Question 2: Does this mean that my BAC was indeed below 0.08?!

The cancelling of the appointment COULD mean that the test results were under .08 ... or, it could mean something else entirely - as mentioned above.

Question 3: What should I expect during my court arraignment for my situation? I know the DA may file the charges even if my BAC was below 0.08, but I think I have a way better chance of winning if that's the case.

You can expect to be arraigned on the charges. If .08 or higher, it'll be 23152(b) ... if lower, 23152(a). Some counties are too busy to deal with most (a) offenses so they tend to drop them or offer quick plea deals. Others will offer plea deals to "wet reckless" per 23103.5 for anything that might be about .12 or less.

Your best bet is to secure the advice of legal counsel beforehand. A local attorney may have some idea of your prosecutor's charging practices.

Question 4: If the DMV did indeed set aside my suspension, do I still have to go through the DMV hearing?

If they have cancelled the hearing, then no. If the hearing is still scheduled, then you might want to call just to make sure that you read it all correctly.

Remember, do not drink and drive - the life you save may be that of my child's.

 

[Tony N.]

Thanks for the helpful response.

I did some more reading on the CVC 23152(a) charge and I found the following:

Question: How does the DA prove that I was 'under the influence'? Usually, there are 2 ways to prove this: 1) you were in involved in an accident, or 2) your so-called 'bad driving' you swerved into another lane, failed to obey a red light, drove around at night with your headlights off. For purposes of CVC Section 23152(a), 'under the influence' means that your ability to drive safely was 'impaired,' so that you weren’t as cautious or alert as a completely sober driver would have been in similar circumstances.

I was pulled over because I did not have a front license plate. I did not swerve into other lanes, fail to obey red lights, etc. Could the DA use my field sobriety test (FST) against me to prove that I was impaired? I think I did well on most of the FST, but I wiggled a bit during the one feet up 6 inches off the floor test. I don't have good balance so I would fail that test even if I were completely sober.

I know I should be asking an attorney this question, but you seem to know quite a lot about this stuff so if you don't mind please give me your opinion. Do you think I could be charged with CVC Section 23152(a) if I was not pulled over for a traffic infraction?

 

[CdwJava]

Could the DA use my field sobriety test (FST) against me to prove that I was impaired?

Absolutely! Those tests are designed to detect impairment - that is what they are for.

I think I did well on most of the FST, but I wiggled a bit during the one feet up 6 inches off the floor test. I don't have good balance so I would fail that test even if I were completely sober.

One test by itself has a mediocre reliability rating ... taken as a battery, the tests are quite reliable. And, as a note, there are multiple "clues" that are being watched for during the FSTs, and they do not all have to do with the obvious. Wobbling or putting the foot down during the one leg stand are just two of them.

I know I should be asking an attorney this question, but you seem to know quite a lot about this stuff so if you don't mind please give me your opinion. Do you think I could be charged with CVC Section 23152(a) if I was not pulled over for a traffic infraction?

I provide instruction for DUI, so I have some knowledge of it.

Yes, you could be charged with 23152(a) if there is sufficient proof of impairment. If the DA feels that the officer's observations is sufficient to prove impairment, he will file. He might seek a plea deal and then drop it if you do not bite, or he might go full bore no matter. Some counties show zero tolerance when the case is even marginal and others will not pursue any borderline (a) violations due to a lack of resources. It is hard to say.

 

[Tony N.]

At the time of the arraignment, if I do not have an attorney yet, could I ask for additional time to request for counsel?

There are so many uncertainty with my case that I need additional information in order to make a decision.