FBI Announces San Diego DMV Hearing Officer Pleads Guilty to Bribery in Federal Court, part 3- How to Win DMV APS Hearings Fair and Square

This is the third blog post on the former DMV Driver Safety Officer that plead guilty to bribery charges on February 3, 2015.  Ms. Benavidez resigned from her position in December of 2014 after the FBI raided her home and office.  Ms. Benavidez, as part of her guilty plea, admitted to inappropriately issuing temporary driver's licenses, granting suspension set asides when not warranted, and disposing of DUI driver files before they could be entered into the DMV computer system.

Please note that I learned a competitor was copying and pasting this original post.  I spent years litigating and studying administrative law (that governs DMV hearings), as well as traveling all over California to hear other attorneys lecture on this topic.  I maintain close relationships with attorneys in California to discuss developments in DMV APS hearings, and also discuss winning strategies.

The first part of the blog series touched the effect of the license suspension on DUI defendants and the FBI press release.  The second on the environment in which the DMV driver license suspensions occur- they are in a small room with just the hearing officer, a recording system, the driver's attorney and their witnesses.  This is a very close environment to cross examine a law enforcement officer- they can not run away.

In this blog post, I will discuss how to win at the DMV APS hearing.  It is not easy for all the reasons listed in the previous post- the standard is low (preponderance of the evidence), the judge is also the prosecutor, there are institutional pressures for DMV driver safety officers to suspend driver's licenses, and the appeal process is lengthy and expensive.

The first key to winning DMV hearings is to know the law.  The DMV hearing officer has the same roles as both a judge and prosecutor.  However, DMV hearing officers are not held to uphold the law- there is no DMV hearing officer equivalent to the State of California Commission on Judicial Performance.

Second, is to cite the appropriate law.  This may be intuitive, but it isn't.  Many times the difference between winning and losing is showing that you can win.  In legal environments, that means proper citations, or showing that the law can be utilized and accessed as a tool.  This is opposed to having a general idea of what the law is. An attorney showing they can win in the later stages (DMV Departmental Review, Civil Writ) the DMV is less likely to press to the later stages.

Third, object, Object, OBJECT.  Since the DMV hearing is recorded, and the only basis for a Departmental Review or civil litigation review is the audio, it is very important to preserve the record by objecting and citing the objection.  Only a skilled an experienced litigator knows when to object, and when to let procedural objections pass.  Ask your attorney about their litigation experience and success.

I must move to another blog entry to cover the remaining strategies.  The DMV hearing process is one of the most complex and difficult aspects of specializing in DUI law.  But it is the difficulty that makes it so enticing, and the victories so rewarding.  Similarly, anyone who cheats or violates the system is an affront to the system as a whole- no matter what their role.  Due to the severity of this violation, it will also be briefly discussed in the next post.?

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FBI Announces DMV Hearing Officer Pleads Guilty to Bribery in Federal Court

California Department of Motor Vehicles- Driving Change

On February 3, 2015, the FBI issued a press release that a former DMV Driver Safety Officer pled guilty to bribery charges in federal court.  The hearing officer, Ms. Benavidez, admitted that from 2005 to 2014 she accepted over $5,000 in bribes, including $250- $750 in checks, Ray Ban sunglasses, Juicy Couture handbag, and Cheesecake Factory gift certificate.

This is disturbing for a number of reasons, but it is not completely unfathomable.  Practicing criminal defense with a specialty in DUIs, I pride myself on my diligent DMV representation.  My DMV hearings are always in person.  The DMV hearing is also an excellent opportunity to learn more about the case.

The DMV hearing is not like any other administrative hearing.  First, the hearing officer is the prosecutor and the judge.  Many hearing officers are excellent in this capacity, with knowledge in the Evidence Code and applicable case law allowing the defense attorney to present their case and make a record.  Bad hearing officers do not know the Evidence Code and believe that confrontation with an attorney is as good as being an attorney.  Good DMV hearing officers are also familiar with the applicable legal standards- the elements need only be a preponderance of the evidence, as opposed to beyond a reasonable doubt in a court of law.

The DMV hearings are also reviewed by their supervisors- no “set aside” (when the suspension is ended, and the driving privilege is resumed) is found without a supervisor Making Sure that it is the only, just result.  Finally, DMV hearings have the very strong appearance that it is not only important to be right, but to be right for the correct reasons.  I call this the algebra factor- it's not the answer, but how you got to the answer.  It is a culture in the driver safety offices that it is their job to suspend licenses, and they are encouraged to do so.

The last factor is the remedy for a poorly decided hearing.  First, there is a “departmental review.”  In this scenario, a recording of the hearing, and all documentation, is sent to a DMV office in Sacramento.  The DMV charges $125 for this review, not including what your attorney may charge.  I've learned how to maximize the departmental review based on discussions with other defense attorneys comparing tactics and results.  During the review, the driver's license is still suspended.

Or, the driver can appeal the case to the Civil Division of Superior Court.  It is not a criminal case (recall, driving is a privilege, not a right).  So the filing fee is about $365.  The court assumes the finding of fact are correct, and it is the legal standard that is reviewed.  Prior to the decision, any DUI attorney worth his salt will motion the court for interim relief- that the client be allowed to drive pending the decision.  If not granted, the appeal can take months.

Meanwhile, the driver's suspension for a standard first time, no injury, DUI can be as low as one month with a five month restricted driver's license (restricted- can only drive to school, work, or other necessary events).  After the one month hard suspension, most clients are not interested in paying more money for a court review.  Either it is a very good case, DUI while on DUI probation (one year suspension), or there is little practicality in challenging the DMV's decision.  Long story short, there is little court review of DMV decisions.

So, you have a class of people that are generally vilified, an administrative structure built on suspending licenses, and little oversight for bad decisions.  Also, DMV hearing officers are not lawyers, and need not have a bachelor's degree to qualify.  Not that lawyers are a separate class, but we are licensed by the state and are sworn to uphold both the body and spirit of the law.  We are sworn to do our best to do the right thing, whereas DMV hearing officers are not.  They are also paid well, but not great.  *A review of a DMV driver safety officer job announcement has their maximum pay at around $60,000.

It creates a perfect environment for abuse.  The pressures and stresses on lawyers can also be significant, and will be discussed in the next blog entry.  These are lawyers that San Diego US Attorney Laura Duffy called, “co-conspirators."

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FBI Announces San Diego DMV Hearing Officer Pleads Guilty to Bribery in Federal Court, Part 2

Last week I wrote a blog post about the former San Diego Safety Officer (DSO, Hearing Officer) pleading guilty to bribery charges in federal court. Also, there was a brief discussion of the environment in which the DMV APS hearing takes place. APS stands for Administrative Per Se- which refers to the .08% BAC DUI license suspension. Because hearing officers are not lawyers, they are not regulated by the state. The appellate review process is extensive and expensive, so there is not a large body of law to guide hearing officers towards the right decision. By default, the right decision is to suspend the driver's license.

From the point of view of the lawyer, it can be very frustrating. In this blog post, some of those frustrations will be discussed.

In a DMV driver license hearing, all the hearing officer needs to prove is that three elements were met: that the driver was “driving” (put behind the wheel); that the driver was found to be greater than .08%; and that there was probable cause to stop the driver. The standard, because it is an administrative hearing, is a mere preponderance of the evidence- which is sometimes equated to 50%.

In a typical new client consultation for a DUI, the license can be their biggest concern. Particularly if a person is a salesperson, executive, single parent, or a number of other unique circumstances. I had one client that was a process server. And everyone, across the entire socio-economic spectrum, gets DUIs. When I tell a client their case can be dismissed and they still get their license taken away, they are crushed. And this can lead to temptation.

DUI hearings are very difficult for the reasons stated above and in the last post. From a lawyering perspective, we are taught the difference between what we know, and what we think. Even if what we “think” is the most likely scenario, it is essentially useless because it is not certain. Certain is what we know. The DMV has little incentive to follow the cold, hard evidentiary rules, as well as common sense differences between know and think, when, from their perspective, they are pulling the license of a drunk driver. In other words, who cares, or why should they care?

So a lawyer defending a driver in a DMV APS hearing can be right, and still lose. A better explanation may be that if the driver's case was a law school exam, he would win- the precise execution of evidentiary rules, and excluding all assumptions, there is no case. But in the real world, in the real DMV world, a driver's license can be suspended with a dare- if you think we're wrong, appeal it.

It falls on the lawyer to tell the bad news to the prospective driver- to be the voice of the system. It may be unfair, but there is societal pressure that supports the system- fair or not. For instance, the Union Tribune articles don't state, “single mother paid DMV employee to keep her license to keep her job and stay off welfare,” or “license suspension avoided so father can keep joint custody of his son.” But these are real world scenarios we see all the time.  Instead, the San Diego Union Tribune perceives the story as a conspiracy to keep DUI drivers on the road.

Which is the lead in to the last and final blog post in this series- how a successful San Diego DUI attorney handles- and wins- DMV APS hearings honestly and ethically.

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Why Josh Gordon plead guilty to DUI and why you shouldn't necessarily

DetailsCategory: DUI Blog

I always say: " 'Winning' a DUI case depends on the needs of each client." What is possible for one person is not even thinkable for another. Pro-footballer Josh Gordon of the Cleveland Browns illustrates my point nicely.

With the NFL changing its policy on DUIs and drugs, he and his lawyer decided it would be a great idea to pled guilty to DWI in North Carolina. In his case, it makes sense.
Why?
1. Mr. Gordon is already in a year-long ban for multiple violations of the NFL's substance abuse policy. Mr. Gordon can't afford to miss more games.
2. Under current NFL rules, a DUI/DWI will cost a player up to $50,000 but no suspension. If Mr. Gordon waits for the new rules, it will cost him an automatic 2 game suspension. Of course, he still has to face North Carolina's punishments: a 60-day suspended sentence, a $100 fine and $290 in court costs, and submit to a drug assessment as part of his guilty plea.

I can list many professions where if you did that, you'd be out of a job. Airline pilots and commercial truck drivers definitely lose their jobs as do those whose careers involve access to prescription narcotics. People who are seeking jobs miss out on interviews when their background check reveals a DUI conviction, especially for jobs requiring security clearance or access to confidential information. Potential doctors and lawyers cannot sit for licensing exams while on probation for an alcohol or drug-related offense. Some colleges expel students who have an alcohol or drug-related conviction.

You can lose a lot with a DUI. If you've been charged with a Gwinnett or Forsyth County DUI, make sure you consult with a local DUI lawyer before you decide how to plea. At the very least, download my free book "What You Should Know About Georgia DUI Laws" so you know exactly what you are facing. After all, a "win" in your case will look different than a win does for Josh Gordon.

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Pennsylvania Man Pleads Guilty After Killing Two Friends in DUI Crash

By guest-writer

A resident of Horsham, Pennsylvania was sentenced to eight years in prison this week after pleading felony DUI charges stemming from an accident in which he killed two of his childhood friends, according to a sobering report from the Philadelphia Daily News.

30-year-old Connor McNicholas had previously reached a plea deal with the prosecution that included his admission to committing several crimes, including homicide by vehicle, driving under the influence, and recklessly endangering another person.

The accident offered in August 2011, when McNicholas was reportedly driving his Honda Civic more than 100 miles per hour when it veered off the highway and crashed.

At the time, there were four passengers in the vehicle. Of those four passengers, two, Robert Walker Nagel and Edward Taylor Coombs, both only 19, were killed. McNicholas and other two passengers in the car were treated at a nearby hospital, but only sustained minor injuries.

When he was arrested, McNicholas blew a .117, which is well above the legal blood alcohol limit of .08. While his BAC reading is not as high as the level of many other DUI arrestees, it is still at a level where drivers are severely impaired.

Sources say that McNicholas was sentenced to a maximum of eight years in prison, but the judge left open the possibility that he could be released after four years, although only time will tell whether he is able to serve the shorter sentence.

As might be predicted, the sentencing hearing was very emotional, especially given the fact that the victims’ families were present.

And the victims’ families did not mince words when discussing the accident. Eric Coombs, the father of one of the teenage boys who died in the accident, told McNicholas that he held him “personally responsible for the death of my son” and said the drunk driver “took the heartbeat out of my life.”

In an equally emotional response, McNicholas told the court at the end of the hearing that “[i]t breaks my heart to know that they don’t have sons anymore and I’m responsible for that.”

The sentencing hearing closes one chapter in a nightmare story for McNicholas, who had just finished his sophomore year at Temple University before the accident occurred.

During his sophomore year, McNicholas had won all-conference accolades for his play on the school’s golf team, and he was named the Most Outstanding Rookie Performer during the Atlantic Ten Conference Championship tournament. Sadly, it will be a long time before he is able to golf again.

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When the Innocent Plead Guilty

I’ve often been told, "Well, if he pled guilty he must have done it!"  This is wrong on so many levels that I don’t know where to begin…  

Certainly, in DUI cases, the reasoning is wrong as drunk driving is somewhat unique among criminal offenses.  There are two offenses (in most states carrying identical penalties), and most individuals arrested will be charged with both: (1) driving under the influence of alcohol, and (2) and driving with a blood-alcohol level of .08% or higher.

Problem #1:  Since individual tolerance varies, it is difficult to presume impairment from a blood-alcohol level.  Further, at what point does the driver know he is impaired?

Problem #2:  How does the driver know what his blood-alcohol level is when he’s driving?  Can he tell the difference, for example, between .07% and .08%?  (Well, you say, he shouldn’t have been driving if he was even close.  So do we convict citizens who are "close" to driving over the speed limit?)

But there are larger issues involving those who plead guilty to DUI — issues involving the increasingly coercive nature of the judicial system, as a respected retired federal judge has noted today:

Why Do Innocent People Plead Guilty?

Huffington Post, June 6 – Prison is Hell for the guilty; it is difficult to envision what it must be like for the innocent. Brian Banks is yet another story of a person not only wrongfully imprisoned, but imprisoned based upon his own "voluntary" act. He was exonerated after serving five years for a rape he did not commit. How and why do innocent people confess or plead guilty to crimes that they did not commit? Roughly 20 percent of those that have been exonerated confessed to the crimes with which they were charged and convicted. Most of those involved persons who had actually gone to trial, but we have no way of knowing how many there are who merely entered guilty pleas through bargains and never appealed as a result. Although we hear and read about criminal trials, the reality is that only about 5 percent actually go to trial and the balance are resolved by plea agreements…

What apparently happened here (based upon his version) is all too typical of what happens in the criminal justice system. I call it the "Ins of Court" — intimidation by the prosecution and incompetence by the defense. The defendant, frightened, most often poor, uneducated, a minority member is advised that a trial is likely to end with a conviction and a long sentence, whereas a plea will guarantee a much shorter sentence. Despite his protestations of innocence, the defendant seeks guidance frequently from an over-worked, underpaid defense lawyer who would much prefer a quick deal rather than a long drawn out trial. Of course, not all defense counsel fit that description. Many do not, but even the best and most devoted are required to put this draconian choice to their clients — a guaranteed short sentence versus a potentially long one — possibly life in prison.

The problem is further complicated by the fact that it is more difficult to set aside a guilty plea than a conviction after trial. Once a person has admitted guilt and spelled out the details of the crime sufficient for the court to accept the plea, the chances of reversing such convictions are very slight if not nil. Most do not try. Mr. Banks had the fortitude to continue his fight even after he had been paroled and was fortunate in eliciting a recantation from the complaining witness. Such instances are very rare. Thanks to the tenacity of the California Innocence Project it happened here.

The reality is that without plea bargains the entire criminal justice system would come to a halt. Charges would be tried ten years after they were made. The only solution is vigilance by all those involved. The prosecutor, defense counsel and the court must be satisfied of the defendant’s guilt before urging or accepting a plea. I recognize that there is no avenue to absolute certainty because the knowledge of guilt or innocence lies with the defendant, but all involved must strive not to imprison the innocent — even those who profess to be guilty.

It is common in drunk driving cases for the prosecution to offer the defendant a plea bargain, for example, of a guilty plea to the .08% charge with a dismissal of the DUI charge, and a promise of only two days in jail — with the understanding that if he goes to trial and loses, the judge will sentence him to 60 days in jail.  (Note: Most judges dislike trials, as they back up their busy caseloads, so are anxious to dispose of cases by plea — and inclined to punish those who "waste the court’s time".  Accordingly, it is often commonly understood in any given courtroom that the sentence will be far worse if you refuse the plea bargain offer and insist on your constitutional right to jury trial.)

So….The defendant thinks he is probably innocent and his attorney tells him that you has a good case:  in his opinion, he has a 50% chance of being acquitted on both counts.

What would you do?

This entry was posted on Wednesday, June 6th, 2012 at 8:45 am and is filed under Duiblog. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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Former Massachusetts Police Chief Not Guilty in Gun Homicide Of Child-Attorney Sam’s Take

Today is the first holiday in quite a while that former Pelham Police Chief Edward Fleury (hereinafter, the “Ex-Defendant”) can breathe freely. The cloud of criminal allegations which has surroundied him since 2008 has finally lifted. He was finally acquitted of homicide charges in the tragic death of the late young Christopher Bizilj.

The Ex-Defendant’s firearms training company co-sponsored an annual Machine Gun Shoot and Firearms Expo at the Westfield Sportsman's Club, about 10 miles west of Springfield. Young Christopher’s dad brought the 8-year-old to the event. In doing so, he also signed a waiver acknowledging the risks and absolving anyone else of liability should something bad occur.

Something very bad did.

The boy was shooting a 9 mm micro Uzi at some pumpkins, when the gun kicked back and shot him in the head. The Ex-Defendant was not present in the area in which this took place, although the father and other personnel were.

Prosecutor William Bennett told the Springfield jury that the ExDefendant was criminally reckless in running the event because he allowed children to illegally shoot machine guns under the supervision of a firing range officer who was 15 at the time and didn't have a firearms license or certification.

The accident was shown, via graphic videotape, to the jury during the course of the trial.

The defense denied the allegations and blamed the boy's father, an emergency room physician, for allowing Christopher and his then-11-year-old brother to shoot such a dangerous weapon.

Neither the father nor the teenage range officer were charged.

The jury returned its verdict on its first full day of deliberations. They acquitted the Ex-Defendant of the involuntary manslaughter as well as three charges of furnishing machine guns to minors.

I have dealt with countless gun crimes in my quarter century experience in the criminal justice system. I have often told you that when a tragic accident happens, we always seem to need somebody to blame. Nowhere is this more true than with gun travesties like this one.

Fortunately for the Ex-Defendant, the jury was able to see beyond that need...maybe. The defense, of course, seemingly accepted that somebody may have to be to blame and pointed to the father. While perhaps distasteful to many, one would imagine that he was a more likely candidate than the Ex-Defendant.

Of course, I would not wave any victory flags for either the Ex-Defendant or the father. I doubt either is celebrating right now. A little boy is dead and you may be assured that this case has haunted and will continue to haunt the Ex-Defendant for a long time to come. As for the father...one can only imagine the turmoil he is in. I would venture to say that there is nothing any criminal justice system could do to him that is worse than what he is already doing to himself.

This case, however, may not end here. There is likely to be a civil law suit brought by the family against the Ex-Defendant and others (there are, by the way, others who were charged criminally and are awaiting trial).

“But, Sam...there was a waiver signed. How could the Ex-Defendant be charged or sued?”

First of all, a waiver cannot bar criminal prosecution. It is, if anything, an agreement between the father and the Ex-Defendant. While it is supposed to shield , in this case the Ex-Defendant and the company, that may make it hard for the father to prevail at trial, but there is alot of time and money between the initiation and trial of a civil lawsuit. In other words, it may be more expedient to settle. Further, there area are always legal arguments to make to discount the waiver.

If you are dealing with a civil lawsuit, you should get experienced civil litigation attorneys. Might I suggest the good folks at Altman & Altman, LLP?

If you are dealing with a potential criminal action, you want to have experienced counsel in that realm.

If you would like that to be me, , please feel free to call me to arrange a free initial consultation at 617-492-3000.

In the meantime, take a moment or two to think warm thoughts in the memory of a true American hero, Martin Luther King, Jr.

For the original story upon which today’s blog is based, please go to http://www.boston.com/news/local/breaking_news/2011/01/gun_fair_organi.html

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Robert Rizzo Pleads Guilty to DUI

Celebrity DUI

Huntington Beach, California. Robert Rizzo used to be the City Manager of Bell, California, but he left his post after some trouble. The monkey on his back was a DUI arrest and his “generous” salary. Bell is a small city surrounded by Los Angeles and as of the 2000 census had a population of 36,664. Apparently, the small community was not happy that Rizzo was making $800,000.00 a year. That seems to be quite excessive when you compare other politician salaries. For example, the current Governor of Washington State, Christine Gregoire, earns $166,891.00 annually. California Governor Arnold Schwarzenegger makes only $212,179.00 a year.

Not only was Rizzo grossly overpaid for his job, but he also left a black eye on the office when he was busted for DUI. Rizzo was reported for crashing his car into a mailbox. Officers tracked Rizzo to his home and conducted a thorough investigation. Rizzo was asked to participate in the field sobriety tests, but officers stopped the tests because Rizzo could not keep his balance. Then police collected some damning evidence; Rizzo produced a 0.28 breath test sample. California’s legal limit is 0.08.

Even though he blew well over the limit Rizzo was able to avoid jail from his DUI conviction. He will pay a fine, complete 10 days of community service and will need to complete a 9 month substance abuse program.

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Robert Rizzo Pleads Guilty to DUI

Celebrity DUI

Huntington Beach, California. Robert Rizzo used to be the City Manager of Bell, California, but he left his post after some trouble. The monkey on his back was a DUI arrest and his “generous” salary. Bell is a small city surrounded by Los Angeles and as of the 2000 census had a population of 36,664. Apparently, the small community was not happy that Rizzo was making $800,000.00 a year. That seems to be quite excessive when you compare other politician salaries. For example, the current Governor of Washington State, Christine Gregoire, earns $166,891.00 annually. California Governor Arnold Schwarzenegger makes only $212,179.00 a year.

Not only was Rizzo grossly overpaid for his job, but he also left a black eye on the office when he was busted for DUI. Rizzo was reported for crashing his car into a mailbox. Officers tracked Rizzo to his home and conducted a thorough investigation. Rizzo was asked to participate in the field sobriety tests, but officers stopped the tests because Rizzo could not keep his balance. Then police collected some damning evidence; Rizzo produced a 0.28 breath test sample. California’s legal limit is 0.08.

Even though he blew well over the limit Rizzo was able to avoid jail from his DUI conviction. He will pay a fine, complete 10 days of community service and will need to complete a 9 month substance abuse program.

View the original article here

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