Administrative hearings

• Author: Patrick T. Barone
• Pages: 1141-1216

ADMINISTRATIVE

HEARINGS

8-1

CHAPTER 8

ADMINISTRATIVE HEARINGS

§800 IN GENERAL

§801 Criminalization of Refusals

§802 Driver License Hearing Administrative Fee Facially Unconstitutional

§810 IMPLIED CONSENT HEARINGS

§820 REFUSAL TO SUBMIT TO TEST

§821 Forms of Refusal

§822 Reasonable Refusal

§822.1 Ingestion of Medicine as Refusal

§822.2 Other Medical Grounds for Refusal

§822.2.1 Inability to Provide Urine Sample Suff‌icient to Support Refusal

§822.3 Defendants May Assert Fifth Amendment Privilege Against Self-Incrimination

When Requested to Testify Regarding Ability to Pay for Independent Test

§822.4 Refusal and Fear of AIDS

§822.4.1 Driver’s Fear of Needles Excuses Refusal to Submit to Chemical Test

§822.4.2 Driver Failed to Meet Burden of Showing That Fear of Invasive Procedures

Rendered Him Incapable of Making Knowing and Conscious Refusal

§822.5 Motorist’s Attempt to Assert Right to Independent Testing Does Not Constitute Refusal

§822.6 State’s Implied Consent Warning Containing Misleading Information Cannot Be Used

Against Non-Resident

§822.6.1 Implied Consent Law Satisf‌ied Where Motorist Was Read

Two Different Implied Consent Warnings at Same Time

§822.7 Refusal to Be Tested Can Be Grounds to Suppress Chemical Test Results

§822.8 Mental Illness Does Not Excuse Refusal to Submit to Chemical Test

§822.9 Off‌icer Had Right to Choose Type of Chemical Test for Motorist

§822.10 Refusing Breath Test Was Obstruction of Justice

§823 Rescinding and Curing Refusals

§824 The Right to Seek Counsel

§824.1 Right to Counsel at Administrative License Suspension Hearings

§824.2 Defendant Entitled to Qualif‌ied Sign Interpreter

§825 Confusion as a Defense

§825.1 Decisions Address Confusion to Defendant

§825.2 O’Connell Warnings Not Required Where Motorist

Intentionally Fails to Supply Adequate Breath Sample

§826 Silence and Miranda

§827 Intoxication Invalidated Refusal

§828 Implied Consent Requirements Need Not Be Met to Sustain DWI Conviction

ADMINISTRATIVE

HEARINGS

Defending Drinking Drivers 8-2

§829 Miscellaneous Defenses

§829.1 Failure to Allow Driver’s Reasonable Request to Choose

Urine Over Blood Leads to Dismissal of Case

§829.2 Refusal to Sign Waiver of Hospital Liability

§829.3 Defendant’s Belligerent Behavior Does Not Relieve

Off‌icer of Obligation to Read Implied Consent Rights

§829.4 No Refusal to Submit to Chemical Test Where Driver Was Simply Uncooperative

§829.4.1 “Futility” Does Not Excuse Statutor y Compliance

§829.5 Refusal of Blood Test Was Not “Chemical Test” Refusal

§829.6 Defendant Did Not Refuse Breath Test When He Failed to Provide Adequate Sample

§829.6.1 Driver Bears Burden of Showing Inability to Take Breath Test

§829.7 Parental Consent and Chemical Testing

§829.8 Valid Search Warrant Does Not Trump Statutory Prohibition on Chemical Test Results

§829.9 Implied Consent Statute Requiring Chemical Testing of Operator Involved in Traff‌ic

Accident Resulting in Serious Injury or Death Held Unconstitutional

§829.9.1 Police Failed to Make Reasonable Effort to Convey

Implied Consent Warnings Based on Language Barriers

§829.10 Incomplete Implied Consent Advisements Required Driver License Reinstatement

§830 ADMISSIBILITY OF FACT OF REFUSAL

§830.1 Defendant’s Sixth Amendment Right to Counsel Not Triggered by Request for Chemical Test

§831 Other Challenges to Admissibility

§831.1 Incomplete Warning Precludes Use of Refusal as Evidence

§831.2 Defendant’s Refusal to Submit to a Chemical Test

Suppressed Based on Tardy Implied Consent Warnings

§832 [Reserved]

§833 Refusal on Fifth Amendment Grounds

§834 State Constitutional Rule Barring Admission of Evidence of Refusal

to Submit to Field Sobriety Test Is Not Limited to Explicit Refusals

§835 Exclusionary Rule Does Not Apply in Administrative Refusal Hearing

§836 Retroactive Application of Statutory Amendment to Allow Admission of Defendant’s Refusal

to Take Breath Test Did Not Violate Right Against Self-Incrimination

§837 Dealing With the Refusal at Trial

§840 ADMINISTRATIVE LICENSE SUSPENSION HEARINGS

§841 Administrative Suspension Hearings: Stop-and-Snatch Laws

§841.1 Investigation and Discovery in the Administrative Hearing

§842 ABA License Revocation Recommendations

§843 Constitutionality of License Revocation Challenged

§843.1 Late Abstract Leading to License Suspension Violated Due Process Rights

§844 Other License Suspension Hearings

§844.1 Circumstantial Evidence of Intoxication Insuff‌icient to Support Pre-Trial Suppression

of Driver’s Operator’s Permit Under California’s Administrative Per Se Law

§845 Court Upholds Suspensions Without Hearing

§846 Laboratory Printouts Are Admissible in Administrative Suspension Hearings

§846.1 Field Sobriety Test Evidence Admissibility Governed by APA and Not Code of

Evidence in Administrative License Hearing

§847 Statutes Must Be Substantially Similar for Purposes of Driver’s License Compact

§847.1 DMV Suspension of Driver’s License Pursuant to Driver’s License Compact Upheld

§847.2 Administrative License Suspension Is Not a Suspension for Violation of Drunk Driving

Laws Requiring a Mandatory 90-Day Jail Term

§848 DMV Findings Ruled Unconstitutional

§849 State Must Prove by a Preponderance of the Evidence That the Defendant Was Operating the

Vehicle in Civil License Suspension Proceeding

ADMINISTRATIVE

HEARINGS

8-3 Administrative Hearings

§850 IMMIGRATION HEARINGS AND DRUNK DRIVING

§851 Is Drunk Driving a Crime of Violence?

§852 Leocal Decision Applies Retroactively

§853 Aggravated Driving Under the Inf‌luence Qualif‌ied as

“Crime of Moral Turpitude” for Which Alien Could Be Removed

SEE DIGITAL ACCESS FOR RELATED FORMS

Form 8-1 Motorist’s Request for Administrative Review of Implied Consent Revocation